SECURITIES AND EXCHANGE COM'N v. GLASS MARINE INDUSTRIES

• Decision Date: 06 June 1961
• Docket Number: Civ. A. No. 2276.
• Citation: 194 F. Supp. 879
• Parties: SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. GLASS MARINE INDUSTRIES, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Delaware

194 F. Supp. 879

SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. GLASS MARINE INDUSTRIES, INC., a Delaware corporation, Defendant.

Civ. A. No. 2276.

United States District Court D. Delaware.

June 6, 1961.

John J. Enright, and John W. Vogel, Chicago, Ill., for Securities and Exchange Commission.

H. James Conaway, Jr. (Morford, Young & Conaway), Wilmington, Del., and Lawrence A. Coles, Jr. (Thompson, Raymond, Mayer, Jenner & Bloomstein), Chicago, Ill., for defendant.

Hayden Leason, Intervenor, pro se.

Arthur J. Sullivan (Morris, James, Hitchens & Williams), Wilmington, Del., and Saul S. Nevins, New York City, for Special Intervenor, Lancer Industries, Inc.

LEAHY, Senior District Judge.

The Securities and Exchange Commission sues Glass Marine Industries, Inc., a Delaware corporation for violating the Securities Acts of 1933 and 1934.¹ At trial plaintiff made a blanket offer of 260 documentary exhibits and 27 depositions containing 4700 pages of testimony. The offer did not disclose the specific purpose for which the writings were offered. Further, plaintiff did not articulate against which party defendant (corporate defendant or individual intervenor), or both, or on what grounds the evidence was to be introduced. Absent such specificity, the offer has not, as yet, been admitted.² In addition to lodging its general objection to the sweeping and pervasive nature of plaintiff's offer, the corporate defendant³ has specifically objected to the admission of seven particular documents. Again, the purpose for which these documents are offered has not been stated. Defendant's objection assumes, however, they are proffered as admissions against the corporate defendant. Considering plaintiff's counsel's statements at trial⁴ this assumption appears to be correct. The documents offered are notes taken at a Glass Marine directors meeting by Keennan Hanley (a director); an affidavit signed by him but written by an agent of the SEC; and five transcripts of investigatory statements taken at a private examination during the course of an investigation of defendant Glass Marine Industries, Inc., and conducted by agents of the SEC in October, 1960. Defendant objects to the introduction of the Hanley notes and affidavit, as admissions of the corporation, because these documents were not subject to the usual tests of credibility and, at best, are self-serving statements of a person having interests which may be adverse to those of the corporation. Defendant's objections to the admission of the investigatory transcripts is grounded upon two theories: 1. The witnesses, when giving their statements before the investigatory agents of the SEC were not acting within the scope of any corporate authority; their interests could have been adverse to those of the corporation; therefore, their statements could not bind the corporate defendant; 2. the corporate defendant did not have opportunity to test the credibility of the statements of these persons by cross examinations; therefore, admission of these transcripts, as evidence, against defendant corporation would constitute an erosion of the protective barrier traditionally afforded defendants by orthodox rules of evidence. The witnesses, whose transcripts are now offered, are:

A. Geary Leason, director and secretary of Glass Marine at the time of the investigation.

B. Nicholas J. Savaiano, director, president, treasurer, and general manager of Glass Marine at the time.

C. Richard E. Moore, director of the corporation at the time. He was uncertain whether he was also a vice president of Glass Marine at that time.⁵

D. Hayden Leason, intervenor in this action, director and vice president⁶ of the defendant corporation at the time of the investigation.

E. Saul Nevins, counsel for Lancer Industries, Inc., and, as such, intimately concerned with the Lancer chapter of the Glass Marine story. He has held no official position with defendant Glass Marine.

These witnesses, with the exception of Moore, were not present at trial. As stated, they did appear and gave statements under oath to the SEC during its investigation. The investigation was ex parte and held in camera. The witnesses appeared either upon subpoena or threat of subpoena. All were accompanied by counsel, except Nevins who as an attorney served as his own counsel. The corporate defendant, here, was not represented by counsel in these investigatory proceedings and was not afforded the opportunity to cross-examine any of the individual witnesses.⁷

1. Defendant's blanket objection to the evidence as offered suffers from the same disabilities attaching to plaintiff's offer of proof. The bald fact is the court is asked to rule on this evidence in vacuuo.⁸, ^8a Plaintiff has not indicated what portions of the contested documents are to be introduced for what purpose. Until this requisite specificity is supplied, it is difficult to determine what it is the defendant objects to.

2. In addition, defendant asserts these documents do not, in whole or in part, meet the standards applicable to admissions of a corporate party and should be excludable as hearsay. Before considering the merits of defendant's position a word, in passing, should be said about the status of "party admissions" in the field of evidence. Extrajudicial admissions of a party are generally receivable against the party, while present, to prove the truth of the matter asserted therein. As such, an admission differs from a dying declaration, declaration against interest or a statement used for impeachment. It is the considered opinion of authorities on evidence that an admission is not to be classed as an exception to the hearsay rule. For example, Judge Wyzanski in United States v. United Shoe Machinery Corporation, D.C.Mass., 89 F.Supp. 349, 351, correctly observed:

"It has sometimes been erroneously said that extrajudicial admissions are receivable against a party as an exception to the hearsay rule and that the reason for the exception is either because in that party's eyes the statement must at one time have seemed trustworthy or because it is only fair to put upon that party the burden of explaining his own declaration. But the masters of the law of evidence now agree that this is not the correct rationale. Morgan, The Rationale of Vicarious Admissions, 42 Harv.L.Rev. 461; Wigmore, Evidence, 3d Ed. § 1048. See Napier v. Bossard, 2 Cir., 102 F.2d 467, 468; Milton v. United States, 71 App.D.C. 394, 110 F.2d 556, 560. Unlike statements of fact against interest (sometimes loosely called admissions), an extrajudicial admission of a party is receivable against him not as an exception to the hearsay rule but as not being within the purpose of the hearsay rule. The hearsay rule is a feature of the adversary system of the common law. It allows a party to object to the introduction of a statement not made under oath and not subject to cross-examination. Its purpose is to afford a party the privilege if he desires it of requiring the declarant to be sworn and subjected to questions. That purpose does not apply, and so the hearsay rule does not apply, where the evidence offered against a party are his statements.

"The question remains as to what are `his' statements. The answer is to be found not in the law of evidence, but in the substantive law, particularly of agency and of corporations. Wigmore, Evidence, 3d Ed., § 1078, note 1; Morgan, supra, p. 463."

In this case, to allow the ex parte writings or investigatory transcripts in part or in whole as admissions of the corporate defendant, it must be established that the particular declarant, in making the proffered statement, was acting as a corporate alter ego; i. e., his relationship was such as to "bind" the corporation. This plaintiff has not done. By the same token, I cannot, at this time, sustain defendant's objection without first exploring the contents and grounds of admissibility for the particular documentary offers.

As to the admissibility of the investigatory transcripts, defendant argues that the rule stated in Vohs v. A. E. Shorthill Co., 124 Iowa 471, 100 N.W. 495, 497, is applicable here and should control. There, testimony of corporate agents taken on the witness stand was offered as admissions of the corporation. The court said:

"* * * This testimony was not introduced for the purpose of impeachment, but as containing declarations of Spiers and Johnson as agents of the corporation. But we think it is clear that the corporation is not bound by declarations made by its officers or agents while on the witness stand. While testifying they are not acting for the corporation, but are speaking for themselves individually. It is well settled that the declarations of an agent are binding upon his principal only when made while the agent is engaged in the business in reference to which the statement is made, and while acting within the scope of his authority. Howe Machine Co. v. Snow, 32 Iowa 433; McPherrin v. Jennings, 66 Iowa 622, 24 N.W. 242. We know of no authority whatever for holding a principal bound by the declarations of his agent, while made on the witness stand."

Other cases (though not cited by the defendant) are in accord with this approach.⁹ It is doubtful, however, that this rule applies to testimony given by officers, directors or agents during the course of an agency (i. e., the SEC) investigation of the corporation. Pan-American Petroleum & Transport Co. v. United States, 273 U.S. 456, at page 499, 47 S.Ct. 416, at page 422, 71 L.Ed. 734.¹⁰ The rule that an officer of a corporation, while testifying as a witness, may not per se bind the corporation has the attractive feature of guilotine simplicity and hence is easily applied. All too often, however, such mechanical facility has lured courts into the maze of abstract legal reifications, away from the pursuit of the actual critical facts of the case. The concept "authority to bind" has no meaning unless related to a specific fact situation....