Shell v. Parrish

• Decision Date: 24 September 1971
• Docket Number: No. 20952.,20952.
• Citation: 448 F.2d 528
• Parties: Louis E. SHELL and Catherine Shell, Parents and Next of Kin of Louis Pat Shell, Deceased, Plaintiffs-Appellees, v. Charles PARRISH, Individually and dba Parrish Construction Co., Defendant, Cordova Sand and Gravel Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

448 F.2d 528 (1971)

Louis E. SHELL and Catherine Shell, Parents and Next of Kin of Louis Pat Shell, Deceased, Plaintiffs-Appellees, v. Charles PARRISH, Individually and dba Parrish Construction Co., Defendant, Cordova Sand and Gravel Company, Defendant-Appellant.

No. 20952.

United States Court of Appeals, Sixth Circuit.

September 24, 1971.

Leo Bearman, Jr., Memphis, Tenn., for defendant-appellant; Leo Bearman, Memphis, Tenn., on brief.

Lucius E. Burch, Jr., Memphis, Tenn., for plaintiffs-appellees; James T. Allison, Clifton & Mack, Burch, Porter & Johnson, Memphis, Tenn., on brief.

Before WEICK, CELEBREZZE and KENT, Circuit Judges.

WEICK, Circuit Judge.

In an action for damages for the wrongful death of their 9-year-old son, Louis Pat Shell, the plaintiffs recovered a judgment against the defendants in the District Court, which judgment was entered upon a jury verdict in the amount of $200,000. Subsequently the defendant Parrish settled the judgment against him for $25,000, thereby reducing the judgment to $175,000. Cordova Sand and Gravel Company (Cordova) has appealed therefrom.

The accident occurred in Tennessee, and the law of that state governs as to the substantive issues in the case.

Cordova was the owner of a tract of land, a large portion of which had already been developed as a 108-acre-subdivision for residences. The remainder of the land, consisting of a field, was in the process of development. Cordova had contracted with Parrish, an independent contractor, for the construction of sewers, drainage, curbs and gutters in the field. Parrish dug a trench about seven feet deep and laid eight-inch pipe therein. The pipe was covered with sand and dirt, but the trench had not been filled in Dirt was piled on both sides of the trench. On the day of the accident no men were working at the trench because it had rained previously and the ground was too wet.

The original complaint alleged that Louis Pat Shell, in company with another boy, was playing in the area of the open trenches. It further alleged:

"The boys were walking along the edge of an open sewer trench when the edge where Louis Pat Shell was walking suddenly gave away and he fell in the trench with the side of the trench caving in on top of him. * * * And he died from suffocation * *."

It was the claim of plaintiffs that the area had been used by children as a playground; that it also constituted an attractive nuisance; that the boys were not trespassers; and that the defendants were negligent in leaving the trenches open and unguarded, in not filling them with earth or properly shoring them.

At the commencement of the trial, plaintiffs were granted leave to amend their complaint by eliminating the allegation that the boys were walking along the edge of the open sewer trench which suddenly gave away causing Pat to fall in the trench. The amended complaint alleged instead that the boys were walking inside the open trench when suddenly and with no warning the side of one bank caved in on top of Pat Shell.

The allegations of the original complaint constituted an admission against interest, but defendants did not offer that complaint in evidence. Where a pleading has been amended or superseded by another pleading, it is necessary that a party offer in evidence the original or superseded pleading if he desires to make use of an admission therein contained. Raulie v. United States, 400 F.2d 487, 526 (10th Cir. 1968); Giannone v. United States Steel Corp., 238 F.2d 544, 547 (3d Cir. 1956); Borel v. United States Cas. Co., 233 F.2d 385, 387-388 (5th Cir. 1956); 4 Wigmore on Evidence, § 1067; 31A C.J.S. Evidence § 304; 29 Am.Jur.2d Evidence §§ 693, 688.

While we have on one occasion on appeal taken judicial notice of a superseded pleading, Pennsylvania R. R. v. City of Girard, 210 F.2d 437 (6th Cir. 1954), Contra, Borel v. United States Cas. Co., supra, we think the better rule is against such practice.

Cordova contends that the District Court erred in excluding from the Certificate of Death, which it offered in evidence, the words "Victim fell in open ditch." The District Court excluded the language from the certificate because the physician who signed it had obtained that information from investigating officers and because Pat's companion, Steven Giakis, had given testimony which "overwhelmingly refutes it" that information.

Tennessee statute provides:

"Each certificate provided for in this chapter, filed within six (6) months after the recorded event occurred, shall be prima facie evidence of the facts therein stated. * * *" T.C.A. § 53-413.

The question whether the evidence of the Giakis boy was sufficient to rebut the prima facie evidence provided by the Certificate of Death was for the jury, and not the Court, to decide. The fact that the doctor who signed the certificate obtained some of the facts stated therein from investigating officers goes to the weight to be given to it and not to its competency.

It cannot be gainsaid that the statement, "Victim fell in ditch," is a statement of fact. It was included in the answer to a question in the form which Tennessee law required to be executed. The authority of Tennessee to enact such a statute in dealing with its vital statistics, has not been challenged.

In our opinion the Certificate of Death in its entirety was admissible in evidence under state as well as federal law. The Court committed prejudicial error in excluding part of the Certificate.

Under Rule 43, Fed.R.Civ.P., the statute or rule which favors the reception of evidence governs.

We have not found any Tennessee decision construing T.C.A. § 53-413 with respect to the precise question here involved, and the parties have not cited any to us. While there appears to be some conflict in the authorities from other states, we are of the opinion that the better reasoned decisions support the admissibility of the Certificate. Marker v. Prudential Ins. Co. of America, 273 F.2d 258 (5th Cir. 1959); Hunter v. Derby Foods, Inc., 110 F.2d 970 (2d Cir. 1940) (applying both federal and state law); Blados v. Blados, 151 Conn. 391, 198 A.2d 213 (1964) (holding court erred in deleting from certificate the language, "apparently fell from the rear stairs striking his head"); Walcott v. Sumner, 308 Mass. 413, 32 N.E.2d 685 (1941) (holding court erred in striking from certificate the words, "fell down stairs"); Harrington v. Interstate Business Men's Acc. Ass'n, 232 Mich. 101, 205 N.W. 116 (1925).

The Certificate of Death was also admissible under federal law. 28 U.S.C. § 1732; Thomas v. Conemaugh & Black Lick R. Co., 234 F.2d 429 (3d Cir. 1956); Hunter v. Derby Foods, Inc., supra; Smith v. John Hancock Mut. Life Ins. Co., 254 F.Supp. 622 (W.D.Pa.1966) (holding admissible certificate which contained words, "accident" and "lost control of car and struck culvert").

The certificate was admissible as prima faci evidence as to how the accident occurred, and could be considered along with the admissions in the original complaint if it is offered in evidence in the retrial of the case. That the boys had been playing on the mounds of wet ground at the top of the trenches appears from the Giakis boy's testimony on cross-examination by counsel for Parrish. He testified:

"Q. Well, do you remember that there was water down in the bottom of the ditch? A. Yes, sir.

Q. Now when you-all first got over there, you saw these — After you got over there you saw these mounds of dirt, is that right? A. Yes, sir.

Q. And what did you-all decide to do on the mounds of dirt? A. Play on them.

Q. And did you play any particular game? A. We played `King of the Hill\'.

Q. King of the Hill? A. Yes, sir.

Q. You and Pat? A. Yes, sir.

Q. Is that where one of you would get on top of the hill and the other tries to get him off? A. Yes, sir.

Q. And the one that stays up on top of the mound and up on top of the hill, he is the `King of the Hill\' until the other one gets him off? A. Yes, sir.

Q. Now these mounds of dirt were right there in the same area that the ditches were, weren\'t they? A. Yes, sir." (App. 50)

OTHER ERRORS

It is necessary that we rule on other claims of error to furnish guidance on the retrial of the case. The next claim relates to the issue of contributory negligence of the parents of the deceased boy.

The District Court submitted to the jury the issue of contributory negligence of Pat, instructing the jury as to the presumption under Tennessee law that children between the ages of seven and fourteen years are presumed to be incapable of contributory negligence until evidence to the contrary overcomes that presumption. Pat was nine years and ten months old. Counsel for his parents stated his capabilities as follows:

"He was a child of outstanding promise. His intellectual motivation was remarkably high causing him to rank in the top 20% of the population of children of his age. In reading and Arithmetical Concepts he was in the top 3%-5% of the population. Although he was only at the beginning of the third grade he was operating comparably to normal children at the fifth grade level and this superior performance was caused by high motivation." (Appellee\'s Brief, p. 43).

The applicable provisions of the Tennessee wrongful death statute, T.C.A. § 20-607, are to the effect that the right of action of a person, whose death is caused by wrongful act, shall not abate but shall pass to his parents. They are the real parties in interest and are the plaintiffs in this case. Whitley v. Georgia Western & Watkins Motor Lines, Inc., 299 F.Supp. 1238 (E.D.Tenn.1969); Herrell v. Haney, 207 Tenn. 532, 341 S.W.2d 574 (1960); Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246 (1941); Sanders Adm'x v. Louisville & N. R. R., 111 F. 708 (6th Cir. 1901).

It was the contention of Cordova that the parents of Pat were contributorily negligent in not properly supervising their child and in that his mother had given him permission to play in the field where the construction...