Sylvania Electric Products, Inc. v. Flanagan

• Decision Date: 22 November 1965
• Docket Number: No. 6562.,6562.
• Citation: 352 F.2d 1005
• Parties: SYLVANIA ELECTRIC PRODUCTS, INC., Defendant, Appellant, v. Paul L. FLANAGAN, d/b/a Paul L. Flanagan and Sons, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

352 F.2d 1005 (1965)

SYLVANIA ELECTRIC PRODUCTS, INC., Defendant, Appellant, v. Paul L. FLANAGAN, d/b/a Paul L. Flanagan and Sons, Plaintiff, Appellee.

No. 6562.

United States Court of Appeals First Circuit.

November 22, 1965.

George T. Finnegan, Boston, Mass., with whom Ropes & Gray, Boston, Mass., was on brief, for appellant.

Harold Brown, Boston, Mass., for appellee.

Before ALDRICH, Chief Judge, McENTEE, Circuit Judge, and CAFFREY, District Judge.

McENTEE, Circuit Judge.

Plaintiff, Paul L. Flanagan, d/b/a Paul L. Flanagan and Sons, is a trucker and hauler of sand, gravel, stone and other similar materials. In the spring of 1963, defendant, Sylvania Electric Products, Inc., engaged a general contractor to construct a parking lot for it at its plant in Needham, Massachusetts. There was a hill or ledge on this site which had to be removed at the beginning of the job. Although the general contractor was obliged to level off the hill, he was not required under his contract to truck the ledge material away. Plaintiff alleges that on May 27, 1963, which is the date the parking lot job was commenced, the defendant made an oral agreement with him whereby he agreed to supply the trucks and haul this ledge material away and the defendant agreed to pay him for this work at the rate of $13 per hour per truck. Plaintiff proceeded immediately with the hauling operation which extended over two periods: May 27 to June 10, 1963 and June 17 to July 1, 1963. In the performance of this work he used his own trucks and trucks rented from others, as was his practice on jobs of this size. Plaintiff claimed that the entire job took a total of 1932½ truck hours work for which he billed defendant at the rate of $13 an hour. This amount, plus an item of $145 for bulldozer hire, which was not disputed, came to $25,267.50. Defendant refused to pay this bill. Whereupon plaintiff brought suit in the Massachusetts Superior Court for breach of contract. The case was removed to the United States District Court for the District of Massachusetts on the ground of diversity. The jury found for the plaintiff in the full amount of his claim. This is an appeal by the defendant from the judgment entered by the district court based on the jury verdict. Defendant's principal ground of appeal is that the district court erred in admitting certain evidence in violation of the best evidence rule; that this evidence should have been excluded and a verdict should have been directed for the defendant.

Plaintiff offered the following evidence in support of his claim, all of which he alleged is based on daily truck hour slips on tally sheets made at the site of the job which recorded the number of trucks on the job and the number of hours worked by each truck: (1) Exhibit A in the declaration filed in this case, which he says is a summary of the data contained in the invoices and the tally sheets. (2) A number of photostatic copies of bills and invoices sent to plaintiff by other truckers for the rental of their trucks on this job. (3) Copies of two bills sent by plaintiff to defendant, one in the amount of $12,521 for work done during the first period and the other reflecting the total amount of $25,267.50 due for both periods. The contents of these two bills is identical with the claim set forth in Schedule A of the plaintiff's declaration (supra).

Plaintiff testified that the data contained in the above exhibits is the same as that contained in the tally sheets. In the course of the trial when plaintiff was asked whether the information contained in these exhibits was the same as that contained in the tally sheets, defendant objected on the ground that this was secondary evidence and thus was barred by the best evidence rule. At this point, the trial court inquired as to whether the plaintiff had those tally sheets, to which he replied that he knew he had some at home but was not sure whether he had them all. The court then suggested that he bring in those that he had. Later in the course of the trial this line of inquiry was resumed by plaintiff's counsel and again defendant objected. The court allowed plaintiff's testimony that the information contained in the invoices "checked out" with that contained in the tally sheets. The defendant adequately objected. None of the tally sheets were ever produced at the trial.

It is well settled that the best evidence that is obtainable in the circumstances of the case must be adduced to prove any disputed fact. United States v. Alexander, 326 F.2d 736 (4th Cir. 1964). Here, the plaintiff's claim is based on performance of the work. The best evidence of his performance is the truck hour records (tally sheets). Those records were made for the very purpose of recording this performance. Instead of producing these records plaintiff offered the secondary evidence of their content enumerated above. In proving the terms of a writing, which terms are material to the issues in the case, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. McCormick, Evidence § 196 (1954). Upon a proper showing of the unavailability of the original writing, secondary evidence of its contents may be received....