Ulm v. Moore-McCormack Lines, 122.

• Decision Date: 27 January 1941
• Docket Number: No. 122.,122.
• Citation: 115 F.2d 492
• Parties: ULM v. MOORE-McCORMACK LINES, Inc.
• Court: U.S. Court of Appeals — Second Circuit

115 F.2d 492 (1940)

ULM v. MOORE-McCORMACK LINES, Inc.

No. 122.

Circuit Court of Appeals, Second Circuit.

November 12, 1940.

Rehearing Denied January 27, 1941.

Joseph S. Robinson, of New York City (N. Sinclair Robinson and Arthur S. Gales, both of New York City, on the brief), for plaintiff-appellee.

John C. Crawley, of New York City (Barry, Wainwright, Thacher & Symmers and Howard B. Nichols, all of New York City, on the brief), for defendant-appellant.

Before SWAN, CHASE, and CLARK, Circuit Judges.

Rehearing Denied January 27, 1941. See 117 F.2d 222.

CLARK, Circuit Judge.

The plaintiff, a seaman employed on a vessel of the defendant, brought suit against the defendant claiming damages for personal injuries due to negligence and also seaman's maintenance and cure. His claims arose from his fall down a companionway ladder from the main deck to the sleeping quarters of the crew early on Christmas morning, 1939. A jury trial resulted in a plaintiff's verdict of $25,000 on the claim of negligence, and of $10,000, reduced to $3,000 on the court's order and with plaintiff's consent, on the claim for maintenance and cure; and judgment for plaintiff was entered accordingly. On this appeal defendant argues vigorously that there was no evidence of negligence to be submitted to the jury; but the evidence of lack of light in the companionway and that the ladder was not secure at its foot seems to us to justify such submission. The important problem herein arises with respect to rulings on evidence.

Of the several rulings of the court at the trial assigned for error, those involving the exclusion of certain hospital records seem to us decisive of the appeal. These rulings concerned first, the clinical record of the United States Marine Hospital in Chelsea, Massachusetts, covering plaintiff's hospitalization there for a short time in January, 1936; second, two different sets of clinical records covering plaintiff's treatment for the injury in suit here, in the United States Marine Hospital, Stapleton, Staten Island, New York, from December 25, 1939, until February 13, 1940, and again on February 28, 1940; and third, the clinical record of the United States Marine Hospital, Galveston, Texas, covering plaintiff's hospitalization and appendectomy there, from November 20 to December 8, 1939. The latter illness, it will be noticed, was just before the accident in suit; in fact, plaintiff had only shipped on defendant's boat on December 18, 1939, a week before his injury. Of the Stapleton records, the second one offered was a full clinical record, covering many pages, of his first stay at that hospital; while the other consisted of two pages of "Admission Note" of the ward surgeon covering his second admission to this hospital.

All of these records were excluded by the district court as being not properly identified and lacking adequate foundation of testimony by some keeper of the records. The issue was before the court several times through the persistence of counsel. The first offer, of the Chelsea record, was met with an objection that it was irrelevant and also that it was not the best evidence. The court promptly sustained the objection, saying, "There is a better way of proving that. Subpoena the doctor." Defendant then cited 28 U.S.C.A. § 661, providing for the admission of public records of the United States properly authenticated by certification and seal — formalities lacking here. The court again said that there must be a foundation laid for the admission of such records, that preliminary things must be shown, and that the fact that the witness then on the stand had identified himself as the patient was insufficient. The next offer was that of the second Stapleton record, where the same objection was sustained. Later the offer of the Chelsea record was renewed (counsel having previously partly acquiesced in the court's ruling by saying that he supposed the court must be right), and again the court excluded it, "no proper foundation having been laid." This was followed by offer of the first Stapleton record, but the court sustained an objection based "on the ground that no proper foundation has been laid for it." Last offered was the Galveston record, which produced considerable discussion, wherein plaintiff's counsel conceded that the record was produced pursuant to subpoena; and the court excluded it, saying, "No proper foundation has been laid under the same theory that I ruled out similar records." Finally, just before summation to the jury, counsel submitted a long affidavit supporting his claim for admission of the Galveston record, but was unsuccessful in inducing the court to change the ruling.

We think the various records were sufficiently identified to become admissible, so far as relevant, under the appropriate governing law. The concession of plaintiff's counsel with reference particularly to the Galveston record, that his objection still held, though the record was produced pursuant to subpoena, and "I do not question the production of the paper. I question its contents," together with the fact that defendant's counsel linked together his offers of the various records as did the court specifically in its ruling excluding them, shows that there is no question of the identity of the various papers as coming from the records of the respective hospitals. Moreover, the Stapleton records were yet more explicitly identified. The "Admission Note" on plaintiff's second admission to the hospital was identified by the testimony of a hospital interne as having been made by a named staff physician; while the record of the first admission was produced by plaintiff during the testimony of a hospital doctor, who identified the "Admission Note" in that record as having been made by Dr. Beardsley of the staff and who testified that Dr. Beardsley was ill at the time of the trial and had been so for some time previously.

It is true that defendant's offers were somewhat clumsily made. When counsel cited authority, he referred to the statute 28 U.S.C.A. § 661, above, dealing with formal government records, and then again to New York Civil Practice Act, § 374a, but not, so far as appears, to the recent statute we regard as controlling, 28 U.S.C.A. § 695. But since under Federal Rule 43(a), 28 U.S.C.A. following section 723c, defendant is entitled to rely upon that statute or rule which favors the reception of the evidence, we are to treat its claims as made on that basis. Counsel's very persistence made clear the importance he attached to the rulings, and there was no permanent waiver of objection as plaintiff now asserts. The taking of formal exception is no longer necessary. Federal Rule 46.

The statute which we have cited as controlling, 28 U.S.C.A. § 695, was passed in 1936, and provides for the admissibility, as evidence in any court of the United States, of a memorandum or record of any act, transaction, occurrence, or event made in the regular course of business. Further, any circumstances other than that the record was made in the regular course of business and that the regular course of business was to make it at the time or within a reasonable time thereafter are not to affect admissibility, but may be shown to affect the weight of the evidence; among these circumstances is lack of personal knowledge by the entrant or maker. The term "business" is defined to include "business, profession, occupation, and calling of every kind."

Plaintiff asserts that, since this act is similar to the New York statute of 1928, Civil Practice Act, § 374a, it must have been copied therefrom and should receive the similar restrictive interpretation which that statute has received, citing particularly Johnson v. Lutz, 253 N.Y. 124, 170 N. E. 517, and Geroeami v. Fancy F. & P. Corp., 249 App.Div. 221, 291 N.Y.S. 837. But this act did not come from the New York statute. Both in fact derive...