White v. Zutell

• Decision Date: 16 February 1959
• Docket Number: No. 107,Docket 25204.,107
• Citation: White v. Zutell, 263 F.2d 613 (2nd Cir. 1959)
• Parties: George W. WHITE, individually and as Administrator of the Estate of Dorothy L. White, Plaintiff-Appellee, v. Raymond ZUTELL, Jr., as Administrator d.b.n. of the Estate of Raymond Zutell, and Raymond Zutell, Jr., and Joan Zutell, as Executor and Executrix of the Estate of Irene Zutell, Defendants-Appellants.
• Writing for the Court: CLARK, , MOORE, Circuit , and GIBSON
• Court: U.S. Court of Appeals — Second Circuit

263 F.2d 613 (1959)

George W. WHITE, individually and as Administrator of the Estate of Dorothy L. White, Plaintiff-Appellee, v. Raymond ZUTELL, Jr., as Administrator d.b.n. of the Estate of Raymond Zutell, and Raymond Zutell, Jr., and Joan Zutell, as Executor and Executrix of the Estate of Irene Zutell, Defendants-Appellants.

No. 107, Docket 25204.

United States Court of Appeals Second Circuit.

Submitted January 9, 1959.

Decided February 16, 1959.

Julius S. Christensen, New York City (Bounds & Wourms, New York City, on the brief), for defendants-appellants.

Clarence Fried, of Hawkins, Delafield & Wood, New York City (William D. Greene, New York City, on the brief), for plaintiff-appellee.

Before CLARK, Chief Judge, MOORE, Circuit Judge, and GIBSON, District Judge.

CLARK, Chief Judge.

Plaintiff and his wife, residents of the State of Washington, were involved, with the parents of the defendants, residents of New York, in a serious and fatal automobile accident in New Mexico on December 6, 1950. Plaintiff, the driver of one car, was seriously injured, while his wife, a passenger in his car, was killed; Raymond Zutell, the driver of the other car, was killed, while his wife and passenger, Irene (who died some years later), was injured. At the close of the extended trial below on plaintiff's claims and defendants' counterclaims, the court submitted more than twenty specific questions to the jury, which in little over an hour decided all in favor of the plaintiff.¹ Plaintiff recovered a verdict and judgment of $25,000 for his injuries, one of $3,000 for damage to his automobile, and one for $35,000 as administrator of his wife's estate; and the counterclaims for the defendants were dismissed. On this appeal defendants question only the admissibility of certain evidence admitted below.

Of the challenged testimony only that of Sergeant Arnold Smith, a New Mexico State police officer who investigated the accident an hour and a quarter later, relates to the question of liability. We see no error in Smith's being permitted to give his estimate of the speed of the Zutell car at the moment of impact. Smith's qualifications to make this estimate were properly established at the trial. Moreover, the witness had personally examined the skid marks on the highway, the damage done the two cars, and other telltale evidence; and the plaintiff had testified as to the other facts relevant to the witness's conclusions. Defendants also contend that Smith should not have testified to what would have constituted a reasonable and safe speed under the road conditions at the time and place of the accident. As no objection was made to this testimony at the trial its admission is not now to be held erroneous. Moreover, substantial authority allows it in any event. See Fedler v. Hygelund, 106 Cal.App.2d 480, 235 P.2d 247; Ford v. Louisville & Nashville R. Co., 355 Mo. 362, 196 S.W.2d 163; Ware v. Boston & M. R. R., 92 N.H. 373, 31 A.2d 58; Northern Alabama R. Co. v. Shea, 142 Ala. 119, 37 So. 796; 7 Wigmore on Evidence §§ 1918-1920, 1951 (3d Ed.1940). The witness personally observed the road conditions, and his full-time occupation is highway safety; we can think of no evidence more relevant to the basic issues of this litigation.

The remaining issues concern only the extent of plaintiff's injuries and do not affect the verdicts for the death of the wife and for the property damage.² The contention that a report of a doctor who examined the plaintiff at the request of defendants' insurer was improperly admitted in evidence is not sound. At the trial defendants made prolonged objection to the admission of the statement as hearsay, with no opportunity to cross-examine; but the trial judge admitted it (with some deletions) under the Federal Business Entry Statute, 28 U.S.C. § 1732, on the authority of Korte v. New York, N. H. & H. R. Co., 2 Cir., 191 F.2d 86, certiorari denied New York, N. H. & H. R. Co. v. Korte, 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 652. On this appeal the defendants seemingly do not attack this ruling directly; rather they object to various details of the report. We are clear that the ruling was correct. The making of this report was clearly a part of this specialist's "business"; indeed that is what he was...