Wingate v. Emery Air Freight Corp.

• Decision Date: 27 March 1981
• Citation: 11 Mass.App.Ct. 982,423 N.E.2d 793
• Parties: Donald A. WINGATE v. EMERY AIR FREIGHT CORPORATION.
• Court: Appeals Court of Massachusetts

Page 793

423 N.E.2d 793

11 Mass.App.Ct. 982

Donald A. WINGATE v. EMERY AIR FREIGHT CORPORATION.

Appeals Court of Massachusetts, Bristol.

Argued Feb. 18, 1981.

Submitted March 27, 1981.

Ephraim F. Horvitz, Fall River, for plaintiff.

Thomas P. Crotty, New Bedford, for defendant.

Before ARMSTRONG, CUTTER and DREBEN, JJ.

RESCRIPT.

Wingate, an employee of J. A. Jones Construction Company (Jones Company), alleged that, on the premises of the defendant (Emery) at Logan Airport, he was injured seriously as a result of the negligent conduct of an employee of Emery, when a box upon a push cart operated by Emery's employee fell upon Wingate. The jury returned a verdict for Emery on which judgment was entered. Wingate appealed.

Wingate objected to the introduction in evidence of Aetna Insurance Company's copy of Jones Company's first report of injury to the Industrial Accident Board and to Aetna under the Workmen's Compensation Act. See G.L. c. 152, § 19, as amended through St.1973, c. 438; Locke, Workmen's Compensation §§ 412-413 (1968). The evidence was offered solely for the limited purpose of impeaching Wingate's credibility. He had testified that the accident occurred at Logan Airport. The first report, in answer to the question "Location of plant or place where accident occurred," stated (1) that the accident occurred at "Brayton Point Power ... Station No. 4" in Somerset on Tuesday, December 31, 1974, and (2) that, "(w)hile loading (a) heavy box onto (a) truck," Wingate "felt pain r(ight) groin and leg." Before the evidence was admitted, there was a voir dire examination of one Lord, an Aetna claim representative, through whom the report was offered as a record made and kept in the regular course of Aetna's business. See G.L. c. 233, § 78, as appearing in St.1954, c. 442, § 1; Leach & Liacos, Massachusetts Evidence 234 et seq. (4th ed. 1967); Hughes, Massachusetts Evidence §§ 592 et seq. (1961); 5 Wigmore, Evidence §§ 1522, 1530, & 1561a (Chadbourn rev. 1974).

The trial judge found that the first report of injury was a record kept in good faith by Aetna before the actions were commenced on November 15, 1977; that it was Aetna's practice (on the date, January 13, 1975, when the report was stamped) to keep such records; that the report was not prepared by Aetna or any of its employees; and that no Aetna employee assisted in preparing it. The judge relied on Sawyer & Co. v. Southern Pacific Co., 354 Mass. 481, 483, 238 N.E.2d 357 (1968), which was a case in which United States Department of Agriculture inspection certificates (of cantaloupes as free of defect) were admitted as business records under G.L. c. 233, § 78, a statute which we recognize should be interpreted liberally to permit the receipt of relevant evidence.

The first report was signed in behalf of Jones Company by Louis B. J. Belmont, Safety Supervisor (so far as an illegible signature can be deciphered). No such officer has been shown to have been called as a witness. Wingate denied having talked with anyone named Belmont or knowing such a person. Counsel for Emery referred to no witness from (or employed by) Jones Company who testified to the source of the information recorded in the first report or to any statement by Wingate made to any person either employed by Jones Company or involved in preparing that report. One Freitas, mentioned in the report as Wingate's foreman (although Wingate testified Freitas was not a foreman), is not shown to have been called as a witness. There thus is no direct proof that Wingate ever made a statement to anyone that the accident took place at Brayton Point Power Station as reported in the first report. If there had been such proof, it was incumbent on Emery to request Wingate's counsel to include the appropriate transcript pages in the record appendix. See Mass.R.A.P. 18(b) as amended, 378 Mass. --- (1979).

To impeach Wingate's testimony at trial by proof of a prior inconsistent statement, in fairness there should be proof that he made, or took responsibility for, such a prior statement. See Phillips v. Marblehead, 148 Mass. 326, 329, 19 N.E. 547 (1889); Healey v. Wellesley & Boston St. Ry., 176 Mass. 440, 441, 57 N.E. 703 (1900); Robinson v. Old Colony St. Ry., 189 Mass. 594, 596, 76 N.E. 190 (1905); 3A Wigmore, Evidence §§ 1017-1018, & 1040, especially at 1051 n.8 (Chadbourn rev. 1970). See also Priest v. Groton, 103 Mass. 530, 542 (1870); McCormick, Evidence §§ 34-37 (2d ed. 1972); Leach & Liacos, Massachusetts Evidence at 113-119; Hughes, Massachusetts Evidence §§ 232-235. The mere fact that Aetna has in its business records a first report of injury to it as Jones Company's workmen's compensation carrier does not in and of itself report, or purport to report, any statement by or attributed to Wingate, or for which he assumed responsibility. The first report does not disclose the source of the information therein set out, although the existence of that first report has some tendency to show that the...