Wingate v. Emery Air Freight Corp.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY; LIACOS
• Citation: 385 Mass. 402,432 N.E.2d 474
• Decision Date: 02 March 1982
• Parties: Donald A. WINGATE v. EMERY AIR FREIGHT CORP.

Page 474

432 N.E.2d 474 385 Mass. 402 Donald A. WINGATE
v.
EMERY AIR FREIGHT CORP. Supreme Judicial Court of Massachusetts, Bristol. Argued Nov. 2, 1981.
Decided March 2, 1982.

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Ephraim F. Horvitz, Fall River, for plaintiff.

Charles R. Desmarais, New Bedford, for defendant.

Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

This appeal concerns the circumstances under which an employer's report of injury, containing an account of an accident that resulted in injury to an employee, may be introduced in evidence, despite its hearsay nature, in a tort case brought by the plaintiff employee against a third party. We agree with the Appeals Court's conclusion that the admission of the report in this case was prejudicial error, and reverse the judgment in favor of the defendant Emery [385 Mass. 403] Air Freight Corp. (Emery) entered in the Superior Court. --- Mass.App. ---, Mass.App.Ct.Adv.Sh. (1981) 680, 423 N.E.2d 793. In so doing, we define certain limits in the application of G.L. c. 233, § 78, the so-called business records statute. ¹

The plaintiff was employed by the J. A. Jones Construction Company (Jones Company) in Somerset, Massachusetts. He testified at trial that he had been injured at the Logan International Airport premises of Emery while accepting a delivery for Jones Company. According to the plaintiff, his injury occurred when an Emery employee negligently caused a crate to strike him and knock him down. Emery denied any knowledge of the accident, and gave evidence tending to show that the accident had not happened at Emery's loading docks as alleged by the plaintiff.

Among the items of evidence offered by Emery was an "Employer's First Report of Injury," prepared by Jones Company pursuant to G.L. c. 152, § 19, and produced from the files of the Jones Company's workmen's compensation insurer. ² The report stated that the accident had occurred at the Jones Company's place of business in Somerset. It described the cause of injury as "heavy object," and contained the notation "(w)hile loading heavy box onto truck felt pain r(ight) groin and leg." The report was

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signed by one Louis B. J. Belmont, as preparer.

[385 Mass. 404] On voir dire, Emery called as a witness an employee of the Jones Company's insurer. This witness testified that he had no knowledge of the preparation of the report, but that the insurer regularly received such reports from employers. The preparer, Louis Belmont, did not appear, and no further evidence was received. The judge found that the report was "a record kept in good faith in the regular course of business of (the insurance company)," and otherwise satisfied the statutory business records exception to the hearsay rule, G.L. c. 233, § 78, and that it "was not prepared by any person employed by (the insurance company)." ³ As requested by Emery, the judge admitted the report only for the purpose of impeachment of the plaintiff's testimony.

The plaintiff objected on the ground that he had not participated in the preparation of the report. He admitted that he had told someone at Jones Company about his accident, but testified that he had not spoken to, and in fact had never met, Louis Belmont. This testimony was not contradicted. In his final charge, the judge instructed the jury that if they determined that the plaintiff had made the statements contained in the report to the preparer, they should consider the report as an inconsistent statement casting substantial doubt on the plaintiff's credibility. If, however, they found that the plaintiff had not related the information to Belmont, they should not consider the report as evidence of inconsistency in the plaintiff's "stories."

The jury returned a verdict for Emery, and the plaintiff appealed. The Appeals Court reversed the judgment, reasoning that in the absence of proof that the information in the report reflected statements made by the plaintiff directly to the preparer, the admission of the report was prejudicial error. Wingate v. Emery Air Freight Corp., --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 680, 682, 423 N.E.2d 793. We granted Emery's request for further appellate review.

[385 Mass. 405] The report clearly constituted hearsay evidence, and just as clearly was admitted in evidence by the judge on two grounds: that it was an inconsistent prior statement of the plaintiff, and was a business record within the statutory meaning.

We dispose quickly of the premise that the report contained a prior inconsistency. ⁴ The evidence did not warrant an inference that the content of the report was attributable to the plaintiff. He denied that he had talked with Belmont, and he denied that he had made the statement contained in the report. His mere testimony that he had told his story to some person at the company was not sufficient to charge him with the version of the facts shown in the report. ⁵

We turn now to the issue whether the report was admissible under the business records statute. Generally, evidence based on a chain of statements is admissible

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only if each out-of-court assertion falls within an exception to the hearsay rule. Bouchie v. Murray, 376 Mass. 524, 527-531, 381 N.E.2d 1295 (1978). McCormick, Evidence § 246, at 585-586 (2d ed. 1972). See Fed.R.Evid. 805; Proposed Mass.R.Evid. 805. Since, in this case, there was no evidence to show that any statement by any person was within any other exception to the hearsay rule, our remaining inquiry relates to the business records statute.

[385 Mass. 406] General Laws c. 233, § 78, states that a record made in the regular course of business "shall not be inadmissible because ... it is hearsay." Such a record is presumed to be reliable and therefore admissible because entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of doing business. McCormick, supra § 306, at 719-721. See Bouchie v. Murray, supra at 528, 381 N.E.2d 1295. The statute makes clear that the record is admissible even when the preparer has relied on the statement of others, by providing that "personal knowledge by the entrant or maker" is a matter affecting the weight (rather than the admissibility) of the record. See Commonwealth v. Kiley, 373 Mass. 454, 462, 367 N.E.2d 837 (1977); Sawyer & Co. v. Southern Pac. Co., 354 Mass. 481, 484, 238 N.E.2d 357 (1968).

It does not follow, however, that the preparer may rely on statements that are not themselves a part of the regular course of business record-keeping. The preparer's hearsay sources must carry the same indicia of reliability, arising from regularity and business motives, that bring his own act of recording the information within the statutory exception. Thus, unless statements on which the preparer relies fall within some other exception to the hearsay rule, the proponent must show that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine. See Commonwealth v. DeBrosky, 363 Mass. 718, 724-725 & n.6, 297 N.E.2d 496 (1973);...