Yates v. Bair Transport, Inc.
Decision Date | 02 December 1965 |
Parties | Andrew YATES, Plaintiff, v. BAIR TRANSPORT, INC., Knickerbocker Despatch, Inc. and Samuel Benrubi, individually and d/b/a Jay Bee Co., Defendants. |
Court | U.S. District Court — Southern District of New York |
Emile Z. Berman and A. Harold Frost, New York City, for plaintiff, Marvin V. Ausubel, New York City, of counsel.
Alexander, Ash & Schwartz, New York City, for defendant BAIR Transport, Inc., Sidney Schwartz, New York City, of counsel.
Perrell, Nielsen & Stephens, New York City, for defendant Knickerbocker Despatch, Inc., John W. Fuhrman, New York City, of counsel.
The respective parties herein request of the Court a ruling prior to trial on the admissibility of two proffered items of evidence: firstly, a police blotter report concerning the instant accident, and, secondly, medical reports of various doctors who examined plaintiff in connection with a prior Workmen's Compensation claim arising out of the accident.
The parties have stipulated that if the reporting officer were called he would testify that the police blotter was prepared by him in the regular course of his duties and filed with the Police Department in accordance with his and their regular practice and procedure. If the officer were called, it is further agreed that he would also testify that the photostatic copy was authentic. Plaintiff accordingly argues that a sufficient foundation has been laid for the admissibility of the report without the necessity of calling the police officer.
The Federal Business Records Act, 28 U.S.C. § 1732 (Supp.1964), provides:
It further provides that "all other circumstances of the making of such writing or record i. e., a record kept in the ordinary course of business including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility." An identical provision with respect to the contents of the record and the personal knowledge of the maker or entrant is contained in Section 4518 of the New York Civil Practice Law & Rules.
A copy of the police blotter report has been supplied to the Court. Therein the ownership of the vehicle in question is set forth. In addition, the details of the accident are enumerated. The officer, as stated in the report, was not an eyewitness to the accident; in addition, under the heading of names and addresses of witnesses there appears the entry "none". Accordingly, it may be assumed that the information set forth in the report was supplied either by the driver of the truck, a helper, or the plaintiff; however, this is an assumption not based on any affirmative proof.
In spite of the apparent clarity of the language in both statutes to the effect that the fact the entry is based on lack of personal knowledge of the entrant goes to weight rather than admissibility of a record kept in the ordinary course of business, the Courts and commentators have seemingly taken a different view of the metes of this exception to the hearsay rule.
Professor McCormick has summed up the state of the law as follows: "Thus the statements of by-standers recorded in a policeman's report of accident * * * would be denied admission as business records to show the facts reported * * *." McCormick, Evidence § 286 at 602-03 (1954). See 5 Bender's New York Evidence — CPLR § 375 (1965).
As will appear hereinafter, the Courts have also taken similar views.
It is clear that Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930) would preclude the admissibility of statements by bystanders given to a police officer at the scene of the accident.
Fagan v. City of Newark, 78 N.J.Super. 294, 188 A.2d 427, 440 (App.Div.1963).1A
A case seemingly in point and holding such a report with statements of bystanders admissible is McKee v. Jamestown Bakery Co., 198 F.2d 551, 556 (3d Cir. 1952): Contra, Gencarella v. Fyfe, 171 F.2d 419 (1st Cir. 1948). However, a later Third Circuit case, Gordon v. Robinson, 210 F.2d 192 (3d Cir. 1954), limited McKee to its precise facts (i. e., a situation where "all the pertinent matters appearing in the report * * * are testified to competently") (id. at 197 n. 9), and in fact reversed the district court which, based on McKee, had held a police report admissible. Gordon v. Robinson, 109 F. Supp. 106, 108 (W.D.Pa.1952).
The following reconciliation between the statutory language and the clear weight of authority appears correct:
McCormick, supra, § 286 at 602.
Or, as stated in Standard Oil Co. of Calif. v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958):
Moreover, if the policeman testified in court, his testimony that a bystander told him that the accident occurred thusly would be hearsay and if not within one of the exceptions, inadmissible. Why a different result should be reached where the policeman writes what the bystander said instead of testifying to it, is not readily apparent.
Nor are any of the cases cited by plaintiff to the contrary.
In analyzing these cases, however, it must be borne in mind that there are numerous...
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...is particularly robust where, as here, the record is adverse to the party who prepared it. Compare Yates v. Bair Transp., Inc., 249 F.Supp. 681, 690 (S.D.N.Y.1965) (trustworthiness of medical records enhanced by fact that they were adverse to party on whose behalf they were prepared), with ......
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§ 45.04 Stipulations of Expected Testimony
...parties may stipulate to what the individual would have said, thus alleviating the need to call him."); Yates v. Bair, Transport, Inc., 249 F. Supp. 681, 682 (D.C.N.Y. 1965) ("The parties have stipulated that if the reporting officer were called he would testify that the police blotter was ......
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§ 45.04 STIPULATIONS OF EXPECTED TESTIMONY
...parties may stipulate to what the individual would have said, thus alleviating the need to call him."); Yates v. Bair, Transport, Inc., 249 F. Supp. 681, 682 (D.C.N.Y. 1965) ("The parties have stipulated that if the reporting officer were called he would testify that the police blotter was ......