Young v. United States

• Decision Date: 07 February 1964
• Docket Number: No. 20303.,20303.
• Citation: 327 F.2d 933
• Parties: Joe YOUNG, d/b/a J. Young Construction Company, and United States Fidelity and Guaranty Company, Inc., Appellants, v. UNITED STATES of America, for the Use of J. E. BROWN and Boyce Brown, Partners, d/b/a J. E. Brown Construction Company, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

327 F.2d 933 (1964)

Joe YOUNG, d/b/a J. Young Construction Company, and United States Fidelity and Guaranty Company, Inc., Appellants, v. UNITED STATES of America, for the Use of J. E. BROWN and Boyce Brown, Partners, d/b/a J. E. Brown Construction Company, Appellees.

No. 20303.

United States Court of Appeals Fifth Circuit.

February 7, 1964.

Robert E. Varner, Jones, Murray & Stewart, Montgomery, Ala., for appellants.

Robert C. Dillon, J. L. Klinefelter, Burnham, Klinefelter & Dillon, Anniston, Ala., for appellees.

Before RIVES, WISDOM and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

This is an appeal by the prime contractor and his surety from a judgment upon a jury verdict in favor of the United States for the use of J. E. Brown and Boyce Brown d/b/a J. E. Brown Construction Company, the subcontractor. Appellee filed two separate suits to recover on two separate but similar subcontracts wherein appellee was to do the excavating, the laying of storm drainage pipe and other related work on two Government projects at Eufaula, Alabama. The two suits were consolidated for trial, and by agreement of the parties, the issues in both cases were submitted to the same jury and tried as one case.

Although the subcontracts were simple enough, the evidence adduced below was complex, voluminous and conflicting. Generally, appellants' main complaint on this appeal is that appellee was allowed to prove oral modification of the written contracts. The jury accepted the appellees' version of the evidence. The verdict of the jury is sufficiently supported by the record and is unimpeachable under the substantial evidence rule, unless the trial court fatally erred in allowing appellees to introduce evidence of oral modifications of the subcontracts. Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Continental Casualty Co. v. Holmes, 5 Cir. 1959, 266 F.2d 269; Spach v. Monarch Ins. Co. of Ohio, 5 Cir. 1962, 309 F.2d 949; Rives, The Scope of Review of Facts by United States Courts of Appeals, 11 Ala.L.Rev. 70 (1958). We turn now to a consideration of that question.

We look first to the Federal Rules of Civil Procedure. Rule 43(a) deals with the question of the admissibility of evidence in Federal civil trials and provides in pertinent part as follows:

"All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs" * * *. (Emphasis added)

This circuit and the Second Circuit are committed to a liberal interpretation of the foregoing rule. Monarch Ins. Co. of Ohio v. Spach, 5 Cir. 1960, 281 F.2d 401; Dallas County v. Commercial Union Assurance Co., 5 Cir. 1961, 286 F.2d 388; Hambrice v. F. W. Woolworth Co., 5 Cir. 1961, 290 F.2d 557; Hope v. Hearst Consolidated Publications, 2 Cir. 1961, 294 F.2d 681; 2B Barron & Holtzoff, Fed. Practice & Procedure (Wright rev. 1961) § 962.

In Hambrice the court had under consideration the admissibility of testimony of a store employee as to his daily habit with respect to sweeping the floor. In an opinion written by Judge Hutcheson, the court concluded as follows:

"Under these circumstances, it seems to us that, under Rule 43 Federal Rules of Civil Procedure, 28 U.S.C.A., which admonishes that the rule favoring admissibility should be adopted, we should follow the more liberal rule of the text writers and of the Institute\'s Code of Evidence, in holding true habit evidence admissible. While Rule 43 has been criticized as not entirely clear, it is settled that, in an action brought in the Federal District Court, in determining the admissibility of evidence, the court is not bound by a state court rule if that is less liberal than another rule which the court might be free to adopt. In determining admissibility of evidence where there is a conflict of state and federal rule, plaintiff is entitled under Rule 43 to the benefit of the more favorable rule. Roth v. Swanson, 8 Cir., 145 F.2d 262. In the federal court, the rule, whether federal or state, which favors reception of evidence governs. New York Life Ins. Co. v. Schlatter, 5 Cir., 203 F.2d 184. The admissibility of evidence in a federal court is a rule of procedure governed by federal law and not a rule of practice to be governed by state law. Gillespie v. Equitable Life, D.C., 152 F.Supp. 109. The Federal Rules of Civil Procedure indicate a general policy to disregard technicalities and form and to determine rights of litigants on the merits and to that end the rules are liberally construed. Fakouri v. Cadais, 5 Cir., 147 F.2d 667, at page 668. Cf. Monarch Ins. Co. of Ohio v. Spach, 5 Cir., 281 F.2d 401; Dallas County v. Commercial Union, 5 Cir., 286 F.2d 388; holding to the same effect. Certainly in the state of the authorities and under the evidence in this case, the ruling, admitting the porter\'s habit evidence, should not be regarded as reversible error."

Whether considered as a rule of substantive law or as a rule of evidence, the so-called "parol evidence" rule is far from pellucid. The rule does not allow the maximum passage of light without diffusion or distortion. A strict, formal and technical interpretation of the rule has long since been abandoned. There are numerous exceptions to it. One of the first exceptions arose as early as Lord Coke's time. Since that time, the courts have repeatedly found it necessary to resort to new exceptions to the rule. Wigmore indicates that there are now at least 9 or 10 such exceptions. 9 Wigmore on Evidence (3d Ed.) § 2470, et seq., p. 224.

We fail to find any conflict between the rulings of the trial court and the law of the State of Alabama. We agree with the trial court's repeated admonitions to the jury:

`* * * where the parties, any parties, have entered into a written contract, the law says that it is entirely competent for the parties to a written contract to, if they agree to it, and while it is still in the stage of being performed, modify or waive certain rights under it or engraft new terms into it, but this must be done by agreement between the parties, a mutual understanding, and it must be done, if it is

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