*1 Carey classify appellant I-S. On February 19,1969, entered Judge Blumenfeld’s accordance appellant opinion on March appeal. filed notice of in Marsano For set forth the reasons (decided Laird, et
v. today 16, 1969), decided Carey a clear
court, we hold that right
statutory classification to a I-S order of the district
therefore affirm the holding, affirm In so also court. Carey court’s conclusion that district 10(b) from relief barred Military Act Service Selective he has he has shown 1967 because statutory deferment
clear part involving no discretion board, the board’s
the local and that denying
action in deferment statutory command. express
travened
System
Oestereich
Selective
89 S.
Local Board No.
Ct.
Affirmed. GAUSSEN, Plaintiff-
Clarence D. Appellee,
UNITED FRUIT Defendant- Appellant.
No. Docket 33034. Court of Circuit. Second
Argued March May 28,
Decided
73 resolution of the facts was a func- Therefore, only question open tion. for consideration is: were items of evi- persuasive dence which reaching to a its determination kept by exclusionary rulings? from it United Fruit four items material to a factual determination were excluded: 1. The United States Public Health Hospital (USPHS) Rec- ord. Captain
2. reporting Nielsen’s letter injury. Swaby’s 4. Dr. Answer to the sixth interrogatory. written Hospital Record (USPHS) hospital The Staten Island 13, record of November 1963 to referred Hopkins, City, Walter L. New York patient “who fell on a ladder” and (Fuller, Hopkins, Taussig, Lawton & 21, under date of November 1963 who brief), City, York New on the for de- “slipped id.). on stairs” H fendant-appellant. sen had admitted that he had Sherwood, City, Donald S. “people” hospital at a true ac- (Kenneth Heller, City, New York on the count of how had hurt himself. brief), plaintiff-appellee. for The trial court excluded this MOORE, Before KAUFMAN report partially ground on the that Unit FEINBERG, Judges. Circuit presented ed Fruit no evidence as identity competency maker, MOORE, Judge: Circuit additionally Plaintiff-appellee, Clarence Gaussen cumulative, that “the defense (Gaussen), seaman, was awarded able out other evidence judgment verdict a defend- flicting versions Gaussen of how ant-appellant, Company United Fruit accident occurred.” it is clear (United Fruit), injuries allegedly Act, that under the Records 28 Business sustained aboard a vessel owned 1732, relating circumstances Contending United Fruit. the dis- the maker record are relevant (1) deny- trict court committed error evidence, ing its motion for a directed verdict admissibility. to its United States v. favor; (2) notwith- Re, (2d Cir.), 336 F.2d 313 cert. standing verdict; (3) for a new nied, 379 85 L. S.Ct. 13 trial because the verdict a miscar- (1964). Additionally, Ed.2d 177 Gaus riage justice; because of object sen waived the to the ad prejudicial errors the exclusion of mission certified records evidence, certain items of United Fruit grounds authenticity pre-trial in a appeals. stipulation. And the rule seems well es points The first three con- tablished circuit rejected sidered including al- pa records though the trial court “defend- injury found tient as to how his occurred are contrary overwhelmingly g., ant’s evidence as business records. E. convincing,” quite properly Refining Co., ruled that Lorensen v. Sinclair 271 74 (2d Cir.1959( (per Report cu Accident 529 F.2d Lines,
riam) ; Atlantic Terrasi v. South This dated “Nov. 1963” and Cir.1955), cert. denied 226 F.2d signed by the Chief L.Ed. 855 S.Ct. printed item “Area of claimed accident Moreover, by the exclusion inspected by” equipment opposite *3 and was foreclosed the defense this record typed Ap- which was “Area Unknown.” argument jury making to the from an pellant that the absence thereon Gaussen, acci time after the some any signature by of or statement Gaus- possession presumably in full dent and portion report printed in sen the of the opportunity an faculties and with of his might purpose for this was or de cause, as to the had for reflection indicative of Gaussen’s intoxication. slipping or fall a a ladder scribed as argument any Whether this will have have The well on stairs. weight present the with is not given weight to this speculation. produce The failure to the Captain Nielsen’s Letter Chief not a was sufficient pre- of for exclusion in view the ac- in the nature of an This letter was weight again trial order but is for report, on November cident made jury. admissibility the The of re- this Captain to United Fruit’s from the port governed by should be the same days Superintendent after two Marine principles as item 2. report portions the the The of accident. wished the defense which Swaby’s Testimony 4. Exclusion Dr. of investigating, “Upon out are (Sixth Interrogatory) Gaussen, very in- much was found Swaby ap- Kingston, toxicated, Dr. was the Ja in had his bunk and * * * injured. maica who doctor treated Gaussen. parently viewpoint, From a the is defense answer where sen does know said important injury.” E it discloses that two the when he received id.) Gaussen were made (Dr. Swaby) first, him at “bedside” — regarded re this trial court “On stat admission Gaussen hearsay” port “obvious and ed that he did not how he fall know had testimony only event similar to during stay second, en” and his “Later the admis Mate. We believe Chief he stated that the morn upon sibility report depends of a such ing of had started down the accident he regular in the it was made whether decks, a ladder from between twisted his appellant’s and course of striking ankle and fell his shoul upon information transmitted based der.” person a with such dealing judge appel- The trial with knowledge, circum and whether post-trial lant’s believed that motions trustwor otherwise indicate the stances testimony substantially it, thiness, report, de or lack of (Exh. G) report judge same as a in the terminations trial stationery dated 1963 on a November Prelimi position to make. Cf. best Company” en- of “United Fruit Jamaica nary Evi Rules of draft Department” which con- titled “Medical District dence for analysis para- a medical a tained Courts, note pp. 188-90. we graph “History Pa- as Elicited from type report we is of tient.” States v. admissible in United Again report testimony and the (2d Cir.1962). Of F.2d 792 both deal Gaussen’s version weight course, say aft is to if this were admitted accident but who criteria, jury might applying these have er attributed per- be for two “bedside” statements be attributed it would possessed should termination. son who employee’s knowledge his em- greatest the cause claim government) ployer (the based on a accident? payable statutorily compensation fixed of items 1 the exclusions Because of fault, regardless to him thus eliminat- interests believe that ing any probability that directing justice served are best fu- with a view toward items 2 trial. new litigation ture an based on action governed the discus- 3 should be negligence. Accordingly, believe the sion above. entirely in ex- trial court was correct directed. trial Reversed and new cluding these items. KAUFMAN, Circuit R. IRVING
Judge (concurring):
Although the con- I am in accord with erroneous the trial court’s
clusion that evi- items one and four exclusion reversal, I cannot requires our dence majority’s
agree treatment of with the Captain Nielsen’s and United Fruit letter to United Individually McGEE, and as Pearl Ardoin report. The statute Fruit’s accident Administratrix, Etc., et Dative governed, tiffs-Appellants, issue is Plain docu- 1732,1 requires order for a as a ment be Inc., & M BOAT O “in the be made record it must Defendant-Appellee. Supreme business.” No. 26785. interpreted mean this term has Court States Court of United prepared “for must be Fifth Circuit. systematic of the business conduct Hoffman, 318 a business.” Palmer L.Ed. 63 S.Ct. (1943). Captain letter Nielsen’s Company’s were purpose, prepared not very type of evidence fact the because in Palmer inadmissible
likely a view inher- litigation and thus
toward future Moreover, ently untrustworthy. clearly
reports not of the character are v. New
held admissible Cir.1962). In report ad- case we held the accident injured precisely
missible Preliminary Proposed Rules Draft of submitted to considered the Judicial Supreme States District of Evidence the United Conference or the It con- Court. upon by majority by stating: ex Courts relied be cludes “it should under- actly way It has it be. is in com- described stood Court no Supreme adopted by Court. Draft] not not [the mitted to has preceding transmittal The letter of consideration.” Since the suggestions depart radically Draft Rules solicits Draft does so by April 1, 1970, appropri- law, Bar and em Bench and not current do believe it yet phasizes rely upon ate Draft for us to at this time.