*1 here, the termination Parry apply Plaintiff-Appellee, HOPE, Frederick H. pac- nudum is not contract clause of the right termination tum, and that legal PUBLICA- is HEARST CONSOLIDATED the contract and that is mutual INC., Corporation TIONS, The Hearst binding. and Defendants-Appel- Igor Cassini, and nothing quotes from Appellant lants. ref complaint no record makes and No. Docket 26639. support contention erence in of his Appeals United States Court of alleges written complaint Second Circuit. appellees breached contract was Argued Jan. find termination; and we prior to its respect 7, 1961. none. The same be said Sept. Decided allegations concerning mistreat appellees the contract ment after made terminated.6 No reference is any appellant’s facts either briefs complaint from which

stated appel may reasonably be inferred that have slander

lees committed libel or against appellant.

or other actionable tort allegations complaint contains no showing

fact slanderous false or concerning appellant statements

published by appellees. most Under the interpretation

benevolent Procedure, plaintiff

Rules of Civil required complaint to set forth in his “claim,” legal right belonged appellant appellees and which the damages resulting breached and the allegations

therefrom. We have no such

here. supra What we said Case con-

cerning right to amend applicable Appellant ample here. had opportunity complaint to amend his up claims, urged, set now for dam- ages independent arising to those contract,

the termination and he advantage right. failed to take of this correctly the court below think We complaint for failure

dismissed upon which relief could a claim state granted and its action is

Affirmed. quiring plaintiff-appellant’s policyholders appellant’s is stated 6. This contention competitor report to a also follows: brief as agents employees “Plaintiff-appellant the same fact further states defendant-appellee damaged were under- because of the malicious be was discrediting plaintiff-appel- acting mining defendant-appellee, acts employees agents through lant.” in re-

agent of Investi- for the Federal Bureau gation. Defendant Hearst Consolidated pub- Publications, Inc. is the owner lisher of the York Journal-Ameri- New “Cholly ; can Cassini is the author appears Knickerbocker” which column daily Journal-American; in the The newspaper Corporation operates Hearst Syn- King syndicate, Features service dicate, reprints numerous which and sells Cholly columns, including Knick- feature through- erbocker, newspapers to various out United States. alleged complaint defendants Hope Cholly Knickerbocker defamed in a April appeared

column Journal-American, Palm Beach days and numerous Times later few newspapers. libelous other The claimed item read as follows: “Cholly Says: Knickerbocker Story of Has Man’s Wife Rich Gossiping Palm Beach buzzing with the Palm Beach is story that one resort’s rich- of the caught in a men his blonde wife est day compromising spot the other agent. Cameras, a former FBI anguish and the whole screams ” nawsty bit gossip para- publication using names, graph in “the known sharply item,” as a “blind raised trade” applicability the issue of at trial plaintiff. Hope that he and claimed readily community others most referring recognized to him- as item Dodge, Gregg and to Mrs. Sherwood self Siegel Crowe, Crowe, & J. Vincent Dodge wealthy of Horace members wife — Siegel, City (Morris York K. New Palm Beach “Internation- so-called City, brief), plaintiff- Hope he, testified that or “Jet Set.” al” appellee. comparatively member of the as a new City (Mc- Henry, New York Charles Office, County had received ex- Solicitor’s Brennan, New York Henry Cauley, agent. publicity an ex-F.B.I. tensive defendants-appel- brief), for City, he, unlike a was that num- His agents lants. other former Palm ber Beach, primarily as an was known ex- MOORE, FRIENDLY and Before only further, agent; he was one Judges. SMITH, Circuit traveled F.B.I. men who of the former high society circles. Judge. the resort’s SMITH, Circuit testimony, own his addition to young Palm Beach attor- is a Plaintiff live offered the special formerly as a served ney who knowledge Hope’s applying outside- Lynch, his own had called who James J. argues ; deposi- column, facts he that where the witness- and the interrogatories, attention qualified ex- properly has been as to his evidence, written tion knowledge, trinsic would approximately other citizens his a dozen reasoning dis- having qualified admissible. Such would Beach. After of Palm *3 tinguish decisions, being Appeals two Court of of the residents witnesses as those 1809, Hopkins, Hope as Van Vechten 5 Johns. acquainted v. with area and having —and 211, language, where, indeed, ques- newspaper there is in item read the page 226, helpful appellee, Julian plaintiff’s to to and them asked counsel tion— 1957, Consultants, you v. American the Business read the time “state whether at you N.Y.2d conclusion 155 N.Y.S.2d N.E.2d formed a article agent Williams, 1828, But in v. Gibson name of the former FBI as the to Interroga- Court, holding Wend. the in similar referred to in article.” such excluded, deponent properly evidence to have requested “state been tory to the placed ruling ground you its on to be the broad person believed the name of the subject opinion agent that the to in the was not one former referred the FBI ”* * * simply query and that facts, leaving next witnesses article continued, and the state the reason or reasons the conclusion for “state the jury. why approv- the you This plaintiff to be the was followed and believed agent People Parr, 1886, ed in to in the arti- 42 Hun former FBI referred ”* * * ground where the questions court added the Similar were that if cle recogni- bring the concerning could in asked the witnesses’ such testi- mony, Dodge lady the tion of Mrs. the involved.- defendant would to as be al- allowed, objection, lowed to counter to Plaintiff was over oth- evidence that foregoing ers had questions not so read and the these understood the article —a jury; necessarily conclusion that answers of the witnesses to the the does not fol- ruling low but repeated on which correctness of ity admissibil- has been the New principal York evidence is on courts the issue as a basis for the ex- clusion, appeal. Morning Ass’n, this Stokes v. Journal App.Div. 569, 73 N.Y.S. U.S.C.A., 43(a), F.R.Civ.P., Rule Bennett, 1902, O’Brien App.Div. 367, governs admissibility which of evi- Although appellee 76 N.Y.S. 498. is lit- trials, provides dence in Federal civil erally urging opinion correct in that the part: pertinent in Stokes does not indicate whether the “All evidence shall be admitted give witness had asked to the back- under which admissible the stat- ground supporting of extrinsic facts his States, utes of the United or under opinion, sug- strongly the circumstances ap- rules of evidence heretofore gest opinion testimony must plied in the courts of the United founded on have been such facts rather hearing States of suits in interpretation pub- on mere of the equity, or under the rules Finally, lication. v. Gannett Michaels gen- dence courts of Co., 1960, 417, 420, 10 A.D.2d 199 N.Y.S. jurisdiction eral of the state in confirming 2d contains a dictum which the United States appellant’s position; perhaps we would any case, held. the statute or if not be bound it stood alone and reception favors ” contrary view, basis for a * * * governs the evidence nothing but there is since 1809 Federal statute has been relevant No contrary and the Van Vechten case is attention and to our called generally support cited to the broad ex- Appellee for exclusion. law calls case attempts clusionary rule. distinguish state cases as where the Unless then the witness situations limited construing simply the four “under corners admissible the rules of evidence applied publication in issue rather than heretofore hearing admitted. .1 suits Moore 43.02 [2] States United Wigmore rul- its exactly position erred took a counter equity,” trial court scope thrust of ing. Moore; deplored As that of he what he “equity clause” (a) hodgepodge considered a evi of Federal con- source particular have been dence rules and felt that Rule controversy, is desirable siderable tying should have the effect the rules obtain provision interpreting exclusion perspective. further some large practice except to the local state — promulgation Immediately after in the unusual case where Rules Rules, Moore hailed Professor pertinent. relegated statute He making attack “frontal and 44 equity” provision virtually “Federal to a *4 * * * (I)t is sub law of the inoperative affecting admissibility role in revolution (a) of Rule 43 division both “equity because the rules” were in plac general evidence, and federal izes applicable to common law actions and un of admissibility upon sole basis the es general ascertainable due to a lack of materiality.” Moore’s relevancy and reported opinions; thing the one the 43.02[3], This Practice Federal ff courts any were not to was do to invoke opera prospective sanguine of the view “Federal common law of evi 43(a) probably based was of tion Rule Wigmore 201, dence.” See 1 6(c).2 § largely author’s conclusion on the At least Appeal, four pres Courts of the like run much equity were courts Third, Eighth Fifth, circuits, agencies, and Ninth 5 Moore day administrative ent spoken, implicitly evidence, least, proffered at on the most and that question of freely 43(a) whether Rule material, authoriz- was and if relevant Commenting on the regard thrust of Dean then, only mat- was, with 1. “It Wigmore’s position, Dean Green stated: the competency of witnesses of ters primary purpose “The behind admiralty equity courts and federal (a) uncertainty is the removal evidence; of con- law of state the follow bound as cerning the source of the federal they of law were free matters to other purpose only evidence. This evidentiary principles. has been develop own their partially accomplished. Uncertainty only from not speaking, freedom of Because precedents required to the by choice of but, generally rules, from state Conformity the sys- Act under a evidence, unified the of technical procedure tem replaced of ques- by difficulty has been very little had uncertainty testimony.” precedents admissibility as to the choice of of of tions required by secondary [this] Rule. A 1307. Moore purpose position adopted behind the rule is the commentators moderniz- 2. Most ing liberalizing closely and of Profes- akin more evidence law.” much Wigmore. Green, Admissibility The of Dean Moore Evidence sor Un- hopes 43(a) der the Rules, Federal for Rule Moore’s Harv.L.Rev. While (1941). by law the case sobered somewhat rule, Apparently quite up willing under the see built to live with the liberally citing “uncertainty” Holtzoff, goal infra, & Barron the of liberalization Green, obtained, urged, Dean could be article Dean a landmark Green from 43(a) position interpreted that a Federal “Rule should be the take so as still court general concepts apply to admit in evidence what should district relevancy ought materiality whenever there court thinks and to be admitted when either the “Federal rule” exclu- United States cut no clear state sitting which the trial court is sion. has not evidence, controlling rule, laid down a law excludes the state “If the and the oth- type ques- er excludes the no clear federal rule on the there and ques- subject tion. It is further must decide submitted that fed- admissibility general princi- eral prec- decisions in actions at law are of of tion determining materiality relevancy, edents for ples and com- rules of equity.” purpose p. dence petency. Id. rule is to application Ferguson, of a liberal also Callahan and certain See Evi- make admissibility rule for the and dence Procedure, the New Federal Rules and flexible of Civil Holtzoff, (1937). 2 Barron 47 Yale L.J. evidence.” Procedure, 675, 676, § Practice court held would bar ment dent because copy against tablished judicial islative ered sion. *5 had eral generally missibility be a case ity ; that the Implicit dicial jection Holtzoff view 154 F.2d at manded exclusion timony “almost thusiasm” jury rule. demned unanimous based on broad only surviving es federal courts Wright The Fifth Circuit Cir., law never been a Federal rule trial materiality, dictum, the Court 170 A.L.R. action wherein did Monarch Ins. interpretation, which called Judge Goodrich, action history should of the Moore-Green-Barron of evidence.” The Pennsylvania statute, and in the Court’s unique court excluded his the not where and not the through Wilson, party that a Florida because save all panel, page came to he use corporate 281 F.2d serve that Rule eyewitness stated, of the modern had basis relevancy and material- a rule so situation of 1237 was court rule which principles of at 620.3 in a and, further, all restrictions on affirmed “without many for a to make the rule Co. Ohio not been trial of a recently, in consid- Cir., 1946, the unambiguously judicial “we be exclude holding particular 401. There plaintiff’s presi- law of opposite conclu- different removed the writing generations thoroughly believe this to statute proffered tes- Court personal furnished was in prior new being writers “survivor” legislation freed was a it in relevancy v. evidence. accident. applies by Spach, law result. which case.” state- found rules, F.2d “one fed- con- leg- the the ad- de- en- re- ju- es- in- or & kins, problems weapons.” scope prior L.Ed. admissibility Court, tablish the which, with its endless which evidence come within judicial wisdom, promulgated relevant material on the other It defines the three standards missibility. scientific under cluded. But terms of other There are —there that courts in efforts common ing dergo ‘heretofore’ had been (a). “While we thus have no “ ^[*] prohibit prohibit holding disposed inconsistent statement 1188—went on having factor It does newas [equity posed policy law, admissibility, many respectable age 304 U.S. presence the considered exercise most ancient are an judicial probably determining [281 F.2d 411.] evidence because the or make unessential the admission of exhaustively the But it does not is we would hand, for the state occasions ^[*] of Rule speak in since federal rules] pertinent three Erie proffered purpose complexities probative outgrowth today’s travail of few be was admissible ^[*] required to un- add, R. Co. 58 S.Ct. future, categories or, not expressly ex- hardly trustworthy. federal, required. instances use discussed to Rule 43 affirmative think an- exclusion. ^[*] sources— litigation will not evidence —and purport of such search- for ad- Although case, a rule favoring either forensic doubt many think other clearly Tomp- like ^[*] our etc. that a court all of reasoned that constituted with The court federal court. organic necessary power constitution to es- the equity case law ques- criteria, probably its oion re- dasis that further The Third Circuit 3. highly prejudicial v. in Gordon tioned Wilson case inforeed “grossly improper.” Robinson, Cir., F.2d up Eighth “nothing has lined with Circuit 194. The court found light Atchison, Wright any v. Wilson in Schillie on rules sheds the old Co., Cir., Ry. Topeka problem” Santa & Fe that certain evi- and held admitted; Oil 810. See also Potlatch & 222 F.2d Refining dence have been should not Co., Cir., 1952, grounds perhaps v. Ohio Oil Co. are for exclusion clouded, however, 199 F.2d 766. the fact somewhat apparently felt, court governing tive rules to stand could invest in it would Advisory dence.4 situa- Committee helpless new face of a however, in while Federal duties Rules vast tion. Since it has liberty shelving ac- immediate powers respecting at time both men’s surely tion on a of evidence uniform code property, “rule courts, capacity judicially noted to deal ascertaining working truth than commenta- [the] the manner better Moore, expected.” while con- feder- had in a least tors fessing novel situation. At potent optimistic in overly he had been al no less district courts are predicting complete pre-1938.” 281 modernization they evidentiary page liberalization of federal promul- pressing —and while for the still illustrate, foregoing nei- As cases gation of a uniform code—commented victory ther total side far can claim thus tolerably the Rule “has worked Moore-'Wigmore controversy over well.” 5 Moore 1313. 43(a). & import Barron of Rule urge Spach “de- Holtzoff ease in this We think that the case law Barron 2B followed.” to be serves supports and, generally, circuit elsewhere Judge Brown Holtzoff, 962, p. 218. As § application broad and liberal Spach, however, “There pointed out (a)’s equity” in order “federal clause in which probably instances few fully implement one proffered with- will not come “admissibility exclusion.” [and] [of] categories or in the three Wright Wilson, supra, 154 F.2d at page expressly F.2d at excluded.” 281 page Graham, Hertz v. D.C.S.D.N. that the chal- hold Since we here Y.1958, de 23 F.R.D. 24. In a case lenged instant case evidence in the *6 shortly promulgation after of cided properly equity rules admissible under Procedure, this the Federal of Civil Rules courts, applied in federal heretofore “ * * * stated, court directed we are need not at time whether decide 43(a) Federal Rule to follow federal courts can and should feel free holding evidence, that on whether state develop new rules of evidence as novel federal, or bility.” which admissi most favors situations demand. Cir., States, Boerner v. United 2 1941, 387, (emphasis argues 117 F.2d 391 add “reform” Appellant ed) Company In. Travelers of Insurance evidence uniform movement for Childs, Cir., 1959, indicates, 2 855, 272 in of F.2d in Federal courts properly opin court held courts admissible the itself, to which extent physician, psychiatrist, ion of a not a exclusion- state bound felt themselves capacity; an issue of mental it of those cited two ary that some It is true rules. Supreme Court cases and indicat- one decision rules have pressing uniform for Appeals of the Court for the District of Rule dissatisfaction with ed their although appellants apparently Columbia allowing the for as a vehicle argued, law, basis and restric- from outmoded freedom real question Estes, net effect has been to refer the Need E. The Hon. Joe See solution, including to state law for in of Evidence the Federal deci- Rules Uniform Courts, 1960, Degnan, words, 331; In sional law. other 24 where F.R.D. Feasibility is no federal statute or in in of Rules of Evidence rule admissibility, Courts, 1960, favor of as so is the 24 F.R.D. Federal Joiner, often case, governed by the matter law Rules of Evidence for state Uniform ** *” 1314, Courts, 5 1957, Moore [4]. 20 F.R.D. 429. the Federal U43.02 (Emphasis added.) cases, Moore, place Analysis infra, in another in his indicates 5. Professor expressed text, us that he underestimated the in- a much less cheerful 43(a): finding operation genuity of the courts in Rule relevant view of the “equity which allow in favor of ad- rules” admission of the rule is cast “While missibility general competency, in into evidence. relevant

687 evidence, court excluda opinion inadmissible. held certain was such an foregoing did the cases Mississippi law, In neither ble admissible under was step, in ultimate out the reason gestae rule,” under cit the “Federal res wording of the strict conformance with ing opinions at law. two from actions rule, “carrying so-called over” Peoples Gas Co. Sixth Circuit court’s equity. In this “Federal rule” to 1951, Kentucky Fitzgerald, Cir., 188 6 term, In Carl- step taken. last expert F.2d witness held 198 that an Corp., 2 Hoist son v. Chisholm-Moore testify common could as to matters held Cir., 1960, the court F.2d 281 knowledge though part “ulti even appli- require proof of it that would not although Kentucky per fact”; mate law aof cation where the haps exclusion, called for admission was general been and had nature upheld “general rule.” on the basis of a seq- aequitas admiralty law, since alluding 43(a), the even Without to Rule legem. uitur Tenth result Circuit reached a similar scope a case clearly concerned with the allow call for No cases in this circuit expert testimony, able National Miller’s interpretation 43 Rule restrictive Liberty Co., Chicago, Insurance Wichita (a). Ill. v. in Mosson v. The court Co., Freight Cir., 1958, Flour F.2d Mills Co., Cir., 124 F.2d Fast ease, Spach impeaching A.L.R.2d 385. The held testi- that certain holding support mony need case because should been excluded justify admissibility found in a situa it under New admissible neither surely tion where must have 43(b) York law nor under already equity, been scope admissible has specifically of examina- defines the mentioned; cross-examination, holding the Fifth Circuit tion and Spach since incompetent any aspect. reinforced further their The state- very cases, Dallas Young, Cir., two recent Conn v. ment County “rulings Assurance v. Commercial Union F.2d the admis- Co., Cir., 1961, sibility governed by Ham 388 and Co., Cir., brice v. F. W. Woolworth forum” is not directed law of the cases, diversity federal F.2d 557. two case here. That was involving upheld Hampshire courts have a New accident feder *7 in evidence on the basis tried the Vermont Federal District stating Court; “rule” the apparently al or circuit established the court was after operative Proc the Rules Civil only date of of that while the substantive law Brunner, 6 governed, edure.6 United States v. situs of the the the accident 276; Cir., 1952, pertinent evidentiary F.2d Lawrence v. 200 law that Cir., 1953, Nutter, Final say 4 203 F.2d 540. Vermont. The court did not to what ly, governed— dis two district courts have shown a extent law the of the forum problem position approach in the to and since law of the Vermont favored ad- mission, called for problem manner flexible the effect broad Spach law,” any, case. Hertz “Federal never arose. Fifth Circuit if D.C.S.D.N.Y.1958, Graham, 23 F.R.D. v. have, by large, dem- circuits Other Freightways, 17; v. Consolidated Een liberality equal in the admis- onstrated D.C.D.N.D.1954, F.Supp. testimony under relevant sion Wright 43(a). in v. not believe do equity” clause of Rule We “Federal Robinson, supra, v. v. Insurance Co. Gordon York Life Wilson New In 184, Third Circuit look Cir., Schlatter, 203 F.2d our brothers diversity cases, jurisdiction fact in evidence of these cases 6. In neither diversity citizenship. of tbe A discussion Erie full Since immaterial. on based particular any can in this be found constitutional not feel dowe Spach, Co. of Ohio v. Ins. Monarch Erie doctrine —or overtones supra. interpretation of that decision— other application prevent rules of of Federal gestión before, way. other As noted that “federal decisions in actions appears precedents determining court to at law Robinson case applied equity.” felt admission of contested rules of See “grossly improper” 2, supra. under footnote Wright Wilson, any standard. In v. Having appli- concluded that a broad Judge noted that “whatever Goodrich equity provision cation of the is war- against firmly door one tries it is locked ranted, it to determine whether remains admissibility proffered testi- indication, prior there is sufficient ” mony page 154 F.2d at precedent, fairly the court allow always the federal rule had been either conclude that a federal court to exclude survivor to re- would have admitted the evidence question fer the to state “the law—and question. We think there is. In En- principle survivor rule quirer Johnston, Cir., 1896, Co. v. suits as actions at commonlaw.” well as F. judge the court held that the trial page 154 F.2d at 619. That Third properly admitted, case, in a libel testi- espouse Circuit rather would liberal use mony challenged similar here. supporting of “Federal of evidence rules” holding general The court based its on strengthened by a view legal evidentiary principles —and Franzen v. E. I. DuPont de Nemours strength gov- any purportedly Co., Cir., case, 146 F.2d erning Although ap- state law. that case disapproved by neither nor overruled the pears only precedent to be the Federal subsequent Wilson Robinson deci- squarely point, a dictum in Service sions, deposi- in which the court held the Parking Washington Corp. Co., Times tion of a man at dead time of trial “clear- 1937, App.D.C. 351, 92 F.2d ly admissible” under a federal points in the same direction. rule; authority prior the court cited as might an We be hesitant construct “at case law.” general “Federal rule edifice of a of evi- Eighth Circuit, It is true that dence” if only cited cases were the these two Atchison, Topeka determining Fe & Santa Schillie v. bricks hand. at Ry. ap- Co., Cir., admissibility, however, 222 F.2d rules of equity Federal pears undoubtedly a rather strict view to have taken be- would look carefully 43(a). yond meager prece- The court Rule the rather “undergo judicial looked behind a number Federal court dent travail searching respectable cited favor of admissibil- many to him cases ity sourc- Spach, and concluded that there was es.” supra, Co. of Ohio Monarch Ins. opinion implies, rule”; page “Federal In this re- however, gard, appears at law are suffi- decisions that the ex- ciently equity prac- clusionary represents distinct, of federal indicative satisfy requirement— lone, minority tice to not a jority voice. ma- The vast *8 making cases, reported federal thus mous, courts unani- from both Amer- courts, espouse so far as have been to as- able ican state and British sug- certain, adopting evidence;8 Dean Green’s admission of such text- Wright explanation 1850, Butler, 7. 71, This v. Wilson is Miller v. 6 Cush. 60 equally applicable 71; 1853, Allen, to the decision of the Mass. v. 11 Leonard Refining 241; 241, in Potlatch Oil & Ninth Circuit Cush. 65 Mass. Commonwealth Co., Cir., 152, 1952, Enwright, 1927, 9 Co. v. Ohio Oil 199 F. v. 259 Mass. 156 N. 65; Aldrich, 1891, 2d 766. E. Farrand v. 85 Mich. 593, 628; N.W. Hoeffner v. 48 Western 1872, Kelly, 641; Clothing Co., Mo.App.1942, 44 8. Russell v. Cal. Leather 161 Patton, 1855, 52; 722; Blanchard, 1860, v. 18 Ga. Hawks S.W.2d v. Smart Smawley Stark, 386; 1857, 137; v. 9 Ind. 42 De N.H. Garrison v. Newark Call Armstrong, 1871, 35; Printing Co., 1914, 217, Armond v. 37 Ind. & Pub. 87 N.J.L. 1919, Chapman, 590; 664, Co., v. 104 Kan. A. v. Winans 92 Journal Pub. Colbert 266; Goldsborough 1914, 156, 146; Briggs v. 142 180 P. Orem 19 N.M. P. Johnson, 671, 36; Byrd, 353; McLaughlin 1906, 1850, Md. 64 A. N.C. 103 v. 33

689 similarly its admissibil- suit advocate would have admitted the writers forth, gen- identifying put strength evidence here ity.9 of the In view authori- persuasiveness10 objection may of these eral raised An be alternative only that, ques- being pertinent confident had —that this one ties we hearing arisen, possibly a a Federal court could not defamation actions tion 475; attempting 1848, Russell, v. 17 State we are to make Ohio bar —where v. Mason, 130, 273, 1894, guess” 26 38 26 Or. P. an as to the reaction of “educated Abernethy, ; Chapa presented Tex.Civ. v. 779 with L.R.A. App.1915, People 166; problem. v. 175 S.W. similar 209; 180, Ritchie, 1895, regard 12 42 In Utah P. this also we feel the evidence 1881, Fuller, properly key ques- Knapp Cf. 55 Vt. 311. If the v. admitted. Cal.App. Blodgett, 1932, Dewing concerning 124 v. tion be considered one non- City 1105; expert opinion evidence, 100, Julian P.2d v. Kansas 11 the modern view Co., 1908, 35, 77-80, presented 107 Mo. 209 is to allow Star 496; Morgan 1846, jury proper Livingston, cautionary 2 v. in- S.W. Ry. 573; Rich.,S.C., Jenkins v. Southern structions. This can be seen most clear- 1924, 180, ly involving Co., 912. an 130 S.C. S.E. cases issue of mental capacity; Warren, 2 v. Car. & P. once witness has Bourke testified Gosden, personal knowledge (1826); 1 C.B. of. Broome as to his v. and his opportunities subject, (1845). v. See also United States observe 728 Ocampo, he may (1910); give competen- 1, an Phil. Wor then as to cy. Ocampo, 42, (1912). 22 Phil. Mut. Connecticut Life cester Insurance Co. Lathrop, 1884, 612, 111 U.S. 4 S.Ct. 1971; 112, Wigmore 9. on Evidence § 536; 28 L.Ed. Turner v. American (Lewis 1897) on Evidence Ed. Greenleaf Security Co., 1909, & Trust 213 U.S. 417; Odgers on Libel Slander § 29 S.Ct. 53 L.Ed. 788. (6th 1929) C.J.S. Ed. 559. See also 53 present Virtually day all critics favor Am.Jur., 209; § and Slander Libel simplification some and liberalization of Slander, Law American § Libel and evidentiary along our broad lines of Institute, Bestatement the Law materiality relevancy discre- —with Torts, 564. § tion to be vested the court to admin- previously, keep- 10. has been noted Buie ister the trial ing As flexible manner (a) expedi- in mind reads terms considerations of trial —di- tion, probative recting Federal Courts to admit evidence value and likelihood un- prejudice properly jurors. received under three due See, in the minds of the g., McCormick, clear alternatives. While e. stated Handbook of the flatly wording (1954), xi, xii; of the rule would seem Law of Evidence Ameri- prof- preclude excluding Institute, a court can Law Model Code of Evi- dence; 1313; Moscowitz, admissible fered evidence under either Moore Trends evidentiary practice, federal Procedure, state in Federal Law and strongly urged Green has the ap- Dean F.B.D. the instant case important single of a avoidance literal and mechanical the most issue on the plication question liability of the rule. applicability, was the assump- plaintiff, “Buie is founded on the “blind item.” The tes- timony when a tion that choice be- be made of the dozen or so residents who rules, the ad- Hope tween two one which will had read the item and who knew always highly mit evidence should material; be chosen. was thus relevant and general principle assump- “standpoint Taken as the [Palm Beach] sound, many community” important. but tion is principle like course, another broad was all Of universally by single is not correct. drawn inferences members excluding community the law proba- Sometimes are of limited bearing dence should be chosen.” 55 Harv.L.Bev. tive value as what the com- munity reasonably could as whole in- *9 presumably always weakness, however, would Green Dean fer. This ploited was ex- place desirability fully by the of admission ex- defense counsel in his regardless cross-interrogatories issue clusion in of the existence and in his summa- favoring jury. a or federal cautionary of state rule admis- tion to the The court’s sibility. Although might concerning questioned charge we hesitate to the testi- position adopt mony quite a in the face of Buie clear. We think that (a)’s apparent mandate, procedure in cases where better such finding process serves the truth clearly admissibility, rule favored one than does absolute ex- surely desirability considerations of clusion. germane in a situation such one as the Corp. Washington equity. applied Co., supra, in have or been Times arisen plausibility, page 504; at v. Kansas this contention Julian While concep- City 35, 77-80, Co., 1908, think is on too narrow Star 209 Mo. it based Wigmore pertinent of evidence” 107 tion “rule S.W. 496. of the states that these equity jurisdiction “nothing of federal libel cases opinion rule,” of have the the to do with Wigmore fn. courts. § problem but indicates rather the of the discussion in noted before As broadly is of one relevance to the ulti- to rules of 43(a), reference the particular mate per- notion of whether a be equity courts would in applied dence son was defamed certain This words. meaningless to courts were the virtually “requires standpoint us to of take the “equity precedent”— upon actual insist community, particular the or of the hear- in- courts or none. is little Wigmore Upon ers or readers.” 7 equity rules employed the stead have admissibility this formulation of the admissibility either implement to clause problem, argument for exclusion general citing rule by merely appear would to be that such rule, law, by noting of evidence or allows the witness to “encroach on equity too reasoning from there jury’s by giving function” direct conclu- applied basis of it on the would 11— on one sions of the “ultimate facts” legem. aequitas sequitur is It maxim applicability this case identification or reasoning process diffi- causes which alleged defamatory which, here, it as culty in a case publication. not specific question could claimed equity. have arisen explained, However the rule be wheth ques- precise arguendo, the Assuming, opinion er in terms of the rule or other posed nev- admissibility here tion of wise, appear it would closely to related not fact is equity, that upon in passed er many specific questions evidentiary The rules issue. dispositive of must equity have come before fragmentary bits more evidence are Probably courts.12 approach basic to our they rather, ground rules; specialized of represent, just here equity is our belief that as the attempted main, the (a) clause Rule 43 does not restrict admissibil- rules of application broad reported to actual equity prece courts exclusion, supposedly de- best ity and dent, it likewise not limited to so-called protect the truth signed promote and “equity equity traditional causes.” The number finding unlimited process, in an undoubtedly Thus, primar were invoked situations. unique courtroom pe- ily relatively as a rule because characterized here what is Conformity Act, actions has free from the defamation culiar to 17 Stat. justified judicial analogized (and citation and not bound state lay admitting precedents evidence, Wigmore 171; of) insanity, problem 43(a), which is to use this invocation issue of a Rule Knapp stranger “admissibility exclusion,” courts. and not Fuller, 311. Other courts 55 Vt. an instrument withhold the benefits arising question as similarly treated the broader causes closely unduly allied to overall one “at law” would operation to restrict the Parking Service opinion evidence. Rule. argument very adopted was the advanced 11. That the court the broad common de- case, “prior the Carlson in favor exclusion nominator inconsistent state- supra, narrowing specific where court held that ments” rather than problem tinguish nonetheless admissible on before tribunal so as dis- strength principles governing of a Federal rule admiralty. at law use of “one of most ancient of the weapons.” forensic *10 support ap- 12. There is some for this proach Spach case, supra, where wrong 1961, m Co., Cir., Island Rail Finally, Road 2 289 F. we even 2d 797. foregoing analysis, sufficient is sup precedent equity to cases Defendants further contend that evidentiary port the inference it was erroneous to admit evidence might presented well here Hope lost an election for Senator State The tra equity been before the courts. publication after the libel. The course, rule, Federal question interesting ditional is an In one. South Cir., jurisdiction Publishing Horsey, to en equity western courts Co. v. 9 1956, join Horry, 230 F.2d the court excluded Kidd C.C.E. 319 defamation. v. overly speculative; generally 773; such evidence as D.Pa.1886, 28 see F. however, New York courts Cort allow it Chafee, Equitable Re Pound & Cases right Anderson, 1924, 1, App.Div. v. 208 Against Injuries to lief Defamation special 202 N.Y.S. as an item is, 1930). Personality (2d There ed. damage. plaintiff pleaded Here neither enjoining however, false a line of cases attempted any pecuniary not prove to publications plaintiff’s and libelous where damage jury charged and the was not as rights being thereby in property were alleged any to loss Plaintiff of income. jured and libel had overtones where the justifies proof of of the election on loss of coercion trade. and restraint pleading of his basis the libel Kane, C.C.N.D.Ill.1888, F. Emack v. 34 “caused the readers thereof to believe 46; Adriance, Platt National Co. v. * * * plaintiff morally and Co., Cir., 1903, 827; Harrow 2 121 F. A. temperamentally unqualified to hold public office Co., Farquhar B. Co. v. National Harrow position or other trust Cir., 1900, 102 F. L.R.A. confidence” anas element of dam Sun-Maid Raisin Growers California age. Since New York consid courts Avis, D.C.N.D.Ill.1928, v. 25 F.2d 303. sufficiently proba er the election returns Although intimidation and restraint of jury, reception tive to submit to a keys principal trade be the proper. question evidence was As the cases, these v. Willis pecuniary injected loss not into O’Connell,D.C.S.D.Ala.1916, 231 F. any point, the case at we cannot see how the main elements a defamation action prejudiced by defendants were the fail present. plaintiff, are nonetheless plead special damages. ure to necessary obtaining re element lief, prove judgment would have that the coercive is affirmed. understood, customers, lies aimed his direction. In a case where MOORE, Judge P. LEONARD Circuit specifically named, was not (dissenting). the exact now issue before would be us merely another case in Were presented. Resort to the rules of evi damages awarded were “ex- employed in Federal dence “grossly not excessive” or cessive” but by inapplicability. is thus not barred high monstrous,” “not a dissent in but arguments nothing further made Two add this case would to the liter- appellants already subject little Al warrant discussion. available ature $58,500 though quite analyses verdict found in the various judge high, do not think trial opinions Pacific in Southern Co. v. Guth- sug- broad discretion in rie, Cir., his this area abused 926 or the refusing damages set it gestion power aside. The award review Dagnello Long “monstrous.” in a recent in this found circuit compensatory damages spread $22,500 Guthrie, Cir., Pacific Co. Southern evenly among the three defendants. F.2d 926. jury addition, $12,000 puni- assessed Chicago York, and St. 2. Affolder v. New damages against each tive defendant. Co., 1950, R. R. 339 U.S. Louis L.Ed. 683. S.Ct.

€92 Cir., Long enough. Co., permits (Dagnello is clear admis- R. It Island R. Actually, (1) ad- sion of under all such admissible 289 F.2d 797. inordinate, (in- monstrous, out- jectives statutes of United States as meaningless rageous applicable here); (2) as Unit- admissible and excessive legal hearing ed suits or review. States courts “on the of standards for decision equity” Possibly (inapplicable allow in because day the courts will here some jury case); responsibility dam- this is a and common law the age shuttlecock (3) being back of evi- control admissible “under the rules now batted appellate courts dence forth between trial jurisdiction the other to come rest on one side or the state procedural court, giving (this of the spectator United third thus States court is held” litigants opportunity category applies). an alone The Rule con- tinues that know where it is. “the rule which statute gov- reception favors the of the evidence importance The in the this case lies inap- provision erns.” This is likewise that, judgment, my fact it overrides plicable involved because statute is principles spirit the preme and the Su- and no York New rule favors admission. Tompkins Court’s Erie R. Co. v. contrary concede, majority To the as the Guaranty Trust Co. New “the York case law for exclu- calls York4 If decisions. that Court’s state- sion.” litigation ment that “the outcome of the in the federal court should be substan- Fundamental consideration tially same, legal so far as de- problem rules here a fact that this is is the litigation, termine the outcome of a as Throughout jury law common ease. (326 it would if tried in a be State court” ages, evidentiary up rules been built 99, 109, 1464, 1470), U.S. 65 S.Ct. is to legislators prac- the courts and whose seriously, be taken at all have a situ- experience tical indicated that ation in which mass of evidence of vital goal of an accurate determination of the importance jury in a case was admitted truth is best served the observance in a Federal major- court which even the jury of somewhat different rules in cases ity concedes would be inadmissible in non-jury equity cases. rea- the same case the State court located judge son for this difference is across street. And all this because weigh trained in the is law better able of the fortuitous circumstance diver- Hearsay the law and the facts. sity. apt is excluded it because to lack relia- bility. Opinion evidence is confined There can be no doubt that experts particular subject under (by interrogatories) written several consideration. they witnesses had in their own minds formed the conclusion that course, Of all rules of evidence are news article referred to and to purview within of the Erie doc- Gregg Dodge Mrs. must be considered If trine. a rule of evidence is directed highly this, course, material. But reaching particular not toward result very was the conclusion which was for promoting but toward an efficient and upon jury determination the facts. That trial, directly fair and is not related to jury strongly would not in- rights primary might duties, well speculative fluenced conclusions “procedural” purposes. for Erie For scarcely open to doubt. example, governing the admission posed impeachment is whether Rule scope 43 of evidence and the (a)5 supersedes Erie-Tompkins, clearly cross examination would fall Guaranty category. Trust-York rule. Note, within this See 66 Harv. U.S. 58 S.Ct. 82 L. 326 U.S. 65 S.Ct. 89 L. Ed. 1188. Ed. 2079.

5. Federal Rules Civil Procedure. *12 hand, 1), despite (1953). other more treatment On flexible L.Rev. 1516 in opinion so are York in other “evidence” New evidence rules of some State rights See, g., People and du fields. e. primary Greenfield v. intertwined with York, 1881, State of obviously toward New N.Y. and so directed are ties they Herrmann, 1912, are Matter of reaching particular result that Misc. a sense, clearly in Erie N.Y.S. 944. Just as in a “substantive” contract ac tion, irrespective apply of what a certain oral and should statements cannot cre done, rights might duties, ate and equity have in federal court too a libel so action parol in defamatory evidence York a be a State Such would state ment plaintiff directly in Zell v. Ameri rule. this said As court does refer to the Seating Co., Cir., can cannot be made the a basis of grounds, recovery 641, 643, merely on other reversed because certain individ willing they uals are U.S. to state S.Ct. be lieved parol plain statement L.Ed. 1552: to refer “Were to the tiff. evidence, is, respects, This part rule a rule of we could decide rule in some parcel question this without to state reference substantive defamation York, evincing law of New strong federal courts court decisions. But the State policy held, diversity have in line what has become which federal with customary states, respect regardless actions should doctrine in most what done, law, e., equity might rule i. federal it is a court substantive have proof the extrinsic is excluded because no ginee doorg a]1 4g(a) ^ are of RuIe upon or it claim defense can be founded cloged reception t<>^ of the evidence in ’ ’ what door does the ^estion’ ma» Accord, Long v Morris 3 Cir., 1942 F.2d 653, 141 A.L.R. 1041. gain pry open Surpris admission? fallacy majority opinion, ingly enough, “equity” door a con my opinion, proceeds cededly is that it to de- common law case. “conclude To hypothetical equi- termine what ty equity federal that a federal court would have making court would have done question” before admitted the evidence in is to an initial classification of the State ex- non-existent This assume a situation. elusionary Thus, presume, possibly jury rule. I could not case majority, equity brought Therefore, it could equity. find a federal an exception parol rule, could never have been faced with exclusion, apply exception would notwithstand- of admission or ing contrary rule, thereby, pertinence be, State in Of what can it as a foun effeet, changing decision, say the State substantive dation for that “had the rights flowing law as to question arisen, hearing duties a Federal court certain contracts. suit would have admitted the n identifying put evidence here forth” ? exclusionary rule in defama- State obviously majority agree completely tion cases is not as “substan- I parol tive” evidence rule. In some rules of evidence are more “The that fragmentary ground aspect specialized respects, merely it is one bits excluding they lay rules”; “supposedly designed promote Nonetheless, protect clearly dence. has certain best finding process.” New “substantive” overtones. There can truth dispute sought in its court decisions has the evidence decided be State finding” prejudicial is best achieved excluded is such a nature “truth exclusion; easily could affected other States have held the that it the out- analysis, therefore, contrary. In final of the law suit. And it seems come majority are, effect, equally my special opinion, clear that it is a rule of holding in a Federal court pertinence to defamation actions and is whether rigidly (see equity, Julian be common law enforced New York action may Consultants, 1956, judge receive American can evidence he Business accept principles under broad N.Y.2d choose to 155 N.Y.S.2d 137 N.E.2d be) they (whatever

of federal law might in somewhere some court because evidence. equitable action admit an *13 any of the puts an end I believe This Co. v. R. principles of Erie

relevant Guaranty Trust Co. Tompkins and York.

New York v. new remand

I would reverse

trial. HOLLYWOOD, OF

BLISSCRAFT Plaintiff-Appellant, COMPANY, Mar PLASTICS

UNITED Corp., Sha Morris Products max Eastern Great piro, doing business Defendant-Ap Company, Housewares pellees. 362, Docket 26829.

No. Appeals Court

United States Circuit. Second 2,May

Argued Sept.

Decided