Hoffman v. Palmer

court, duty must lieve in ef- against doing this we own estoppel our are poli- by proper Act fectuating policies on the of the Labor decision now affect its premium dilatory pro- effectuate putting followed on such to be here cies n ceedings Labor Act. us here. purposes as we have before limit the I fear that we cannot ourselves this, petition But, does if we all overlook do, others effect of what we and that er, now, showing deductions even make holding formal will cite us as that the most ought fairly to be which Board, enough, with- legal indirect of claims is private adjudication of not in the support, out actual factual and whenever giving capacity of public rights, but in its made, to take a back to however case Act, for objectives effect Board, event, years after for a trial damages minimization “not so much the (cid:127) Phelps Dodge wonder if issue. I produc promoting healthy policy Supreme majority really wanted that. Court Dodge Phelps employment” ? tion and B., U.S. Corp. supra promptly N. R. L. [313 The master here acted 133 A.L.R. efficiently. That, so, 85 L.Ed. S.Ct. find his hear- even prove offer to Petitioner does not ings this late return insufficient and at date 1217]. former equivalence between real to me to add matter to the Board seems workers, with their positions glass these arguments I have all more force to the seniority, the new important rights advanced, previously N. L. R. B. v. Gian- re mills or on jobs in the steel nasca, Cir., available A.L.R. attempted show also to (Indeed, contempt lief. like other hearings, relief.) go on men had refused initially hearings, labor should employment from only It to show Board, offers newly not some constituted jobs available agencies that steel ad hoc court help of seek men did not these try, get themselves agencies, or these opinion demon majority jobs. The these fair be considered cannot strates that these hardly conceivable equivalents; it is Moreover, hold. the Board will so on the advice said have relied men are and, has rights; to their the Board as PALMER et HOFFMAN v. al. indicated, quite justi the Board was No. 261. course this from the fied in such advice general taken, not from case had Appeals, Second Circuit. Circuit Court of hardly promote will It situation itself. 23, 1942. June employment if production and this late date. down now at be let July 31, 1942. As Amended this already view of indicated its Board has reply oath— under the detailed claim from itself, by its counsel Board petition for answer to the petitioner’s —to ignorance claim contempt. cannot We already shown it thinks Board what the circumstances. under the policy is correct persistent at able and petitioner’s Unless new, quite produce something torneys can futility this new reference the entire without might add that even I clear. case this result peculiar of this facts in most similar cases follow likely to practically back-pay else order — employer prevent an deterrent to real only practice, committing an unfair labor dis 509—must fall into Yale L. J. war times. boom use not be case said respect to future precedent taken as I to the Board. delayed for remand claims so, I be- fervently hope do City, for Brumley, New York E. R.

defendants-appellants. . FRANK, CLARK, SWAN, Before Judges. Circuit FRANK, Judge. Circuit reorganization Appellants, as trustees in York, Haven Hart- New of the New appeal from a Company, Railroad ford verdict, jury upon a judgment, entered $25,077.35 plaintiff awarding $9,000 him capacity and his individual The wife’s estate. as administrator his oc- grew action out of an accident appel- crossing the grade curred aat Mass. Stockbridge, lant railroad in West P. 6:15 December at about On M., coupe, plaintiff driving a Ford the was cross- passenger, at this wife aas car struck a loco- ing, when the was per- causing and engine, motive severe plaintiff the injuries to the and manent complaint alleged death his wife. The negligent failing the in railroad was while ring bell or blow a whistle to approaching failing crossing, the and proper headlight; view of to have verdict, appel- raised no issue liability rulings on evidence lants’ jury proper, charge were and exclusively pertain alleged errors alleged these matters. The errors are number, up will be taken four seriatim. urge judgment Appellants because of court’s must be reversed in evidence a statement refusal to admit signed by engineer the locomotive who driving engine was when the accident occurred; question- the statement represents a steno- form and and-answer interview, days of an two graphic record accident, engineer between after the superintendent rail- assistant of the were Present at the interview two road. railroad, and employees of the a Mr. Christie, the Massachusetts Public Utili- only Commission. The latter took ties minor part Appellants interview.1 merely engineer’s statement, offered prove that “this statement and offered was signed regular course busi- regular course of ness and it was such business to make statement.” at the time Benjamin Diamond, engineer was dead Brooklyn, N. Y. excluded, upon was Allen, Wilson, Edward The statement (William Paul trial. H. Dombroff, objection. Since the statement appellee’s all of New and Milton York engineer’s represents ver- purportedly counsel), plaintiff-appellee. City, of matter, aspect of infra. We further discuss this shall accident, urged sion its self-serving, of the it is were being far so prejudicial appellant’s exclusion to the defense. favorable of (and, was contentions says proper, appellee, course, Its exclusion it was because hearsay sup- because it offends rule. favorable that they were offered port contentions), by ap- being report engineer’s clear would pellant’s agent and in concern- its interest ly rule. be excluded under the common law agent facts which at the time of exceptions within the does not come knew likely them be- most a deceased witness. to declarations dispute come matters of and drawn into Shepard v. 290 U.S. Indeed, litigation. it is evident that the People v. Sar S.Ct. 78 L.Ed. very making report upon of the facts zano, 106 N.E. 87. Nor N.Y. prompted by surrounding the accident was it the that falls within kind of record possibility respondent claiming of the exception law to memoranda common damages suing appellant therefor. of business. made in the For * ** In this case the record in an inherent courts—as facts, in the form of the re- conductor’s tegral part “regular course of busi port, very for the purpose aid- exception rule—have ness” always imposed ing appellant possible litigation future requirement, respondent.” with the The court distin- clearly fails engineer’s the here statement guished question an earlier case where the record, person making the to meet: The was fact whether or not a woman was a on which supplying information passenger upon a certain during a cer- car based, peculiarly pow had no is must have trip, having tain she she testified that had misrepresent; mo such a erful motive to paid her slip; fare transfer the conduc- relatively tive, minimal if it must exists trip tor’s report was there held admissible speaking of rec marginal. Wigmore, having been made in course busi regular course of ords ness, says: made in of businses. Speaking case, of that 2 that there often added “It is court, case, in the Conner said: “We think misrepresent. must been motive to a careful reading that decision will show must offeror This not'mean does regard that the court did not report motives; but all such show absence as self-serving, for the reason it was not fairly merely existence of a if the made under circumstances when there were is misrepresent positive counter-motive any inducements whatever to record the instance, particular appear made in facts other than actually occurred entry be excluded.” would at the time. It was nothing more or less has often factor This motive simple than a the matter bookkeeping in In Conner decisions. stressed in the business, usual course of any without 310, Co., Ry. Seattle, 56 Wash. R. & S. thought of litigation future drawing the L.R.A.,N.S., 930, 635, 634, P. question. facts so recorded in It was substan 1110, facts were Am.St.Rep. tially reason of the absence of such considera case. instant the same as those tions report at the time of making the was made report accident of an There a that it was there admitted in evidence.” car, street of a writing the conductor In Bloom App.Div. 257, Railway Company, Union accident, immediately fol in the involved 779, 150 N.Y.S. and North accident, there and was soon lowing the Ry. May, Hudson 401, Co. v. N.J.L. Railway Street defendant given after to the A. the courts reached the same re- with its rules. compliance Company in sult on similar facts. report was admissible urged that was case, In the Conner the conductor’s due entry original “as an report pursuant (1) to a rule company business course of the duty imposing a to make (2) it and contemporaneously with and made “regular made —using course of business” sustaining the In recorded.” transactions colloquial those words in their evidence, the court said: of this exclusion “For the sake give sense. But the court refused to them argument, may ad we since, colloquial meaning, such a if it did report was made due course that the mit so, “regular foundation course compliance a rule custom exception disappear.. of business” Yet we quite universally followed. Those had come to be words a short-hand statements made see how the unable to such symbol doctrine, escape objection expression or report can (3d Wigmore, 1940) ed. Evidence reports will ways recognized that these reliance on rec- which is the essence of re partisan disclaimers of be biased and in which circumstances where the ords See, g., e. Mer sponsibility for disaster. checks were made furnish sufficient Queen, Fed.Cas.No. May riman v. make against misstate to inducements to Elvira, 9,481. Fed.Cas. Hand v. The badge trustworthy, give them “some them in such No. the court said of truthfulness.” always are almost “the waves document concept recurrently ex That basic than less high, the winds never mountain v. Mu pressed In Freedman cases. generally hurricane, peril of life and the Pa. tual Life Ins. impending.” hospital 81, 85, rec A.2d 135 A.L.R. 1249 emphasized the ele This court has often where there ords were held admissible ment of as the foundation trustworthiness present contemplative motive “no “regular ex business” In Re Fennerstein’s Cham falsification.” instance, ception. For United States pagne, 3 Wall. L.Ed. Cotter, Cir., 1932, 60 F.2d emphasized ingredient that “there court ad where certain bank records were held falsify.” was no In Poole v. motive missible, accuracy said Dicas, Bing., Eng.Rep. N.C. very records “is essential life of 1267, Tindal, J., said: “The clerk had C. spoke of "the business” [the bank’s] entry: no interest to make a false If bank probable ordinary correctness interest, he had it was rather make pointing out danger books" that “the entry; a true what is easier to state slight." mistake In United States false; process true than what Becker, Cir., 1933, trouble, implies invention in such a case party challenged, we said that “if of incurred; unnecessarily a false en fering prove the documents must try likely bring would be him into dis system prima re is such as facie grace employer. his Again, with the book cases, turn, liable.” These two relied entry open the made which was was upon Bonding Massachusetts & Insurance Co., office, to all the clerks the so that an Co. v. Pharmacal 2 Norwich entry exposed speedy if false be would to 1927, 934, in which we re 937 cases, discovery.” In other the absence of practice ferred to “are ac records that misrepresent a motive to is said to be “con cepted upon accurate the faith of admissibility. dition” of See Polina v. itself, self-consistency routine and of the 429-430; 411, Gray, 12 L.R. Ch.Div. Las of their contents.” 345, Co., sone v. Boston R. 66 N.H. L.& 903-906, 902, 525, and “principle 24 A. 17 L.R.A. a The same of circumstantial cited; there Malone L’Estrange, cases v. guarantee involving of trustworthiness” — Moore, Ir.Eq.R. 16. In Lord v. any vigorous the absence o’f motive to mis- 220, 208, requirement Me. virtually said represent inherent all the —is rule, to be that the entrant’s “was 'hearsay situation exceptions to the such as presumption as to exclude of such all private boundaries, declarations about any having misrepresent interest to family concerning statements records Gray, J., in Ken declarations, fact recorded.” And history, spontaneous and 1865, Mass., Doyle, Allen, 161, nedy v. dying refer to some declarations. We of says only there be “no them, that not must the authorities in a footnote. In misrepresent,” but also that interest to frequent reference is made to the non- entry must be made “before con controversy, likely of a existence to lead troversy question arisen.” has litigation in which the declarant has a to personal likely be interest that would to may engineer of be The statement negate degree unprejudiced fair of sin- a mariners, ot compared “protests" with the cerity.4 by them as a mat- which, although regular course duty Wigmore of summarized, and approvingly, ter business, on behalf inadmissible are following justifying their reasons the sev ships exceptions have al- the courts “(a) because eral of their rule: misrepresent” (Wig- interest "no nad below, consistent- have As shown more, cit., 1565) loe. and the § in con- statement attitude ly this same adhered must have been a made before contro 695. § struing Title U.S.C.A. versy commenced, or was imminent hearsay dec exception In the that by. it could not have been induced there boundaries, concerning larations Greenwich, 1934, Mentz Town v. have must declarant hold courts though a indicates three distinct mo Where the circumstances such related operate which statement would nat tives long sincere and to secure in accurate uttered, urally plan of falsifi degree probable and no run sufficient trust formed; where, though fairly (b) even cation be worthiness and make the statements itself, trustworthy: falsify present might (1) system desire to The habit and considerations, danger regularity such as such record with punish easy accuracy through and detection or fear calls the interest force; ment, entrant; probably purpose would counteract influence (c) on, by very statement was made under of habit in where-’ the be relied error, ertia, publicity prevent such conditions of casual inaccuracies occurred, probably if it had temptation to counteract possible * * * And, en (2) detected and corrected.” Since the misstatements particular “regular to those record business reference tries course of are, transactions, course of business” which memoranda an error mis-statement although he re justifiably admissible says, almost certain to be detected and the entrant; typical hearsay, case dealing writes:6 “In the sult with the he those made, systematically safely habitual entries mis-statements cannot all, ly systematic busi recording except com a course * * * experience prehensive plan nature dealings, ness of human falsification Baker, Accordingly, Scaife 118 Conn. A. 13 Ves. 514. existed, F. there Western N. 238; Land when statements C. litiga- Dewhurst, made, dispute likely provoke Robinson v. precise point “com tion “more F. is said that controversy” or less over 338. which means the statements refer” leads to mencement of exclusion, “arising state their then there is of that of facts on because too probability founded,” much claim declara that bias affected them period (Wigmore, 1483), of their tion must have been made ibid. hav- before been induced “when this fountain of existence of the by agitation.” controversy. Frey’s Estate, turgid Pace In rendered re McAden, 191 N.C. Iowa 599. In Plant 131 S.E. N.W. dying declarations, Taylor, 7 H. N. the case & it was said: solemnity approaching “No case death said has been cited person “from of a free the all to mis declaration deceased obvi- mind motives ously ibid., Wigmore, Spon state.” has been interest received.” 1438. § for course, taneous declarations are Of “the mere circumstance admitted because that entry per- made “when the was made with a view considerations of self-inter to * * * petuating brought fully est have could not been to should not by entry; bear reasoned exclude the reflection.” otherwise few such Ibid. en- § ” * * * tries 1747. would be receivable. The “utterance must have been strong before misrepresent.” absence of a there has been the to time to contrive motive deceive and appear. Ibid., cit., Wigmore, must loc. § 1750. As one 1484. § it, put 209, 220, is, they Bowman, In Stein v. court has the test Pet. “Were talking through party, L.Ed. the facts the court said that such the or party talking the declarations to about be admissible the facts?” must time, Pedro, made “at a Cromeenes San under L. & circumstanc- A. S. L. Co., person es, making 10, 11, R. Ann. when the Utah 109 P. them could misrepresent Cas.1912C, have motive to 307. the facts. * * * recently extremely danger- We It said that this would be same limita- applicable hearsay tion ous to to a receive statement made declarations in ev- by patient physician. idence, respecting any matter, Meaney a to a after the controversy commenced. This F.2d by party, ingenious A.L.R. enable a contrivances, is It encountered an as in- tegral part exception permitting to manufacture evidence to sustain his family the cause.” admission This limitation to the declarations or entries person history exception, Wigmore relating family (loc. deceased writes Mstory (pedigree). cit., entirely 2483), analogy § “is in Such a or declaration entry (says Wigmore, exceptions, 1482), the limitations in ibid. § to be admissible, long must have so been rule enforced in made when special present form, “no passion” reason bias put limitation has a legitimate place.” existed—as Lord it, Eldon when the posi- declarant’s mind stood “in an even cit., Loc. § 1422. tion, any temptation without to exceed or fall short of the cit., truth.” Whitelocke Loc. § 1522. this, (3) If, that, in addition to entrant suggesting changing absent a rule, duty makes the record under a em the common law a statement as such ployer superior, the ad admissible, or other there is engineer’s loaded as disgrace risk ditional of censure and misrepresent is with motives the facts. superior, in case of inaccuracies —a then, question, is whether evi- powerful on motive whole the most dence,, law, plainly barred at common palpable and most the three.” legisla- was 'made admissible federal tion, U.S.C.A., 69S, e., then, i. Title en- clear the words § “regular business,” acted in ad- in 1936.8 This statute renders course of as used “any record, decisions, always writing missible whether have included con entry form an in book or cept other- be such circumstances must wise, ány made as a memorandum or record safeguard against toas crude bias act, any transaction, occurrence, or part persons or of the records event,” any judge if the trial shall find “that supply against information regular great have was course the records lik-dihood that business, course persons and that it was interested fabricated litigation make primary purpose use in such such memoran- business to The mere dum prospect which at the time. or record.” such were made with fact entries words, “regular course not perpetuating view evidence is suffi business,” employed legisla twice to exclude them. show such bias as cient to tion, colloquial are words but are not require beyond question But it is art, history, and, long words of reports in a business that ment observed, ju we have often theretofore which, by regularly very their be made dicially interpreted. Consequently, biased, nature, likely highly to be did meaning given should be when that settled reports meaning within bring incorporated absent a con art, “regular course of the words expressed trary legislative clearly intention That railroad business.” defendant legislative history. in the statute or in its regulation requiring its em here had a Angeles In Case v. Los Lumber ac when actors ployees, 1, 7, 84 L.Ed. 308 U.S. 60 S.Ct. reports cidents, regularly make of such Supreme “The Court said: words probable litigation, did accidents for use 77B, equitable’ used in sub. ‘fair reports § within include such suffice art business,” 207(f)] f are words U.S.C.A. § ot as those “regular [11 prior ac- which advent 77B had always been understood words quired judicial in- meaning through fixed lawyers “regularity” judges. For terpretations equity in the field of receiv- exception justifies is the kind Hence, possible ership reorganizations. as in case “counteract tends to phrases mis-statements,” Wigmore used that sec- of other terms temptation to phrase tion, Duparquet & Moneuse Co. Huot 'has noted.7 It follows 412, Evans, 216, 56 S.Ct. L.Ed. never cov U.S. “regular course business” adhere to the familiar rule that practice of records regular ered a employed act which supplying in in an purpose where words are with n a suit, meaning probable those the time a well known law when had at highly every law, they with in that unless by persons are used sense made (cid:127)records are contrary. requires mis-statements.” Keck “possible temptation the context to States, or even 19 S. holding 172 U.S. found no case United "We have Wigmore, regular supra, quotation, from to of such business course See or at make such memorandum record § 1522. Admissibility. any act, occurrence, transaction, In court of such time “§ any court and or a States event or within reasonable time of the United any by Congress, writ- Act All circumstances thereafter. making established writing ing record, record, in the of an whether form or or includ- otherwise, ing entry personal by knowledge as in a book or made a lack of the en- any act, may maker, (cid:127)memorandum or record trans- trant or to be shown affect occurrence, event, .-aetion, weight, or shall be ad- its admissibility. shall not its affect act, evidence of said transac- missible The term ‘business’ shall -tion, occurrence, event, ap- business, profession, occupation, if shall it include -pear every calling (June 20, it was made and 1936, kind. any business, (cid:127) 1561.)” and it c. § 49 Stat 254,258, 43 might Ct. L.Ed. 505.” In Keck v. Unit the words any mean record seem to States, paper by ed the court “These conclu or prepared employee said:. an in ac- arising sions from a consideration of cordance with a rule established in that yet employer. text of statute are rendered clearer according business to the words, his by taking legal jargon lawyers mean into view definite judges those ing ‘smuggling.’ evidence, That term of the word discussions of have import always writings way had a meant well-understood at common in such a law, particularized safeguards the absence of a to afford against some significance in the existence of exceptionally strong definition of its creating bias it, or powerful misrepresent. resort be had com motive to purpose arriving mon law for the meaning Those words came into the statute Swearingen v. of the word. history. saturated with They connote—to U.S. S.Ct. Wigmore’s recall (1) regu a comments16— L.Ed. United States [40 larity serving “to possible counteract the Wong Kim Ark. 169 U.S. S.Ct. temptation misstatements”; (2) a situ ,”9 L.Ed. 890] [42 ation which would lead -to detection of falsification, context, given In a words often come so that “can mis-statements safely made”; not meaning relationship, a which do not in in he (3) have a “apostles” a writing other contexts. What when employee mean an surprise admiralty duty employer, an under a rule10 would a theol to his which in mathematician, ogian. pi To a a cludes “risk disgrace” not of censure and letter, would, therefore, more F. a for Greek railroad than O. B. mis-statements. company require unequivocal expressions a chance selection English alphabet. history yield legislative “Unearned” statute its trade, words, interpretation history, in the insurance as used connec of those defying their premiums, not indicate what tion with does would render admissible a mean it does to a man on the street.11 memorandum made in circumstances phrase strongest “divided into watches” in a Sea disclose the likelihood of the Act, 673, “is,” says misrepresent existence of men’s U.S.C.A. a motive to Supreme given Court, probability “to the mean least from the censure acquired, language employer duty it, imposed had who to make facts, Act usages of the trade which the misdescribes the memorandum ” * * * commop and not “the favor him. relates ordinary meaning of words.”12 To .the The statute was a so-called “Model1 drinks, beer the manufacturers Act,” proposed adoption by for uniform beverage although it is carbonated govern the several states the federal party “Signed chemist.13 New ment. York enacted it in 1928 In with agent” phrase is a also, charged or his year, long Congress the next before off, easily when history shake cannot it, enacted in New York statute was “equi words employed in statute.14 terpreted closely- case New York in a virginally receivership” go into ty do resembling the instant case and similar- Each statute.15 corporate reorganization cited; cases v. New York above Needle and courts peculiar jargon has its trade Corp., 1929, Railways App.Div. way in jargon when it finds rely on that 547, 549, policeman, in the course N.Y.S. of his dealing with that trade. to a statute regular duties, report made a busi- “regular course of railway And so street he had not accident. As or memoran- accident, applied report to records ness” witnessed the layman, others,. To a an evidence statute. in based on the statements of da oral 444, 250 1187; Co., U.S. L.Ed. 313. 12 O’Hara 9 Cir., 114 See Massachusetts See U.S. 25 L.Ed. Westerlund v. also The General Rule F. 645, F.2d 519, 198; Luckenbach 366, 39 S.Ct. F. Abbotsford, 304, Ass’n v. United 599, 523, 46 S.Ct. Thorn v. Black 605. certiorari of this court. 494, S. Bear 98 157, S. Browne, 63 L.Ed. U.S. Co., 158, Mining denied 440, 8 Evans, supra. 149 U.S. 288, walader v. Corp., 523. ^[13] v.. 15 16 Wigmore, Duparquet Huot & Moneuse Co. Thorn v. See Civil Carter 38 L.Ed. 9 Cir., 346, Practice Zeh, v. Browne, 13 S.Ct. 97 115; Liquid 151 U.S. F.2d 1. Act, Hedden v. 1522, quoted 891, § 374-a. Carbonic Pacific 171, See 37 L.Ed. 763. also 14 Richard, F. above.. S.Ct. Cad 519, courts, find said, York if we that “of the tations of the New including, as the court ruling motorman, who, highly of be- them unreasonable. But instead interested think, case, be fol- to be with- in the Needle we placed be presumed as to reasonable, entirely most helping make lowed absent falsify in to motive to out a record, persuasive give arguments. every contrary had reason that report.” It was held biased and false had of the Model Act The draftsmen report policeman’s was not admissible it, not, Congress indicated before enacted under the Act. Model ad- that meant that it should render gave Needle The court case excluded missible memoranda such that rejection that ground another for its case, e., i. those Needle report upon based statements was "regularity” where circumstances n others who un- than motorman possible safeguards lacked all of reliabil- po- duty der them and that the to make no ity. sponsors that draftsmen and hearsay statement was founded liceman’s by (headed Act consisted of a Committee upon upon the of others and not appointed Morgan) Professor M. E. aspect knowledge. that With own Legal Com- Research Committee it concerned, for we decision are Fund, reported find- monwealth which its re- bearing has here. herein we When volume, ings and recommendations mean, case, unless we fer Needle Proposals The Law of Evidence: Some otherwise, part the decision state Reform, published in 1927. It was Its be- rejecting motorman’s statement problem sought there said that presence of that same motive cause proposed solved statute was “the by the rejection of the misstate which caused the inducing give evi- need of courts to n conductor’s statement in Conner Seattle upon credit to the books which the dential Ry. supra, cases. and similar R. S.& mercantile industrial world relies chief of business.” And the the conduct years aft It was in seven criticism made the Commonwealth decision, Congress er the Needle existing common law Committee change in its adopted Model Act. No that, was each clerk or book- rule because in was made to verbiage suggested or keeper transaction must involved in from dicate an intention deviate for, any break called or accounted interpretation. New York reasonable very typical business chain of elaborate has general that where statute rule thus, practically, system ren- was fatal and juris in another previously enacted many evidence inadmissible dered such be diction, interpretations its courts criticism, support of this cases. jurisdiction in another fore its enactment report chain out in its Committee sets because the to be followed house, large business show- adopted with of events presumed to be “generally many persons, them ing that scores of received.” which construction 129, unidentifiable, at various work on an order Holmes, 192 U.S. J., Appel, James sold until stages” And the time from 48 L.Ed. 377.18 24 S.Ct. report jurisdic reading is billed. One customer adopted constructions therefore, rea- might, Committee where the of the peculiarly persuasive tions are pur- perhaps chief sonably assume Un designed to be “uniform.” statute is necessity McGinty, the desire to avoid pose 212 Mass. Company v. ion Trust At such a chain. Ann.Cas.1913C, proving link of each 205, 98 N.E. surely think that any rate, he would Smedal, Wis. 203 Hansen, Forgan v. designed make admiss- the statute was Stewart N.W. documents, strongly motivated like 340. Of ible 959, 44 A.L.R. 218 P. Utah here, statutory engineer’s involved statement rule, rules of like all sponsors, not, again statute’s (quoting from the doWe construction, inflexible. is not way resemble in no remote ap Morgan al.) et therefore, necessarily feel bound "upon the mer- interpre- record the kind of all the ply, the federal Cranch, New Oxley, a federal statute borrowed to Tucker v. See also Liability Employers York; Newton v. 29; 42, 34, M. & M. Henrietta 3 L.Ed. Cir., 164, 130, Corp., 107 F.2d 123, Gardner, Assurance 19 S. 173 U.S. Co. v. Birnbaum v. 167; Metropolitan 637; 327, R. L.Ed. Ct. 887, 1334, 885, 126 A.L.R. 1207. Cf. 107 F.2d Moore, S.Ct. v. 121 U.S. Co. Lecato, 1022; 1065. 59 C.J. States United 694, 30 L.Ed. with reference 29 F.2d cantile relies and industrial world business.” any Nor is there anything in subsequent conduct of business.” any comments of members of that showing- any they Committee that had Certainly reading lawyer no the statute such intention. suppose that its intended would draftsmen hearsay which it ren- that statements And impute we cannot such an unusual attended, by ders admissible Congress. intention to If that was what nothing guard against whatever mis- to Congress do, meant to “it would have been that statements. He must assume easy say so.”19 It would have been still phrase, business,” “regular of was course easier to altogether have omitted the his- purpose. inserted —and twice —with some toric words. We must assume that Con- rule, hearsay Acquainted with must he gress used them deliberately recogni- with purpose assume that was to retain some tion history. of their And we must in- least of the assurances which that terpret them. We right have no to be always symbolized. in- But to phrase generous people’s with other words. terpret in evidence the it so as admit in describing the instru- engineer’s statement here would be ments admissible, says it renders strip every phrase vestige that of of its they may that “any writing” consist of can be established connotation. For there whether “in the entry form of an in a slight against any guaranty no shadow of book or otherwise.” This was in line with “temptation to misstate” if the words purpose exception: to broaden the regular course to memoranda “made Those possible words serve to remove reports acci- of business” refer to such of doubts as writing, to the form of reports required employers of dents — recognize course we give and will full employees participants who are in the ac- effect say to that since, intention. We inevitably, at once in- almost cidents — engineer’s that statement was in- employees will be clination those merely admissible because it was not an describe so as make such accounts entry merely appear employees their em- a book or that those because it was ployer But, otherwise informal were not at fault. character. form, whatever their requires the statute sponsors knew No one better than regular memoranda be in “the course Wigmore Act —men like Model And ap- business.” the same comments Morgan significance traditional —the ply statutory provision, “The term “regular business.” can course of There business, profession, ‘business’ shall include was doubt their intention be no occupation, and calling every kind,” exception widen the rule re- provision that, and to the “All other cir- equally lating writings. But it is cumstances of such writing they zuithout did intend to doubt record, including personal lack of exception and to substitute abolish another, knowledge by maker, may entrant or meaning giving phrase a weight, they shown to affect its shall opposite precisely they to that well admissibility.” They were, not affect its recognized meaning. knew If also, purpose in accord with the intention, broad- surely had their exception. ening disclose so, language either in the have said purpose to exterminate the inherent Report, or in their in order to Act itself exception, e., character i. to remove lawyers misleading legis- avoid safeguards to enact that statute. There all theretofore connoted latures asked “regular Report business.” nothing whatever in the the in- case, add, faintly even stant there was no lack Commonwealth Committee personal knowledge intimating any purpose completely' the maker to do of statement, away engineer, every one of traditional the rail- safeguards undeniably against a motive to misstate in road business within the scope. statutory made in “the course of statements 19 See, Farrington 770; Chase, g., Tennessee, e. 29 L.Ed. United States v. 679, 689, 558; 255, 259, 10 95 U.S. 24 L.Ed. Union 135 U.S. 117; S.Ct. 34 L.Ed. Matthews, C.C., Koch, Nat’l Bank v. 98 U.S. United States v. 40 F. 130; Harrington 250, 252, 25 L.Ed. Baltimore 5 L.R.A. & P. R. Grant, Herrick, 468, 471; R. Co. U.S. 64 F. 25 L. Central Vicksburg, Com’r, Cir., Ed. S. & P. R. Real Estate Co. v. R. Co. v. Dennis, 116 U.S. 6 S.Ct.

987 many persons policy who niggardly giving There are in effect new to a hearsay merely be rule should set because believe that forth a statute itself, But, right. wiped Perhaps legislature carelessly expressed out.20 are has embodying lim v. interpreting by Holmes, J., a statute observed As Johnson 32, 30, reform, 1908, States, not allow ited we must amount United 1 163 F. exten personal preferences Legislature for a L.R.A.,N.S., our more 18 “The 1194: is policy It govern power our decision. sive reform to has to what decide Congress be, in to it intimated our function find out what has law shall go go will, indirectly, did not or want to will should If it tended. however * * * not desirable, obeyed. are is recognized think It far as we be to re-shaping legislation adequate justified discharge duty not an course, personal there say: you wishes. Of are driv suit our to We what courts see always it, be always will you there at, been and have not said should judicial legislation.21 But Mr. go as before.” therefore we shall “interstitial,” case, called it.22 Cardozo, Holmes citing the cautious — Justice Johnson trials, is still respect jury Towing there With said in Van Beeck Sabine v. 456, judicial 452, innovations.23 L. 351, 342, room for some However, 300 U.S. 57 S.Ct. the hear legal 685, rules —and when uncertain some Ed. “There are times consistency wrought well established say one—are too rule is to be into words are sub modify them permit judiciary policy which is unity legislative with a con Holmes said stantially. law, What generative new itself a source of “A common-law pertinent: is system.”25 sideration impulse legal transmitted the doctrine say, T think judge not could courts not mean that But that does non historical a bit of of consideration something free read into a my not enforce and shall driving, sense legislature not which the at ” 24 peculiarly remark And court.’ objective limited in The has acted Congress apposite when driving, is made clear hearsay was in fact Congress changes in the specific troduce rule; Judiciary Senate Com spe Report take such judges should out, reporting with recommendations li mittee them a giving action legislative cific field, 28 U.S. which became passage, the bill large in legislate at cense excep- Report (with the 695.25a The C.A. say that courts § This is lished sionary Evidence Ann.Cas.1917E, L.Rev. ry.” For some 1. ventional Ct. trust with stemmed system. enced particular, solely 302; cle, ed. There Jensen, 1881) 295. Holmes, J., Of. Hearsay Rule, The courts parts Morgan, much of in 1873. Thayer, so-called the evidence Rules (1937) 247, 61 L.Ed. Maine, from other older Theory thesis (1898) 244 U.S. today of the law he have been rule and capacity A he concedes that The fact view, grants Village in Southern jury “the “second-hand” Evidence, 47. Preliminary is a ’ is addressed dispute Jury sources than the 255, 258; Evidence, its corollaries half-truth. see Wash.L.Rev. system cf. Morgan law of evidence” governing hearsay, L.R.A.1918C, reprint “that Communities consciously Maine, and The Exclu the tribunal Gray, juries 4 Un. of Chi. as to whether Treatise on and a Pacific maintains first The Na- evidence. the con Morgan, loc. And, framing to deal (1937) derive influ jury pub- arti- mis (4th cit., Co. ju S. v. R. Ct. pra Common Harv.L.Rev.(1936) S.Ct. istrative 1917E. Law cratic 310, Ed. 1005. Thayer, Clark, Dicey, pra. 10, 103, ture Report (1942); The Nature of The ed. Southern Pacific ^[22] 25a Hutcheson, quoted 463, The Johnson case has Ex Southern Pacific [244 1914) 361-398, 40 S.Ct. 1086, 74th and Sources of Law F. (1922) Society, The Law and No. 900]. parte Peterson, 113, C., In re loc. cit. Justice Law in U.S. 83 L.Ed. Congress, L.R.A.1918C, Function of Law in a Demo 306 U.S. L.Ed. 122 note 146-149; 543, Barnett, 205, approval Opinion and The Un. April 24, 788; Judicial Process 64 L.Ed. 919. 318, U.S. 13. 381, 2d 483-484; Cardozo, Co. Co. of Chi.L.Rev. Dickinson, 253 U.S. 22, S.Ct. in United States Keifer & 219, 319, Session, 391, 451, also been cf. Supremacy (1900) 200 note England (2d Jensen, Jensen, 235, Stone, 531, 327, note Aan.Cas. Admin Senate Keifer (1921) 61 S. 61 L. 4, cited 331; 222; 23; su su- bookkeeper entry tions of a few who recommendations for unim- made the could iden- portant changes tify the employed verbal in draft of it. the the Since bank book- Act) entirely keepers, by Model letter of a and entries were consists the book- macle Attorney machines, from keeping impossible. the General the Chair- this was man of the a memorandum and The United Ap- Committee States Circuit Courts of peals Fourth, referred letter. Second, to and enclosed with that the and Seventh for Circuits, courts, As are that Eighth bound to infer the Commit- many and district 69S, enacting Congress, courts, tee and in relied as well as a the number State of memorandum, that their on letter that recognized and have necessity modify- the for significant. letter contents reads ing adopted the rule and the doctrine have as follows: that in order to it in evi- make admissible dence, it is en- to show the that developments “Modern have rendered ob- sufficient try regular is contained in entries a book governing solete the common-law rule the of establishment, maintained in the without admissibility types certain of documen- of producing particular person the who made tary application Yet at evidence.- times the and him entry having it. Oiv- identify miscarriage has resulted in rule courts, ing to the some Federal way justice in arid has stood a suc- failure of however, rule, legis- adopt the modern prosecution cessful of meritorious criminal appears necessary lation uni- to be to secure requires cases. The old common-law rule matter, formity keep in and to by that every entry book be identified de- rules line evidence in with modern person exceedingly it. making This is dif- velopments. to ac- I enclose a bill ficult, impossible, an if not in case of draft of complish the and purpose, above-mentioned employing large, bookkeeping institution glad you shall will introduce and staff, particularly when the entries are your support. I lend it also a mem- enclose by made machine. In recent criminal orandum, January discuss- dated prevented case the Government from questions de- greater involved in ruling making prima-facie by case out a tail.” banks, in entries in the books of made business, regular course of memorandum, printed were in full in That specific admissible in evidence unless the Report,25b and cites Committee’s Senate reads, part, legislation follows: 25b reason for bookkeeping subject appears highly “Modern business desirable. inadequate methods have rendered in- Government a number “The impossible application handicapped pros- old common- has stances required every entry law rule winch book ecution of court criminal cases where the by making person recognize it. rule. identified declined to the modified Many large institutions, example, financial as well case For recent criminal concerns, as industrial 'and commercial Court tried the United States District Pennsylvania, use loose-leaf books accounts for Middle District by typewriting Johnson, entries are made and tab- M. Gov- United States D. ulating places prevented machines. in which ernment was out operator by more prima-facie ruling than one machine are em- that en- ease ployed, generally impossible regu- it is for tries in books of a bank made operator identify one entries made lar were business not admissi- him, especially evidence, specific after a considerable time ble in keeper book- unless the elapsed entry. entry identify from the date of the who made could generally impossible “The Federal courts it. This was in view recognized necessity modifying employed fact book- bank adopted keepers, the rule and have the doctrine and since the entries were bookkeeping machines, to show that the en- sufficient book- one try keeper is'*contavned in a book en- could recall which entries were of establishment, * * * tries maintained in the him In United States producing particular person without Cotter, 689-693, entry, having who tracing made the purpose him Government for the identify Ap- it. The proceeds Circuit Courts of to the defendant and another the peals Second, Fourth, sold, Seventh of certain shares of stock offered in Eighth adopted deposit slips Circuits have evidence their and the sheets modern rule. While ledgers recording in counts, bank their ac- modification of adopted by common-law rule has been to which the defendant unsuc- most courts, cessfully objected the Federal grounds as well as on the many incompetent nevertheless there and immaterial. are some courts it, Appeals that do not The Circuit Court the Sec- follow gen- now courts modern rule this and the decisions of quotes from earlier followed many courts and the Federal courts, regular erally by relaxing “the been has only, respect courts to which exception State in one of business” reference system e., made.” regular there is i. that where entries, system is such and the of of apparent the intention that It is accuracy,” there “likely to ensure be therefore, and, of Attorney the General — the evidence necessity introducing is no of Congress and of Senate Committee the cases, each of entrants. In those of the theirs— explanation as adopted which essential condition the court said that an Federal all the bring of was to the decisions hearsay is the admission of such of the pre “modern” the into courts line guaranty of trustworthi- “circumstantial the and court statutory of this decisions by accuracy consisting the ensured ness” Fourth, Appeals for the Circuit Courts system of entries. regular the nature of the is no Eighth There and Circuits. Seventh going any intention of indication of slight this memorandum stated: “While The legislation beyond of the purpose the far the common-law rule modification of and Attorney courts, by General explained the adopted most the Federal by “guarantee States, by many to remove the essentials neverthe- as well recog had been which do not of trustworthiness” less there are some courts fol- in their when by on courts legislation nized this and other it, that low and reason for * * * “modern the they decisions had enunciated subject highly desirable appears the intention, sure de- the rule.”25c Had such been is herewith A bill submitted draft of Report would ly in the Federal Senate Committee signed make the uniform Circuit, holding tabulations that the evidence fendant and certain ond admissible, also admitted. law were said: therefrom which Respecting offered ‘The documents; changed rec- of these admission has much pro- Appeals always necessary ords, longer the Circuit Court is Judge through Circuit, speaking original and make a entrants Second duce the complete proof. Hand, dis- ‘The We Learned said: chain direct situation records, question in Massachusetts familiar of voluminous cussed the Bonding one last large daily aof routine Ins.] Norwich Pharma- at the time in the [& Co. v. by pro- business, Co., Cir.], entrants 18 F.2d where mercantile [2 cal question is in what cases we to which the en- duced. The said that extent necessary proof produced upon supplement depended it is must be trants way accessibility, in which the business carried how far their their testimony and made, by substantially verify the testimo- are a/nd entries * ** bank, ny entrants themselves. document. accuracy In of a the ease affairs, mercan- of modern whose records essential routine very industrial, business, tile, is conducted life of its and financial and where, labor that division of because of multitude with so extreme proved transactions, first cannot be at the entrants can do no more transactions persons, system say the concurrence of than hand without describe and they it, necessary go can no more of whom contribute followed it is not each part prove ledgers slight part, de- and that further than than pendent memory by system kept likely of the event. on his to insure accura- alone, cy, Records, appear are ade- and records their practice quate repository, face; ac- and are in on their the other side must dis- upon cepted as the faith of the accurate credit them. So far as ex- self-consistency itself, what routine tension of Bonding we said Massachusetts of their contents.’ Ins.] Norwich Pharma- Co. v. [& Co., step; prob- are Fork “To same effect Cub Coal cal take Co., ordinary Cir., Fairmont Glass able Co. v. F. correctness of bank books outweighs any protection & 2d Paul Fire Marine Insur far side, St. to the other Co., emptying ance Co. v. American Food afforded Products the bank of 733-737; Capone Cir., 21 F.2d much of its clerical system force. Unless the kept under F.2d is de- Becker, fective, danger slight A.L.R. United States v. mistake is ” * * * putative event, F.2d 1007 corrobora- Emphasis inappreciable. this memo the Attor- tion the entrants ’* * * ney Bonding letter has General’s been added. Massachusetts & language of the Act Ins. Co. Norwich Pharmacal indicated 25c enlarge 934, 937, objection an intention somewhat ways rule,” previously “modern made to admission in evidence of a earliej stamp opinion, kept account our clerks of noted the de- utory provision ut preserved so intimated and not personal least lack of knowledge ter concerning silence it. of the “entrant or maker” of the record shall not affect its admissibility) previously As shown the cases we loses some of its force when it is noted cited,26 questioned the no one would have mistakenly A. L. I. commentator decision, correctness ab Needle policeman’s report states that was over-ruling sent have it. We upon “based by statements made himto case, any jurisdiction discovered no persons who claimed to have seen the ac -enacted, where Model Act has been cident,” Wigmore and that makes a similar holding intimating that the doctrine error in stating decision, the facts.28 The expressed in case been ex the Needle has moreover, by court, was a unanimous in punged by go further: that statute. We cluding Judge (now Chief Judge) Leh We construing know no decision that man, previously had who indicated that the anyone by statute and of no comments liberally regular entry exception ought to be the effect that the Model Act ad renders nstrued,29 Judge (later Chief and Mr. reports by (under employees regu co missible Justice) Cardozo, only not who had writ employers requiring lations of their such vein,30 ten in a similar but was also mem reports) of accidents those em Legal ber Research Committee of ployees participants. have been active It Fund, sponsored Commonwealth is suggested Morgan Wigmore the Model Act. have said that it intended such was reports But we should be admissible. have There no is occasion for here to us con- been to find that either them unable has sider Indeed, the merits of the Lutz decision. comments, published e., ever i. may, arguendo, assume it to they prob ever discussed have wrong. have been For it has bearing no us, lem which here is before a case whatever on the case bar. And if it statute, arising under the either vis vis thought wrong,31 it clearly distin- the Needle case or otherwise. guishable case, from the Needle supra, It case, is true that another New York report where the was excluded because of Lutz, N.Y. 170 N.E. probable the motorman’s though bias even Johnson was, by (a) course, has been these criticized comm he familiar with the policeman’s report facts, entators.27 There (b) probably he duty was under a accident, based the unsworn on state state the facts police- investigating bystanders, excluded, man, himto (c) policeman, ments was acting official- Act, Model ly, not admissible under the was disinterested. The Needle case was showing, where there no was court decided before Appeals the Court of de- said, “whether saw the accident Lutz, and cided and there can be Johnson * * * knew, what stat

stated no doubt that the court which decided the persons case, had ed what some other told excluding Needle policeman’s re- (as err port, them.” The criticism of case ready even more to exclude scope narrowing the of the stat- oneously company’s document here. It would way 779; 48 N.J.L. B Rule A. Ry. Co., supra; under no shown similar written (2) opinions edge cussed who one L. bases personal knowledge Wigmore, Since See merely North Hudson Co. I. Code of infra. facts, himself hearsay report duty especially, construing the court which the (presumably facts, this: to make report Conner loc. App.Div. 257, has no A. had Bloom v. 276. Evidence, cit., treated any personal for cases bystanders it, it, ruling knowledge error Seattle, where Ry. which are dis- 1530a, the facts and Morgan). the Lutz case statement of Union in that comment on Co. (1) A involving & S. R. admit a note N.Y.S. who knowl- A has Rail May, case not' 1; Rev. on MacKenzie Bros. (1931) told him Sadjak knowledge L.Rev. approval them to course of B’s facts O’s N.Y.U.L.Q. Legal Topics, Model Act Technical business. New York It Mich. approved (1930) 3 A.2d has been cited with (1926) 508, v. Parker-Wolverine B in the by by (3) Wigmore, 274 N.W. Rules of business, O who (1930) who, has been City facts Vol. Co., 1938, several commentators. 518. Bar Ass’n Lectures loc. jurisdictions 3, 81, (4) Evidence, cf. 25 Ill.L.Rev. states what was adopted; course of B’s or ; cit., had did 43 Harv.L. approval 125 Conn. Co., 1937, Borucki v. § 1520. cited with not state personal 26 Col. regular where nature, motivations given dripping reasons do so not because Accordingly, we decide misrepresent. by Wigmore case, criticized Lutz and more: the existence Morgan, but because of misrepresent on strong motive to of that permit the intro- statute does ¡the motorman, part of interested statement duction in evidence of which, led de- prior had a written memorandum form reports con- excluding accident cisions accident, report the state- concerning an employees in similar cir- or similar ductors prepared ment accident has after cumstances.32 occurred, person where makes the who the time report memorandum or knows at discover, has Morgan can so far as we likely, he is in a very Wig- Needle case.33 criticized the never accident, probable relating law suit briefly in a footnote has done so more par- a charged wrongdoing be police injury; a blot- "Highway thus:34 accident, ticipant so that he al- report police of- containing a ter certain, most when the memoran- making took not see the affair but who did ficer report, dum to be by sharply ar- persons on various affected the statement of exculpate a desire to and to re- excluded, following riving, himself Johnson employer liability. lieve or his ;35 contrary ex- again directly himself Lutz It clear press words” of statute. engineer’s We do not hold that state- description of the facts of the ment is inadmissible under the statute Wigmore dealt with them Needle case that (1) prepared merely because it was they those the same as in the were (2) perpetuate evidence or was aft- entirely the He Lutz case. overlooked imminent,36 (3) litigation er was. was sharp- differentiating Needle crucial entry fact — formal or an a document in a among “the various from Lutz —that ly book. highly “in- persons” in Needle was the court, both The decisions of before every “had rea- motorman” who terested enacted, since 695 was con- § report.” give biased and false a son sistently high-lighted the absence of a opinion which on part of the That turns powerful necessary motive to misstate as Wigmore never facts has mentioned those factor to render admissible memoranda said, possibly criticized. It cannot or therefore, regular made in the course of business. regarded that he that as- kind, Our decisions when no stat- “contrary express pect the case as applicable, already ute we have was cited.37 difficult to Act. believe words” England Transporta- In Pressel New that, that distinguishing noted fac- had he Co., 2 tion 91 F.2d a case tor, he would have criticized decision. statute, arising under the New York Civil seen, as we have he has underscored For 374-a, Act, Practice before the federal § misrepresent” motive the absence of “a operative, statute was we sustained the part integral as an essential statement, rejecting lower court cit- exception. of business” “regular course ing the Lutz and Needle cases. Under Clearly every guarantees one those statute, 695, in Derby Hunter v. federal § trustworthiness, justifying, according to 970, 973, Foods, 2 hearsay, Wigmore, the admission of A.L.R. where death certificate circumstances, was absent proper coroner in the course of his official is absent here. Needle case admissible, duty held was we referred to mind, pointed all that in With we con and also out as not the statute admissible certificate would admissible the New strue which, very statement engineer’s statute, York courts under New York posed supra; supra; case. May, Lutz case The Needle Wigmore, The comments Conner v. supra. Code North Bloom v. Union do not loc. reached Seattle, Hudson Co. case cit., discuss the A. L. I. § New York’s R. 1530a, & S. decided before Railway Co., Ry. the Needle note 1. Ry. Co. v. high pro- Co., chusetts United States v. Pharmacal est within the gation Lutz case as there decided. States court; Even if United score, had Bonding & Mortimer, begun, be inadmissible. did States supra. memorandum, not, therefore, Becker, supra; were made after Ins. Cotter, Co. v. not, See United follow the merely F.2d otherwise Norwich Massa supra; liti- on Certainly citing nothing Civil Practice Act Scott v. decision in our § Empire Honor, App. Mortimer, Cir., 1941, Degree State States v. Div. 198 N.Y.S. cited F.2d 270 is 535. We also- inconsistent with Wigmore, part which is of his our decision here. There we held admis- § chapter admissibility charts, on the sible purporting of official to show defaults statements; says, payment taxes, he there that “an which had been prepared duty witness, official a prosecution exists make an accurate Kar- ** * statement, cher, special experienced who was an public ac- weighty usually countant, duty will suffice a mo assisted several aides of only tive whom to incite the officer to its fulfilment one in addition to Karcher took * * * It is the influence of the official stand. We held that those charts were duty, considered, broadly taken rendered inadmissible because all of testify, as the sufficient Karcher’s guaranty of trustworthi aides were not called to ness, especially justifying acceptance testimony the hear there as to the say manner in pre- statement.” Ulm v. Moore-Mc which the charts had been 492, pared. Lines, Cir., 1941, rejected Cormack argument 115 A.2d And we record, hospital marine on a form of were inadmissible under § merely Service, prepar- the United because States Health made in Public duty by ing ruling, executed in the trial. In so we doctor, said: “There are numerous cases attending an held was us to be testimony holding admissible of admissible. We 695 there discussed § supervising agent compiled statements from Wigmore’s criticisms of the Lutz case. according voluminous records a method Interpreting to Wigmore’s views of Model practicable once at offering reasonable Act, “objective, Wig- we said that guaranty accuracy, though even the su- lucidly away explains, more was to do of pervisor had not examined each record rulings with the technical which excluded After referring himself.” to Section ordinarily records used in business trans involving to of cases the use bank formally actions when not identified records, “Likewise, we say: went on to makers.” We referred to other New York accuracy is the an accountant’s however, (not decisions life mentioning the of business, but multitude of records can- case), Needle and added: “But whatever by any person not be checked one -alone. judicial should be the attitude toward this system And here the followed statute, we do not think the cited New merely accuracy, likely ap- to insure point York cases are on the immediate parently so, side, did since the other far issue here.”38 That decision was reaf records, discrediting actually from rehearing firmed on in Ulm v. Moore-Mc supported them. The in the trend courts Lines, Cir., 1941, Cormack 117 F.2d unmistakably to methods approval there we referred with to Boruc follow of ordinary validity, assuming the business in Co., ki MacKenzie Bros. Conn. discredited, daily accepted until records 3 A.2d where the Connecticut of There, in commercial routine.” as in all court, turn, quoted approval with apply- construing our other decisions the Lutz case. Reed v. Order of Unit ing we were careful to ascertain that § America, 2 ed Commercial Travelers of “regularity” “regular course of Cir., 1941, we held F.2d that a * * * business” was such to afford attending an doctor’s hospital record of accuracy” guaranty some “reasonable patient’s diagnosis of a condition was ad something to show an absence or 695. Coroners’ missible under records § vigorous misstate.40 motive to hospital be made for or records testimony, perpetuating then, purpose are, way but We in no to understood be are, ordinarily, persons initiating interpretations not made restrictive misrepresent. retracting impelling modifying motives to the statute or as or Appeals 389, 396, New York Court of Y. N.E.2d On the results, hospital records, reached similar indicate trustworthiness Note, see (1942). not stand in that way the Lutz case does 40 Mich.L.Rev. public of a liberal construction of the stat- He was a accountant nut party where, agent par- as in the case of medical rec- or an suit ute guarantees ty. ords, there are reasonable gome accuracy. See, People Kohlmeyer, suggestion has been made that 366, 369, N.E.2d N.Y. Meisel- our decision will render inadmissible en- Heights Hospital, ship’s log. man v. Crown 285 N. tries in a the 1936 Before markedly character, given different the favorable we have as has constructions recognized by which, previous it in the courts about our decisions. Our decision for century, here have admitted the ex- is no less liberal than the decisions of first while cluding the interpreting second. other state or federal courts For, repeat, we know Model Act. suggested It we that, is further if holding, even of no court case hold here the extent of motivation obviously intimating, an mo- great preclude adequate is so as to trust us tivated as that here before record worthiness, erecting we will unwork be admissible under that Act. standard, able questions it will involve urged if we ex- stress did, degree. Even that would lim- tent we have done here the traditional nothing new, the cases cited show exceptions rule— itation that, up now, decades and the courts e., strong to mis- i. the absence of a motive standard; apply have been able to such a represent reverting will to a notion Bonding in Massachusetts & Insurance —we century ago. went out favor Company Norwich Pharmacal Page page Wigmore’s treatise after 934, 937, ques 18 F.2d “The said: thus goes that that limitation is not to show tion, it, many ques as we like view judicial decisions ac- outmoded either evidence, competence tions as to Wigmore’s as to correct cording views degree, susceptible of ab and is court, years practice. ago, Two regulation.”41 solute here our decision Meaney leav raises no such we are not problem; A.L.R. held that narra- motive disqualifying extent of patient his tive statements large discre entrusting under “history” physician describing judge; respect tion with it to the trial judge admissible, the trial de- provided for, said, merely as we we decide consulting patient “the cides that this: The does not render admis for that physician treatment for em hearsay statement an sible made alone”; (per Judge Learned said we ployee standing under orders from admission, Hand) the warrant for the that employer reports to make of accidents circumstances, patient that such employee participant, which the where is a speak truth” because has “motive employer, purpose of the ob primary depend upon part “his will in treatment ordering circumstances, vious from the decisions, says.” what And our recent he in reports litigation them in those is to use 695, discussed, are in construing above § volving those accidents. with that view. accord this possible misunderstanding, avoid To rejection, Appellants sug suggested It not is also that should be added: did many years ago, disqualifying in- gest the rule or in this court court below subject Christie, repre testifying, presence terested Mr. witnesses that examination, destroyed this cross ration- Commis sentative of the State Utilities statements, interviewed, ale of sion, engineer exclusion of not when subject examination, an to cross when made with engineer’s endowed the statement misrepresent. proof strong motives to The The sole offer of official status.41a surely two of a as concerning kinds of evidence are trial this matter reads Gavit, statute, 759, 1055; Irwin 268 the rule seems to have 85 v. L.Ed. 897; were, generally, 161, 475, such not admissi 69 entries U.S. S.Ct. L.Ed. 45 ship. g., April See, Ingo Koch, Cir., 1942, 15, 127 ble on behalf of the e. v. 2 667, 6; dissenting opinion in Worrall v. Davis & Coke Coal D. F.2d note 557; C., 549, Kentucky, Valentine, 2 122 113 F. D. Chrestensen F. 1186; C., 504; 511, 500, 520, 148 F. 11 C.J. 2d in Valentine reversed C.J.S., Collision, Chrestensen, 920, —; 22 § 15 C.J. 902. S.Ct. 62 86 L.Ed. log in which Whether Cruz Co. v. National Rela circumstances Santa Labor usually 453, Board, 467, ad- entries are render them tions made U.S. S.Ct do not missible under here L.Ed. Kirschbaum v. Wall ing, 1, 1942, June consider. S.Ct. L. 41 Meaney States, Cf. Ed. —. 41a Chapter 539, 541, § F.2d A.L.R. 973. the General Supreme (Ter.Ed.) 1932, has often said Laws Court Massachusetts many legal provides inspector Depart mat- decisions turn on that an degree. See, g., “investigate ters of ment of Harrison Public shall e. Utilities may promptly Schaffner, upon 312 U.S. as be 61 S.Ct. accident 99á evi offer in to make follows: “The defendants admissible statement which engineer, report, who not an official exclusion dence the statement of the so that con- dead, a state proof is now stitutes reversible error. indicates busi regular ment taken in the course of Even if we to assume—con claims, after the ac ness defendant trary appellants to fact—that were in this happened. The statement cident public court of urging admission of a for signed and is marked engineer, report engineer’s urging that the ficer’s statement had J, identification under § Exhibit something status of a offer U.S.C.A. The defendants public report, official’s there would signed

(cid:127)proof also that this statement was difficulty: in added would have been business, any (sic) regular course of upon appellants brought cumbent to have such regular course of and that was the such matters the attention of the trial ap statement.” business to make such preserved court have their offer and to court, pellants’ appellants brief in this basis, proof, appeal. made on that alleged err- argument as théir state proof, provided Such offer of while statement, excluding follows: or in Procedure, by 43, rule Federal Rules Civil this statement defendants offered “The following (cf. 723c U.S.C.A. section provisions 28 U.S. evidence under Practice, 3076, 3077), Federal Moore’s proof offered C.A. Defendants § essential, absolutely if it is other not signed in the the statement was alleged entirely wise clear error what the regu and that was the course of business Meaney supra. is. v. United to make lar business Meaney case, where, signifi unlike the quotes brief then statement.” The § is not the excluded evidence ob cance of passed court “This continues: expected vious, not to reverse we could * * upon in several cases this section the exclusion possibility on the mere interpreting that statute. citing authorities States, 8 Gantz v. United was harmful. differentiate, any way, be 695 does § 498, 503; Herencia v. Guz F.2d by public reports officials tween made L. man, 31 S.Ct. U.S. Appellants have reports others. however, question, is not That Ed. 81. Mass referred to the in their briefs since, seen, us, appel as we have before requiring Utilities achusetts statute appeal, urged lants, merely on this reports to make to rail Commission admissible under the statement was accidents, presence Mr. nor to road effort whatever to and have representative, Christie, the Commission’s kite. tail tie it the official to engineer. with the the interview that, It intimated as the defendant of- is engineer’s prove that the state- fered to engineer’s plain that the state It is thus regular “signed the course of ment was by appellants been asserted ment has not that it the course of business and was as, report of a be, them or offered statement,” we make such must business to official, being admissible as public or as prove and appellants that offered to assume Moreover, do report.41b we part of such that the statement came proved have could was whether or not Mr. Christie know not a interpreted have statute we within the investigator. If he designated official engineer’s is it. record, statement from But was, know whether or not he we do not know, evidence, we report attending after this his official party to the ac- engineer was that the did, way If have he we interview. then, possible proof, was that No cident. reliance, any, if knowing placed what he strong peculiarly mo- have the he did given here the en upon the answers which, kind misrepresent tive Perhaps, report, if he it gineer. precludes its admission. hold, appellants’ damaging case. The ad missibility perhaps Finally, argued it is that the of an death unoffered testimony report does not un- engineer, official serve non-existent of the 41b railway, resulting or such an offi- a railroad introduced Had engineer’s operation report embodying thereof, which causes cial imperils any would, perhaps, person, statement, life of death the ease have report depart- and shall thereon ease where the much like Needle investigate ment, report policeman’s which shall cause embodied state- any resulting such accident in loss of interested motormari. But ment life, investigate any question other acci- is not us. this before dent.” available, should lib unusually induce an liberalize the extensively in rule But, interpretation eral if the statute. non-jury automatically cases without ex- the statement within the tending otherwise entirety came the liberalization in regardless it would admissible jury appellants’ cases.45 But construc- engineer correct, whether were still alive. tion judge 695 were the trial As says nothing the statute death as to as here would have had no such discretion. admission, a basis for that fact adds noth plaintiff’s 2. One of testified witnesses that, ing, at common law it is an inde unless on cross examination before this pendent ground for admission. As we statement, trial, given he had a written seen, suggestion is There it -not. plaintiff’s attorney. attorney, Defendant’s that the American Law Institute is this trial, at the asked for that statement. He year recommending the enactment of a that, judge was admonished the trial new Code of Evidence42 which —if Con it, admissible, if he it looked at would be gress adopt unquestion were to it —would plaintiff’s counsel then choose to ably engineer’s render admissible the state ruling, offer it. In view that defend- solely ment because he is dead.43 request, ant’s counsel withdrew his but proposed authority. gives courts no protest. assigned under Error as to apply It is for to construe and the exist us ruling. enactment, ing which would en one is, large yet, but a wish. request .vid The doctrine that such a makes Nor is it our function to write our into long a document admissible has a provisions proposed history.46 decisions the of that jurisdictions The courts of some Code, it; several of which are at variance rejected still others have it. adhere Moreover, Supreme Court decisions. The New York courts are in the latter effect, See, if the A. L. Code were in g., Rentz, I. would class. e. Smith v. 131 N.Y. give judge discretion to exclude trial 30 N.E. 15 L.R.A. 138. But Fed engineer’s Procedure, evidence such as the statement 43(a) eral Rules of Civil rule here, “if probative provides he finds that its value that “the rule which favors outweighed by the risk that its admis reception governs.” And * * * will create substantial dan doctrine, supporting sion ruling * * * jury.”44 ger misleading here, 0f approved, judge more than trial By simple provision, Lacombe, there would be fifty years Judge sitting ago, problem solved a bothersome to some of Circuit for the Southern Dis Court reformers, e., York, our evidence-law i. how to trict of New in Edison Electric in

dead. But ed at a time when personal formation any things, or a continuous judge finds that It 1938, hearsay declaration “forms Rules in the Code are not now able by Law Institute’s existing Code is revision ^[45] 43 ^[44] might reasonably Evidence, the courts. Institute Under Cf. statement made See A. It renders * * * i. part should he any section calling “law,” e., not, knowledge,” “supplied by L. I. the Act of a record ” Rule recognizes record” and English like most of the admissible, & Geo. A. work, the declarant shall Code, proceedings pointed 503(a) new L. is statement provides, frankly a “restatement” Evidence Act render I. supposed Rule 303. admissible legislation; purporting person 6, person “evidence of a proposed of in consists among out Ch. many is admissible maker American “Nothing who proposed when it interest 28, unavail- accepted if pend- to be have, other Code had, thus § 1. .mitted.” to affect the Act, deciding is one of Cf. to conceal or not its cases, go a when “whether which the court with justice that requirements the statement the Court tend “where the See appears inexpedient hearsay in evidence. Note, Wigmore, 1938, to establish.” respect Hearsay deciding the court jury admissibility, anticipated indicates fact which the statement whether 34 Ill.L.Rev. the factors the maker had It would seem that 34 Ill.L.Rev. may, statement proceedings weight the statement of this section thereto, misrepresent.” loc. whether and the notwithstanding little used in may in its may to allow the statement that, perhaps, cit., involving of the statement yet which, in consider it also from the if for in the interests of take into account also English to withhold such are with a discretion, a 2125. (1940) reading any provides note 2. generally, While that any dispute 974. England. Evidence incentive a factor in satisfied jury reason of the might reject jury, jury ad- is is Light Co., v. Lighting attorneys Co. United States or of- counsellors or as other 45 F. decis 59.47 on that ficers Relying depending upon of court number McCarthy ion,48 applied the doctrine was and amount of fees.”54 Doubtless such D.C.1939, F.Supp. Palmer, partial economic factor has ele- been . v in ment (affirmed grounds opposition this court in the on other the reform. But 721) despite here, interven situations, 113 F.2d in many it will adoption ing Rules of Civil of the Federal not do to pecuniary overstress ele- Procedure.49 aspects ment. In all of life re- there is change, sistance to sometimes rational endorsed That doctrine has never been It not. Court. There is as well Supreme sometimes a social United States inertia, physical as a grew up once a inertia. Social of what was when as a branch irrational, usually explicable solely law “that not principle” “fixed common motives; pecuniary as to party kept in the dark was to be terms often such opponent’s poss tenor of in his subsidiary. are absent motives explanations of components ession.”50 Several non-economic irrational It is said “principle” given. have been multiple.55 inertia are There is a theory “sporting feeling pleasure it stems from in identification forms; which a trial is justice,” according customary tl are are emotional ascertaining means of regarded as a disturbances innovations ace game calling adjustments: the true facts of the case for the new is new opposing counsel.51 of wits between dangerous, and “not to venture not to “principle” explanation is that the Independence Another lose." Our Declaration of to surrender expressed profound exper- the belief that was founded on truth: “All disclosure evidence before more one’s hath shewn that mankind are ience unscrupulous suffer, ad disposed trial would enable an while are suffer- evils able, counter-evidence.52 versary right to fabricate abolish- than to themselves explanations most efforts accus- These the forms to —like are, probably, explain non-economic vested habits tomed.” There are customs — only correct.53 together, partially prestige, alone or interests interests —vested example.56 illusions, Physiological “principle” has asserted it- A counter hostility psychological bases for self; pre-trial dis- liberal a movement Perhaps change suggested.57 gained more and developed and covery way dwelling on the anthropologist, The resistance to- momentum. more irrationally per- by Wigmore customs in which some ascribed has been movement an an- supplying sist,58 “the reduction of closest part fear that comes large originally traits,” which compass, in time and “Culture small swer: litigation to a utility, some- may have had emoluments expense, diminish the whether regardless men at law—whether endure times professional torical Discovery Hume Moore-McCormack Bank, among see Worrall Barnett, (1933) corded 17,660; Stewart, S.D.N.Y., 966. 54 Wigmore, Note, For Wigmore, For Sunderland, Wigmore, Cf. F.2d had been others, study motivations Fed.Cas.No.3,203; Wilkes the need Fed.Cas.No.17,109; Coote 113 549. F. criticism Before Davis Coal Cir., 124 F.2d Harv.L.Rev. loc. loc. loc. because of & Co. v. United 868. Scope questioned cit., of caution cit., recapturing cit., and Trial, Elliot, in § & note 38. § 1845. Cf. times and 1845; 2215. McCarthy case, Coke (1940) Lines, 2 Fed.Cas. in Waller Method Tale the unre past, difficulty, C.J. cf. In re any 1110. Kulu- States D.C. L.J. his No. see taigne’s soning, ated al con before The mind” Technological on kundis icy (National Thought; tion 39. (1926 ed.) States Philosophers A Cf. Cf. gee Philosophy in note 126 F.2d ; Rignano, McKeon, subject Shipping Chap. Barry, “equilibriatory Santayana, Essays Stern, Technological Forness, 9a. Stern, 198. him 16th Resources I. Trends in Resistances (1930) of “As The Selections (Hazlitt Co. v. loe. century The Winds cit., Scientific Montaigne Psychology 13th. If” tendency Amtorg Committee, note Innovations, and 60; Vaihinger, ed. From Mediev- National Pol- (transt. of Doctrine See Roger 1892) Habit of Corp., illumin- 1 Mon- of Rea of the 1925), Adop- 1937) Ba- Ch. present have bring social value. “In a certain to about settlements and to reduce Oceana,” Benedict,59 island in litigation.63 writes true, Whether that is we again currency know; “fish-hooks are have experiment do not in is now large gradually fish-hooks came to be the operation full yet but the are not returns sign great outward are wealth. Fish-hooks in. very nearly large therefore made as rate, any princi- At “fixed old [19'] They fish, will longer man. catch ple” keeping opponent in the dark proportion of course. In have lost as to the tenor of the one’s usefulness, they supremely their are cov- possession is append- now out of date. The societies, eted.” Benedict remarks that all ant question equally rule here in so. own,' equivalents including our have their as anachronistic as the on the buttons of such fish-hooks.60 coat; sleeve of legal a man’s special With reference to proposed important rule more than coat-sleeve rules, changes legal there should not be buttons. As it cannot reconciled neglected the devotion found in some mem liberality depositions as to and dis- professional any group bers of to the es covery Rules,64 contained in the new we professional tablished rituals. One need reject judge it. The should have dealt? go Seagle as far as does in underscor request with the as if it had arisen under professionalism the effects of Procedure, Federal Civil Rules of rule agree “law”61 many with him that law 26(b). yers oppose techniques legal innovations in Nevertheless, we do not reverse desirability, regard without to their social here for error in judge’s the trial rul support devise rationalizations to their ing, (1) for these reasons: The written prejudices.62 We hear them some of com could, most, statement of the witness plaining new Federal Rules of purposes impeach- have been used for Procedure, hospitality Civil with their ment. As that statement is not in the rec- discovery, pre-trial engendered have fraud us, impossible ord before it is perjury. us to The answer is that no one know whether it Unfortunately, contained remarks per knows. there were testimony contradicting the witness’ at the coaching jury of witnesses the old it would have served im- trial days; no data is available to show whether purposes. peaching If counsel wanted to those waxed waned in evils have these assign error, days. lawyers he should have asked the grumble, newer Some also us, judge lawyer certify trial that statement saying that it “unfair” part appeal. record on Since diligently prepared who case us, result, adversary not before obliged counsel the statement is if let for the reverse, scrutinize surely But the we were to be to send his data. reformers right replying that “unfairness” the case back on mere chance that the lawyer importance diligent statement contain matter to a is of no which would against improvement ju impeachment have led to such an much-needed materially jury’s ascertainment of the “facts” of witness as affect the dicial cases; public light- interest in such ascer verdict. A verdict should not be so Moreover, supporters ly paramount. (2) tainment is The disturbed. cannot liberality say appellants’ discovery judge that it tends assert the trial XV, (1929) (1941) re Quest of Custom The for Law Science Making printed Calverton, 96, 100-101, Village Maine, Man cf. (1931) 805, Sumner, Communities, See Folk 250-260. 813-815. ways. Seagle might precisely have noted that remarks, “superstitions As same are found in Maitland manifestations profession. Stern, look ceased to be our odd when the medical Social See superstitions.” Progress Montaigne, cit., (1927). Cf. loe. in Medical Factors 102, 105. resistance, moment, Note the at this “greatly un- Maine said that economists admiralty open bar, recogni to the power value, der-rate interest of tion of the elimination of new trials on body great custom and inherited admiralty appeals eases. Cf. Petter metaphor which, according idea Corp. & son T. v. New York L. Central from borrowed the Co., Cir., 992, R. 126 F.2d 994-998. mechanicians, throw aside as fric- 63 Wigmore, cit., § loc. 1845. Village Communities, tion.” 233. Study Spencer, Sociology Moore, Procedure, The Cf. of Cf. Federal (1873) 97-99, Supplement, p. 126-131. 102. relying speed on the was counsel unreasonable same or com- head-light had a Judge parable Edison power Lacombe’s decision the design. con- Unless these appellants’ (Certainly coun- comparable, hardly Electric case. ditions were it can happens surprised, that argued sel not since it was had, that exclusion of his observations he he clients behalf of same on was fatal error. We are confirmed represents persuaded here, successfully jury this view the not fact that was McCarthy judge thereby deprived to render decision guide gauge to circumstances, Palmer, supra.) In the visibility. For Adams allowed to was overturn a verdict it would be unwise to testify fully to the physical what condi- ruling because of the erroneous were, tions at tne crossing both sides point. photographs introduced which indicated lay the' Under circum- exclusionary land. ruling com- 3. The next stances, jury have made an in- permit could plained of is court’s refusal to themselves, telligent that it Adams, engineer appellant’s estimate so em- civil argued cannot be that the exclusion of ploy, describe certain observations to grope Adams’ them but observations left to by him at the scene the accident the dark. long Appellee had after its occurrence. occurred on a testified that accident only remaining 4. issue The night, although he dark clear that charg is judge whether the was correct had 20 feet stop to a full about come contribu-, ing proving that burden of proceeding, he from track before had negligence on the defendant. tory was engine. not al- observed the Adams was charging, following he was Federal map testify prepared from a lowed to 8(c). It ar Civil Procedure is Rule of physical location of him to the various as disregard gued that Rule that we should crossing. then objects or near He at proof is matter because burden of crossing some that he went to the testified “substance,” altered cannot be hence accident, both dur- ten after months necessity here rule. There court is ing night clear with- daytime and on “a argument Tor if we considering the it,” moon, I out recall observed Rule, we then reject would judge The did not allow him to the scene. York the New turn the decisions of testify he see stand- what could when relating courts, including conflict those crossing, ing at various distances Tompkins, U. R. of laws. Erie Co. v. urges that constitutes appellant 1188, 817, 114A.L.R. 82 L.Ed. S. 58 S.Ct. prejudicial error. Mfg. 1487; Stentor Electric Klaxon Co. v. noted that Adams should be Co., L.Ed. 61 S.Ct. U.S. testifying was an observer rather than While, respect to intra-mural with 1477. expert expert, and that even an transactions, that New York courts hold opinion com not state as matters proof plaintiff, in is on the the burden knowledge. First Trust Kan mon Co. v. this, they apply, would as a a case such Co., City Ins. 79 F.2d Life sas laws, the Massachu of conflict matter Circuit, v. Interstate Farris Ry. Fitzpatrick v. International law. setts Smelting States N.E. 68 A.L.R. N.Y. Parry, 166 F. 410-415. Co. happens the Massachu that it And 801. Nevertheless, probably his observations 8(c). Rule See coincides rule setts useful, and should have have been would (Ter.Ed.) Laws of Massachusetts General admitted, shown that he had been 231.65 c. made under testify observations could affirmed. judgment prevail circumstances as those identical night of the accident. on the CLARK, Judge (dissenting). Circuit visibility appear

does automobile, much same, disturbed restric was in a I. I am that he similar read into the remedial engine moving tion here he observed necessity proof procedural. spared burden of of con We are event, Whether, if, sidering problem would the federal Rule arise govern apply refusing York the New Rules Civil decisions Federal puzzle obliged ground Procedure, 8(c) are not on the rule solve proof procedural Cook, Federal Cf. hut here. Courts and the burden Laws, law, (1942) The Conflict we found Ill.L.Rev. matter substantive ap New York refused to that ply courts ground law on the the Massachusetts

999 Morgan, ex and 695, supporting g., Wigmore, 28 the of evidence —e. U.S.C.A. § Evid report the I. of stenographic clusion the of the makers of A. L. Code of the Congress the intended engineer’s of ence2 —cannot believe examination officials limitations, neither unexpressed Public and railroad and of Massachusetts such the me This seems to can I. Utilities Commission.1 stat directly opposed intent the the of to re- judge trial should note We ute, well as plain terms as as shown its offer that the statement proof fused all of sug history I background; its busi- signed in the “was opinion gest majority demon regular course that it was the ness and Moreover, decision strates as much. such statement.” such business make to quite reason peremptorily sets aside was made on Hence the exclusion this decisions of of several unanimous that, fulfilled basis even if the statement Inc., Derby Foods, 2 Hunter v. conditions, court. still statutory there was 255; Cir., 970, A.L.R. Ulm v. 110 F.2d 133 prevented something in it its use. Cir., Lines, 2 F.2d 115 Moore-McCormack decided, though even And this 492; Id., 222, certiorari 117 F.2d denied “any writing or itself statute record, states 1525; 567, 941, 85 L.Ed. U.S. S.Ct. entry whether the form of an Mortimer, 118 F. United States otherwise, as a memo- a book or 616, 266, certiorari denied U.S. act, transaction, 2d any randum record of or -; Reed Order of 86 L.Ed. S.Ct. occurrence, event, be or shall admissible Travelers, Cir., F. Commercial transaction, United act, oc- of said 1105; Brook 40 Mich. L.Rev. 2d currence, or event” if the conditions above lyn originates it >now L.Rev. 78. And “All cir- fulfilled. referred process interpretation of the of restrictive writing of the such cumstances unanimous which we have hitherto record, personal including lack of ju ly agree that repudiated. certainly I maker, may knowledge entrant or legislation be “cautious” and dicial weight, shall be shown to affect its ap I think that rule “interstitial.” But term admissibility. not affect upon, plies judicial limitation business, as much to profession, ‘business’ shall include of, expansion reforming legis judicial as to kind.” calling every occupation, against is as zeal reform mine.) engineer’s lation-—-that (Italics statement against as for re guarded zeal testimony much to kind relevant of the is direct unwise, pol dangerous, justice ought if not It is court of to de- form. admit, particularly into a statute be icy read restrictions now that sire to personally cannot believe that otherwise seals cause accident death ought result which Congress happening intended the mouth. Such chance require. Others, in proof themselves limit words to control substantial- not ly only.3 in the field greatest authorities The statement cluding to one side report “official” was under what we How trict court to show us can easi- Meaney (Ter.Ed.) ly trying Mass.Gen.Laws c. he was do. see inspector (requiring of the 112 F.2d United §§ report on railroad acci- A.L.R. 973. Commission immediately my pertinent 2 Wigmore, Ed.1940, dents) Evidence, is not 3d view; relevant, however, 1530a; Evidence, it becomes A. I. Code of Final L. majority opin- Draft, Morgan was, view so stressed in the 184—5. importance major course, of an mo- ion of the assumed draftsman of this model misrepresent. Morgan others, That was a tive to statute. The Law inquiry presence dignified Evidence, 1927, of a Ulm c. v. Moore- surely Lines, supra. tend official would to show McCormack state result was no- more constructive- Of course death is not a condition un- report ly say, law). than, (unlike unreliable der the statute common accountant, government’s this, clear, for The reason it seems to use me prosecution recognition approaching is the tri- unless there is good al, reason, Mortimer, States some as either conve- proof non-availability denied nience certiorari U.S. witness, attempt suppress living S.Ct. 86 L.Ed. —. Criticism testimony prearranged nature and extent the defend- memoran- unjusti- proof offer of herein seems dum is too obvious fool ants’ modern triers foolhardy fied, attempted. in view of refusal of too often district matter; framing therefore, to consider broad court counsel contempt be forced be foolish to insert a cannot dis- limitation applied really of fear type logically, the excluded without much more doubtful n on, favor, cases, are, indeed, by the relied we back in the New York herein then past rule; those of of cases of other even the common-law dealt with entries people’s statements, mo- generally so course there is some possible far the misrepresent tive past entrant Yet in all entries of mas concerned. himself those Wigmore’s present subject decisions received which are the of events litigation. severe the (Evidence, turning point criticism Ed. the is 3d § 1530a), by motivation, approval degree possible cited with then subjective us in the have a test hopelessly Ulm case.4 The limitation here unfair depending brusque added I goes beyond anything upon initial reac- the statute the prece- know in tions of the state federal trier. dents on this uniform statute and model hand, perhaps On the “in on the stress clearly and things normal must interdict such anticipated use lawsuit” is intended pass- reports of accidents or even feared, suggest both to the inherent vice enger by disputes regularly made street yardstick well as to offer a determine and, railway operators motormen or bus the the extent excision. If so—and its

logically, quite judicially familiar even argument developed not submit that is —I log of a ship at sea. too, it, illogical is both an and an ttnfair test. Since the first cave man notch- justified asking I think we are stick, supposed on a both es I had precise some more formulation of re- purpose were value of records opinion. striction than is stated in If disputes prevent use their in future —to we are reverse uniform now to trend fact, many, to settle others. As matter of up of this to now in court its favorable very argument this was considered statute, those of construction of us length rejected on the authorities are the step who doubtful of wisdom of Mortimer, supra. in United States v. us really are entitled to know what it if is. And ask, deference, really I with all what So judges, lawyers, litigants com- must now the restriction evidence which is port too, accordingly, they, themselves propounded? entitled to a like definition. I find both argumentation supporting rationale The exclusion vague and restriction and nebu- my clearly here to mind Apparently lous. demonstrates stressed reason is misrepresent favorably the statute construed. motive reason —a away analysis of century The acute the trend which went out when favor a ago hearsay, fears of disqualification from common-law for interest was abol- ished, complete freedom such judges juries almost and when proposed sophistication Institute Code granted shackles withstand- some trend of exposure possible is.5 perjury shows what times and al- n The evidence, point history lowed to clinched hear entire not proposal merely its a commit parts thereof. Is a statute and chosen court distinguished experts of exclude, of the most depending then to tee admit or on its country Judge the revered preliminary (without (including guess the benefit court). Of Hough course the stat prof- of this evidence) as to all whether part from business-entries grew in dripping fered “is with motiva- ute if that law.6 But of the common misrepresent”? rule tions If is-. rule Loan, Inc., unfair, Personal almost inevi- Madison often where misuse penalty. Parker, tably proper 124 F.2d 143. incur wojtld says, objection might Wigmore is, also Reference have' 4 As including Eng- provision express authorities, sen the new of the second weight, Act, cited in Boerner v. affect the lish Evidence tence of the admissibility, 117 F.2d state but not U.S. the New certiorari 61 S.Ct. rehabilitation denied ment. quot- made, contrary provision to our here L.Ed. 1542. York cases opinion promoting previous view, and would not thus ed note justify (cf. supra); uniformity, diversity, here construction exclusion note carefully legisla- (adopted moreover, general it is a defined several vague judicial op. ; provision, states, Wigmore, limi- tive cit. against 1126), views our tation. Mich.L.Rev. legislation shop-book generally, even well as the rule and the to uniform As rule for of memoranda field. United States v. the use to revive substantive past memory recollection, Realty Corp., or as records of Novsam re and eclectic nature experts partial had in their all the mind —if selves. “regular trivial, meaning not ma here ascribed to minor and form was mere surely aby of is shown jor they thought they would course business” — least, particular out, all common-law at statement of this very have left above, other italicized rule —as there were words statute I have stated of Wig- place rules which led to this reform. above. words have no also Those Actually more, Evidence, 3d the ex Ed. statute as construed. §§ here ,7 they and distinct re perts intended, as to make lists several show different beyond quirements: or the en general go death absence of broad rule would trant; business, com with an vagaries of all diversities and law, English mon partial duty various stat limitation of owed or and actually utes, entry; regularity of con person; and third the different states temporaneousness; by courts, I should be settle believe some mo- the matter. accomplished misrepresent;9 held result. five to Refer- writing. to have this some to the will show that may suggestions Certain further be not- e,nce sta^te carefully continued; these are others are First, ed. not a statute limited to only reason that omitted. jury in only evidence in trials —now had care^^y employed technique here does small number of even the civil ac- usual say, requirements, back the bnn& applicable tions8 —but one to all courts death, duty person a third owed is that or claims, bankruptcy, the United appear bere those fulfilled. In conditions patent appeals, customs and even ad- logic require another case that constituted, courts, if ministrative and as also, *bey brought back policy developed history No of re- jury ap- on strictions trials is therefore Moreover, add, I feel I with plicable; clearly the statute makers were (as me) reference it to this whol- seems following juries, modern trend ly meaning “regular forced course of triers, like job other can business,” do a better clear- nothing that I can find eyed judicial Second, than with blinders. history of the or in the cases con- suggestion “regular course of struing justify it hanging much 'business” are words of art which contain Certainly so little. our cases look prohibition some such themselves way; other and United States v. Mor- misrepresent” “without motive to timer, seems to supra, definitely repudiates it me more and than shrewd labored frank holding prepared that a document for the helpful projected even defining purpose of within trial the statute. add, may deference, rule. One this connection I do not understand technique this is judicial legisla- a new importance reiterated of Needle v. New tion; permit incorpora- it will extensive Corp., Railways supra, York does any tion of ancient rule into almost new not deal with entries interested legislation merely by reform saying that merely person at all. the New reiterates ordinary certain expres- and well-known rule, by Wigmore,10 that York criticized sions include the common law them- entry by pure policeman another’s statutory attempts present and (see 4, 10, numerous and contrary, proposals, court. On these judg tremely embarrassing sustaining Code, carry such as the Institute’s fundamentally number just.” ment trend free towards admission further and put recently verdicts have Moreover, hearsay generally. extend it to me jeopardy by seems harsh exclusions present requirements provide statutory distressing. Ulm v. Moore-McCor See large judicial judgment, area of we Lines, supra; States mack United particular had point occasion to out in White, supra; Reed v. Order case, opinion in second the Ulm 117 F.2d Travelers, Commercial supra; Commercial 222. judge Had the trial been will- here Cir., Martel, 2 Corp. Banking 846; ing to listen cross- examination and Inc., Lines, Dixon & Jayne v. Mason examination regu- of witnesses United States F.2d business, larity claimed Del F.2d Pignatelli, shown, and then found it had not been Realty Co., 2 v. Blockdel lefield we hardly objected could have ex- should'' reversal I believe F.2d 85. Since clusion of the evidence. For it is the discussed, I here first exclusion follow the holding that under no could circumstances question serious to decide do not need report be received it because must con errors can these whether or mis- considered saturated motives to charge agree I harmless. sidered disturbing. represent I find so erroneous. proof was on burden of of, if we could think de- even or ourselves statute, vise, we never- a better us, accept what theless before judg- it representing as does considered ment, product of the best modern think- that on more harm comes ing, balance evidence, excluding where biased relevant, admitting it. I feel than from strongly that is serious business statutory carefully prepared emasculate HIGGINS, Collector of MEIERHOF v. reform. Revenue. Internal Finally, the failure to the extent define No. 276. por- makes result a restriction of the Appeals, Circuit. Second Court of Circuit on trouble. Stress is laid future tent July powerful of a motive to existence what constitutes such misrepresent; but large, seemingly left at motive trier, in the midst hasty discretion hardly I that there case. submit which could not be book grocer’s account business that basis. If houses excluded honestly put themselves in the wish statute, contemplated by the how situation stands, As so? an- to do they cannot. Con- be that now must swer language the unconditional trary to up stvift reac- result is part trial moment on tions judge. proffers that the two agree I II. wrongfully refused. I And Fancy App.Div. Corp., 291 N.Y.S. 837. F. See Geroeami v. &P. decision notes Morgan herein), revision these rules. demonstrate never others, Evidence, 1927, requirement The Law of dreamed that some of mo- 5; Wigmore, op. 1520-1530a; c. cit. misrepresent §§ tive to could or should be Brooklyn Attorney L.Rev. 78. And read into the statute. Cummings, recommending General per five In less than cent civil of all legislation merely Congress, rehearsed cases, and in about one-seventh of the background way any sug- without contested civil cases before the court. gesting completely stultifying addi- Ann.Rep.Dir.Adm.Off. Courts, U. S. tion here statute. p. Table 7 Morgan Wigmore, See cited notes requirement Not even mentioned as a supra. 2 and I think noted these ex prefacing in the discussion the model act. perts highly competent witnesses Morgan others, The Law of Evi- meaning intent the statute dence, 1927, c. 5. they originated sponsored; and both “again going directly contrary their affirmative statements and their se As express cases, Wig- vere criticism York New words” the statute. more, op. which are much less restrictive than our cit. § 1530a. hearsay oral persuade statements cannot be re- wish judges could district ceived.11 I fear the case Hand, misun- of the wisdom of L. admonition J.’s derstood. White, Cir., in United States v. disposition to rule out “the Again, suggestion some is made that la- against some because offends proposals ter for reform be better canon dis of the law is to be of evidence they perhaps than this statute because couraged; seldom does admission give more discretion to exclude to the trial harm, proves often ex while exclusion

Case Details

Case Name: Hoffman v. Palmer

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 31, 1942

Citation: 129 F.2d 976

Docket Number: 261

Court Abbreviation: 2d Cir.