Max Grossman v. U. S. Slicing MacHine Company, Inc
365 F.2d 687
3rd Cir.
1966
Check Treatment

*2 peared page, of sub- at the end the second Philadelphia, Hannum, Pa. John B. sequent language: rad “I have Scheetz, (Pepper, Philadel- Hamilton & Page on & phia, Pa., brief), appellee. [sic] on page true and correct.” The first con- FORMAN, Before GANEY appellant’s initials, he, tained in the Judges. FREEDMAN, Circuit recross-examination, of volun- course his. teered a denial the initials were THE OPINION OF COURT page paragraph The second of first statement, of the of the above middle Judge. FORMAN, Circuit page, allegedly appellant told reflects that Garrigle slipped Mr. his hand had (hereinafter Plaintiff, Max Grossman off the meat into in con- Jersey. the blade. This was appellant) is a citizen of New testimony appellant’s tradiction to direct Slicing Defendant, United Machine machine drew his into the hand Co., appellee) (hereinafter Inc. is incor- blade. from Cross-examination elicited principal place porated of has its appellant page two that the first on words properly business Indiana. Venue were a words Pennsyl- continuation of last laid in the Eastern District Appellant one. also testified diversity negligence ac- vania. this cross-examination the observation tion, appeal en- from a appearing one that his hand appellee’s subsequent a tered in favor slipped off the was Neither meat false. jury exonerating appellee from verdict attorneys appellant’s appellee’s nor liability appellant’s and a denial of new pressed questions specifically inquiring trial motion.1 regardless fact, had in Appellant, by trade, in- a meat cutter veracity statement, Mr. told jured finger his on a left index Garrigle to be claimed machine, saw, specialized band manu- inaccurate observation. theory appellee. factured The lia- bility appellee sought Appellee was that had failed re- of this the introduction pair properly, service machine two direct evidence statement as allegedly ap- mishap. appellant’s for the blade loosened while that which caused pellant cutting meat, Garrigle catching the Mr. court but was simultaneously pulling appel- by appellee meat and called to authenticate theory objected Appellant lant’s in- hand into the its statement. blade. sought testimony ground proven by mere troduction on expressing difficulty frequency signature appeared on admission that his with the machine and did the failure the second of the statement appellee’s whole, repairmen do as a more than suffice to authenticate it tighten light testimony in- each as to the screw a call was of his time repairs. Appellant autheniticity page. Dis- quali- also the first engineer safety expert fied a state- as an wit- admitted the trict Court largely proper repair Appellant techniques ness on meat ment into evidence. Co., Slicing Inc., E.D.Pa., 18, 1965, F.R..D. 24. Grossman v. U. S. Machine Oct. appeal his contention trict Court confirmed its admission rests his commenting: re- statement constituted admission error. versible making party denies “When * * * is incumbent it denying ap In its memorandum proof that him to forward come with pellant’s the Dis motion for a new trial2 misquoted has or his statement been agreed trict Court *3 tampered manner.” some necessarily was not bound to follow which, Pennsylvania rules It called that of evidence3 attention to the fact rejec appellant argued, scrivener have commanded the was in court and could proffered testify tion of the in the ab about been called as a witness by surrounding The an affirmative authentication the facts document. sence Garrigle. Mr. Rule Rather it turned to District Court concluded that ad- signature 43(a) of the Federal Pro Rules Civil mitted 2 sufficient was pages cedure which it held “makes both of the docu- authenticate if admissible it would ment. be admissible under any legal specified of the standards appellee upon position The rests statutes; (1) that rule: United States urges by taken the District It also Court. (2) preexisting rules of the United States should Court’s be af- equity courts; (3) or state rules evi ground no firmed on the there was ” * * * dence. It cited decision of actually “denial the statement was 4 Wright this court cor v. Wilson allegation by appellant made nor rectly determined in the federal incorrectly re- was given courts, a conflict between a state’s by merely corded It is scrivener. evidence, and the federal rules rule denial as the accident occurred set that would admit the evidence is the one forth in the statement.” apply.5 Initially turning point, to this at appellant appellant trial District the attention of the was Court found that had admitted drawn to the that he had statement7 on cross-exami- a “con- integrated appellee. response tinuous nation to his statement.” Relying Wigmore’s signature as to “proof signature two of the statement was that the document charge appellant is sufficient affirma- him”6 the answer the Dis- was Ibid. months. Work there for about 9 worked have P.M. and from 9:00 A.M. to 6:00 Bufalino, Pa.Super. 481, 3. Lemmon v. 204 P.M. P.M. or 2:00 from 1:00 P.M. to 1:30 484, (1964); Seckinger 205 A.2d 680 per paid over $145.00 lunch. Am for Economy Laundry, Inc., Pa.Super. 133 week. 414, 418, (1938). 3 A.2d 46 5, or 5:00 about 4:30 “On June 1961 at 619, 616, 4. 154 F.2d stationary 170 A.L.R. 1237 cutting on a PM. I was meat (1946). my cutting left electric meat saw when my slipped second off the meat and hand 5. For related discussions see two cases re- moving finger blade or middle struck the cently decided this court: United right joint. I am handed. at the second Land, States v. 60.14 Acres of 362 F.2d profusely it I had so It bled but (June 29, 1966) Pakov, 660 and Rain v. bandaged tourniquet ap- at work and a 506, (1966). 357 F.2d 509-510 my employer. plied Carl Wenoff Wigmore, (3rd 6. VII ed. § Evidence 2134 get bleeding stopped. I did 1940). part- day. Lou who is Carl’s doctor that go doctor to a ner wanted me “Page quitting day. stayed time. I at work till Heights, “Gloucester N. J. I 1961 but I came to work June July 7, 1961 spent the rest couldn’t work Grossman, years old, “I am Max evening day Dr. I called here. That Avenue, married live at 7 S. Richards my family doctor, Mally, Stuart Ventura, employed N. J. a meat cutter Hospital so I Economy at the Shore Memorial Service, at Swift Home Food Lehigh Avenue, Gloucester, taken. where stitches N. J. have went there that coun- The fact remains to the stand. Thereupon counsel tive. only question appellee framed his questions on the con- sel concerning based asked several page one the vital answer within paragraph of of the first tents consistently. scope: or false?” it true Then narrow “Is answered following which were likely per- Viewing response interrogation: in the ensued stand, spective 4:30 “Q. at about June ‘On interpret mean- it as is not far fetched to ing aon meat I or P.M. was 5:00 by him not made any answer cutting saw stationary meat electric if it event recorded therein. my slipped meat off the hand left when ambiguous response it is so because finger my struck second or middle put. the form which the joint.’ moving blade at the second ques- appellee’s It is to be observed that Is or false that true ? response as to whether tion called for no my in. No, pulled hand “A. the meat given by appellant the written answer you “Q. just I asked Now wait. ap- *4 Garrigle. Indeed, to pellant far as the Mr. false? question. or Is it true concerned, his direct is what is “A. false. purported statement that the page initials implication “Q. spurious, one were False? plain himself that he disassociated right.” “A. That’s page one. from the answer contained examination, Later, counsel on re-cross Nothing by appellee to more was done appellee inquired appellant: identify appellant answer with that “Q. words, page 1 and In other interrogation by calling further Mr. or you together, 2 are to read be himself, Garrigle, presence he, had whose signed page 2, a continuation which is provided in court are room. We page 1, correct? persuaded helped, that the me, “A. It looks that’s like it to suggests, by be what at most can although right, my ini- these are not ambiguous response as an characterized tials. narrowly to his framed “true or false” “Q. my question, question. That isn’t sir. are then left with the ulti- We saying— What I signature am question: mate whether the second has go what been char- According “A. to this one would integrated acterized as a “continuous right. other, into the that’s adequate statement” is authentica- go “Q. According to this one would tion to warrant the admission of the en- you signed page into the other. And tire statement into evidence under part which is 1? circumstances of this case. say “A. I so.” would any We have been unable to locate au- argues Appellee appel- that counsel thority disposing in this Circuit either interrogated appel- lant could then have of, shedding light upon, specific or pointedly lant more de- as to whether he problem faced herein. find of some We having given nied as con- the answer value, however, two cases dismissed from tained in the statement and moreover consideration the District Court since he had been aware that Mr. made ground portions that in them Garrigle of the state- present in room court they appellant’s merely him ments were counsel could called excluded because have Monday Mally treating hospital then Dr. next Since my finger has been admitted Tuesday I I will lose he said will have and has said that or surgery get finger to have done to I never had at least weeks work. pay shape. back to its former I did not while meat. such serious accident hospital Mally going bill. [sic] Dr. “I have rad (s) correct. M. It is true and G. & “Page “(s) 7-7-61 Max Grossman perform surgery. Garrigle” “(s) He will have me John although appear opinion en- on examination to be “did not does not indicate signature.” compassed by challenged where Andrews the statement. circumstances, Under such the United appel- United Prevost v. Seventh States Court for the assigned lant as error the admission Circuit found card’s exclusion from paper. sheet two sheets On the first appropriate. evidence signed appeared appellant’s statement. find those contrast cases we to these although signature admitted, accepted by Court cited the District by appel- not written unpersuasive. In In Michael v. World lant. called to The scrivener was not Company,11 surance it was held authenticate the statement. This state- signed confirmation of an interview appeared separat- ment belowa ruled line plaintiff in evidence admissible ing lengthy caption appearing from proven because it was top page. caption at the de- signed appar it. The scrivener was alleged scribed and certain fac- ently state not called to authenticate giving tual circumstances attendant to his However, indication ment. there is no the statement. The second sheet con- opinion the admissi the Court’s prob- tained material not relevant our multi-page bility writ single-page or of a Appellant objected lem. to the introduc- ing issue, possible factor. critical was at objected separate- tion of both sheets and bankrupt Haydu,12 And in In re ly introduction into admittedly financial a co-maker’s caption appearing top of sheet one. statement, sought into introduced The District Court found all material *5 admittedly evidence, on there were which on both sheets admissible. The Court Court’s false The text of the statements. Appeals of the Ninth Circuit reversed. opinion explicitly does not reflect As to the first sheet it found as the one-page the financial statement was a signed by appellant, statement was it was document, although it is referred to as admissible into evidence. The scrivener’s argued bankrupt paper.” “the The testimony apparently was un- considered made he had not the statement but necessary light sig- in the of the admitted signed he had the financial statement However, nature. pearing caption ap- as to the easily Finding more blank. that it was top sheet, at the of the first the bankrupt province of in the within the the Court of found that not it was bank, produce to situation rather than signed the by appellant. Thus, though even attending as to the facts the witnesses appeared appel- the same statement, preparation of the financial signed statement, lant’s the Court de- signature, the of the admitted existence impute clined to edgment to his acknowl- more, without was held authenticate to speci- the substantive matters statement. the caption. fied in the The other case of some An- runs moment is which is a common thread There Sherman, Haydu drews Hotel through Prevost, Inc.10 The basic Andrews the problem in prag- Andrews is similar to Prevost. cases reflect cases. All these The District question Court had approach excluded from of au- evi- to matical the registration cap- lengthy dence Prevost, Andrew’s card at an- In the thentication. Appellant, Sherman, other hotel. Hotel the because ruled inadmissible tion was signature offered the for on the card it contained a existence of the mere page upon advantageous Though recital appeared caption to did it. An- which the signing drews Court, card, appel- admitted not, concept without the of that the signa- lee did more, reasonably show that the the recital indicate that card Andrews, by been tory’s there drawn to attention had been supra. 8. 1960). Note 1 (5 Cir. 254 F.2d 663 (9 1945). 9. 149 F.2d 747 Cir. F.Supp. (E.D.N.Y.1952). 12. 105 (7 1943). 10. 138 F.2d Cir. pellee’s signature af- the scrivener then caption his to call and that faiure caption court, The constrains us to the view of it. firmed the substance top page. authentica- appeared It has not been sufficient there at the signed by a to meet separated of the document tion one from the may standard, signatory’s attention even the federal evidence ruled The line. prej- caption, the into that its admission evidence was to the never have drawn been being appellant. caption some- to udicial substance of the thing to reasonable it would be which urges Appellant error certain also person to expect asked have been would charge portions of the District Court’s op- Also, signature. his affirm jury. instructions The criticized adding caption portunity ruling with flowed from the evidence signa- subsequent top the case differed. Since we have signature tory placing party’s remanded, instruc- is to be on retrial may a latent considera- been have to the cri- will of course conform tions Andrews, feature the same tion. authenticity herein. terion for established present Lan- out as is in Prevost. stands Dis- United registration guage appeared on card Eastern District trict Court regis- usual for a which it would not be Pennsylvania and the will be reversed signature. trant to include and attest trial in accord- case remanded for new in such Without further authentication above-expressed ance views. with signature situation, held alone was qualify as to insufficient Judge GANEY, (dissenting). Circuit reliability. its was thus ruled inadmis- I dissent. Haydu, admissi- sible. the result was bility, admissibility approach Court appears taken be similar to that itself sole- document concerns ly Page financial Prevost and Andrews. That a is an ad- thereof statement would be in blank and facts mitted authentic statement friendly stated, states two witnesses therein since signatory position signature who in the best bottom thereof at the *6 testify his, objection not ad- as to that were is and is no to its circumstance there sig- called, persuaded question missibility, the Court that the which leads to the representations posed, page nature alone 1 ad- made the here as to whether was likewise, it case. on reliable in that which contained missible plaintiff. the initials of Applying approach to the above agreed of is a dearth I am that there problem the instant find the existence we multiple authority as to or not whether multi-page document, a and the avail of here, statements, page obtain such as ability scrivener, of the circumstances signed page thereof, make the on the last which turn case. The statement the However, entire document admissible. appears page claimed to be false one me, authority, it seems to this lack of signature appears document. that it involves stems from the fact page two, sen but a conventional evidentiary proof, question is which sig tence toit the effect that above the new, by the nor reason of neither novel natory pages. no had read There is both construing courts, law the fact that sign authenticity one, other many years, have evolved evidence over appellant denying appear that the initials fairly procedural rules which certain are ing his, thereon were and common. proving ap otherwise the initials were pellant’s. majority, Thus, possibility latent cited the the The cases way number, no exists that to me are in one could have been al it seems posed. tered, appellant denying question apposite truth of the here the the 247, States, F.2d crucial statement 149 thereon. The circum Prevost v. United ap- typewritten by majority, involved, here the the stances combined with relied on

693 ment, signed initialed, was is the witness the defendant which was admissible, state- asked the stand portion but whether of was and that it slipped a ment off the paper that his left hand caption on which had the cutting on a sta- it, meat while he was it it and the that is under between line tionary inadmissible, true or itself, meat machine was held was false, false, al- and he stated it was said he that stand the witness though on, fact, asked and, stated later when it a matter never read signed, 2, presented was which he had it to seen until it was never page 1, he answered Here, continuation him in court. stated right, that, me, like it to that’s pages “It looks 1 and had read that he both although my initials.” they these are not and correct. were true (Emphasis on, supplied.) Again, later Sherman, 138 F.2d Andrews Hotel him, posed when hotel, registration 254, a card “According go into the to this one would though signed by Andrews, ad- showed signed you 2, is other. which And advantageous missions which was, part ?”, and his answer by it and was offered in evi- say (Emphasis supplied.) “I would so.” showing However, dence. no there was readily This, me, it seems to can that Andrews had it either there pages construed as a fact really thereof, or had read so the contents or, part 2 were at the same document rightfully the court excluded it from most, it was a of fact jury’s However, consideration. later jury. Pennsylvania cases, such as Geelen v. 860, Haydu, 859, Pennsylvania F.Supp. In re con- Company, Pa. Railroad 240, cerned bank a financial statement 161 A.2d A.L.R.2d hold which and the testimony was offered shows where the bankrupt reading admitted he had witness testified that after alleged paper statement, unequivocally she stated However, referee therein false. it was a correct statement of the facts person held that admitted the statement and that she had told them to the who up maker, bankrupt, nothing down, to call wrote them and there-was person incorrect, prepared facts con- who contained therein writing fal- admissible, tained in order therein to show the made the and it was sity unnecessary holding, not one This thereof. while to call the scrivener instrument, covering multiple page prove making stand and or the execu- alleging signer clearly, anof instrument tion thereof. This demonstrates calling my his, put judgment, contents are that the courts Penn- person sylvania prepared facts there- who hold that de- there no where *7 in, prove contents, the facts to the that page nial of the statement on a and the effect, falsely thereon, placed in were thereof, witness admits as to the content alleges prove it must that he fraud signature, well who as the the that document and, therefore, the in calling full accord with admissible, is is the scrive- without position denial of ner, taken. mere exactly page here which of the situation page state- 1 the and that initials 688 herein. To the effect is Beards- same ly insufficient, Weaver, 130, page false, v. 529. Pa. 166 A.2d ment on 1 was my judgment, instru- in to render We therefore un- start out with the law. as a of ment inadmissible matter questioned page fact that 2 is authen- Furthermore, 43(a) Fed- tic Rule of facts therein con- Proceeding page that eral holds tained. 1 of the Rules of Civil Procedure1 docu- rule, pertinent part, 1. This is ad- reads shall be admitted which as fol lows: under the of the United missible statutes (a) Admissibility. States, “Evidence Form and under of evidence or rules testimony applied In all trials courts of witnesses heretofore hearing orally open court, suits shall be taken unless United States provided by equity, otherwise rules. All or under rules of evidence these would conflict the that case of rule BAYLESS, Appellant, Samuel Thomas apply. should admit the evidence page 2 my judgment, the fact plain- America, by an authentic UNITED STATES Appellee. tiff; he therein said they pages 1 and and read No. 8598. true; contin- document shows United States Court of uity expression pages between Tenth Circuit. 2; plaintiff one himself said that 2, Sept. other into the went Sept. Rehearing Denied part is a genuineness presumption of raised presented prima facie document and validity thereof, case, which was falsity. allegation by a rebutted mere here, On factual the basis of the elements showing made, above this going defendant, the burden proof forward —not the burden —on plaintiff fraudu- show having and, so, lent done resultant page 1 in the document witness, true, and its denial question of fact for consid-

raised jury.

eration of the

Contention is made asked, question had made on 1 was

statement he very false, posed a or one which

true issue to the and that

narrow ambiguity

whatever resulted therefrom

was due the narrowness of the

posed by simple an- the defendant. plaintiff’s

swer this is that coun-

sel could have taken the back witness inquiry horizon

broadened the of his sought limits he since the de-

whatever by asking opened

fendant, question, widely possible.

the door opinion

I am of the the submission jury determine document factual therein involved accordingly, would,

a correct one and I *8 court.

affirm the of the lower general jurisdic- applied prescribed the courts convenient method in which tion of the state the United or rules to which reference statutes any case, competency court held. is herein made. The reception testify or rule which favors statute witness to determined shall be governs and of the evidence the evidence like manner.” according presented shall be most