Nu Car Carriers, Inc. v. Traynor, 125 F.2d 47

Nu Car Carriers, Inc. v. Traynor

125 F.2d 47 | D.C. Cir. | 1942

EDGERTON, Associate Justice.

Appellee has recovered judgment against appellant for injuries which he received in a collision between a car which he was driving and a truck which belonged to appellant. The chief issue was whether the driver of appellant’s truck was negligent.

Appellant proposed to offer in evidence a copy of the following statement alleged to have been signed by appellee in the presence of appellant’s driver: “To whom it may concern: I hereby exonerate Driver George Emmert, of the Nu Car Carriers, from all blame or negligence in connection with an accident involving the undersigned at Bel Air, Maryland, on this date, 10/17/35.” Appellant’s driver did not remember its exact language, but testified that appellee had signed a statement which in substance exonerated him from any blame in connection with the accident. He testified that he delivered that statement to Westcott, appellant’s assistant manager. Westcott testified that he received such a statement from the driver, but that he was not present when it was signed. The court ruled that Westcott’s testimony was not admissible. It also refused to permit Haywood, another representative of appellant, to testify that he had made a search for the signed statement. Appellant’s counsel told the court that he proposed to prove by various witnesses the course through which the signed statement had passed, that unsuccessful search for it had been made, and that the paper which he sought to offer in evidence was a copy of the original. The court refused to admit such testimony.

Secondary evidence of the contents of a writing is admissible on proof *48that the original is lost.1 A verified copy is competent secondary evidence. A copy is verified if successive witnesses trace the original into the hands of a witness who made or compared the copy.2 Appellant proposed to lay an adequate foundation for admitting the copy, and should have been allowed to proceed.

The error was prejudicial. A statement which exonerates a driver from “all blame or negligence” is an admission that he was not to blame and not negligent. If appellee’s admission had been received, it would have been persuasive evidence in appellant’s favor on the basic issue in the case.

Reversed.

Guilford Granite Co. v. Harrison Granite Co., 23 App.D.C. 1, 24; Chalvet v. Huston, 43 App.D.C. 77, Ann. Cas. 1916C, 1180.

Wigmore, Evidence, 3d Ed., § 1280.