United States v. New York Foreign Trade Zone Operators, Inc.

America, STATES of UNITED Plaintiff-Appellant, ZONE YORK FOREIGN TRADE

NEW OPERATORS, INC., Defendant-

Appellee. Docket 26883.

No. Appeals States

United Second Circuit.

Argued Oct.

Decided June Hollander, Chief, Appellate Morton (William

Section, Dept, H. Or- Justice Atty. Gen., rick, Jr., M. Asst. Robert Laugh- Morgenthau, Atty., U. John G. S. Dept, Jacks, Attys., Ronald A. lin and Justice), plaintiff-appellant. (John City Smith, New York John F. City, counsel), Nielsen, York New defendant-appellee. CLARK, WATERMAN Before Judges. MOORE, Circuit Judge. required by statute, then, WATERMAN, As on Circuit he July 1958, 7, assigned United of Amer- plaintiff, United States against might States claim he injury ica, assignee personal as a the defendant the defendant was Garcia, Joseph employee, claim brought its damages legally injuries. liable in for his negligence action Employees’ Compensation Federal 26, Act § against defendant, the For- New York amended, (1916), 39 Stat. 747 as eign Operators, Trade Zone Inc. From (1958), U.S.C.A. as amended. § judgment jury a a entered verdict assignment Pursuant to this the United defendant, plaintiff favor States, August brought 6, 1958, on appeals. present action the defendant. injury, January 20, alleges of his On date The Government that Garcia's 1957, Joseph employed injury was as Garcia awas result of defendant's negligent waiter G. the USNS General W. aboard to and ice failure remove snow Haan, was at Pier stringpiece. then docked which that had on the accumulated 16, Island, Stapleton, in New Staten The defendant snow maintains that the and York The defendant owned harbor. and ice had been removed at the time of operated long. pier, neg- feet was 1000 the ligence and own that Garcia’s injury. A warehouse extended almost his contributed to length pier spanned full and The case was tried in November except space for a narrow entire width Matthews, Garcia and his fellow-seaman “stringpiece,” pathway, as called used accident, who testified to seen eight wide, side feet between one five icy stringpiece, condition edge the warehouse fell Garcia because the ice caused him pier. slip. addition, pro the Government dockage Under its contract duced as a witness Garcia’s immediate superior, Gordon, promised provide Navy the Haan’s stew the defendant chief ard, in order further to substantiate its seamen access to General Haan on keep good contention there was ice and to the means of access in stringpiece During at the mis time of Garcia’s condition. the weekends the January 21, 1957, hap. day On locked, fob warehouse was so seamen had to lowing along accident, pre stringpiece Gordon had walk order pared event, official as ship. travel and from the On a Sun- regulation required statute and day him to walking along afternoon while Employees’ Compensation Federal do. stringpiece ship toward the Garcia (1916), Act § Stat. 747 as amend slipped injured and fell. He was seri- ed, amended; (1958), 5 U.S.C.A. ously. § 1.3. The C.F.R. was made § Employees' Federal Under the Com- by filling govern spaces on blank pensation Act, (1916), E9 Stat. 742 provided purpose. ment form amended, (1958), 5 U.S.C.A. § 751 contained Gordon’s account of the accid compensation Garcia received for his signed ent1 and a brief statement injury from the Government. After Matthews.2 Gordon identified this returning completing “Garcia was my the vessel aboard after watch evening serve the meal and (T-AP158). had to walk W. Haan USNS Gen. G. along stringpiece pier pier walking Joseph since the saw toward me I was closed for week him, end. There was shot when his feet out from under stringpiece on ice and snow body left over twisted fell on his left attempted from recent storm. As he side.” patch ice, slipped fell, cross a given testimony Matthews’ on stand striking shoulder, injur- his left arm and pertinent part was similar. The follows: ing same.” you “Q. Tell us what saw and 2. “On * * * Sunday, approxi- you very icy 20 Jan at did. A. It was mately hours, going cold, coming I was ashore and it down the while recollection evidence of the occurrence was some- offered in stand, and, hazy, following place: over what took he objection, on the witness un- admitted into “Q. Now, the first when was pro- hearsay exception rule to the der the anybody you talked about time to Records Business Federal vided case, Mr. A. I this Matthews? Act, (1958). tes- After § 28 U.S.C. summer, think it last—last tifying been based had that investigator Federal to Bureau came only had received he on information my home. upon per- his own but also from others “Q. you And at that time did tell knowledge own his from obtained sonal investigation, him about this man that was dismissed as you? with A. At first I couldn’t being otherwise ever witness without anything remember showed until he knowledge testify to to his asked signed copy me this had I any other matters con- toor accident report. out thd accident report. The contents tained in “Q. say Just un- a minute. You jury. to not revealed were you til this and man came showed - something you couldn’t remember later, evi- days the trial after Three anything about accident? A. court and after the closed had been dence very long before, It was a April, time charge requests upon to ruled had year. until last it, to had submitted parties that ruling, ex- prior reversed the court “Q. man And this when came he forthwith cluded you your to house did tell how the he jury without case submitted you happened? accident Did tell he it, per- or jurors to see permitting mitting He did. about it? A. them. to be read “Q. He did? A. Yes. Matthews, said, fel- one we have As “Q. you told And after he about accident as low-seaman, testified accident, you knew about it then wit- the first eye-witness. He Began right? A. come is that cross-examination, during after signa- my ness, back, saw after I because ture, paper been asked had questions and read I number report.”3 bring signed, accident Matthews' designed way home, His A. neath stood gangway follows: port all slippery swer.) kins: The entire “Q. “Q. What “A. “Q. And "The Redirect “Q. see the of a sudden ^[*****] Very feet aboard the watch him Just I saw Mr. Court: much so. went and he conditions Matthews, approaching Examination tell with redirect icy.” was the condition? A. Mr. Garcia he And what us what completely me, fell vessel? A. you friend, slipped and examination was and we on his left side. did able fall. Mr. you you the fellow you did. at from were on our stringpiece? Garcia, saw. He make Mr. fell. (No slipped. under- Hop- a re- Very time who an- never identified I proper cause show tiffs or. to this “Mr. "Q. “Mr. “The Court: "Mr. “Q. “The “Mr. did, “The Court: “The Court: “(Witness “Mr. vessel FBI. Exhibit— he— sir. made Lyons: I Hopkins: Did basis for Hopkins: Court: Hopkins: No, Hopkins: had made show now? you sign any excused.)” one. day you I Your own witness testified man had no You will You No. until it. object statement one and he remembered That after He Well, copy are has is your statement the accident was indicated excused. all I have could I have it this, your which is Plain- attempted recollection, Honor, have. lay respect aboard Hon- ? be- A. compensation that Gordon after from evidence admitted, objection, would Matthews had been dur- have corroborated over ing and, Garcia, plaintiff's case, in- personal in view of the under Federal pro- Business terest of Records and the attack Act. That act vides, great- credibility, applicable: insofar Matthews' as is ly strengthened case. the Government’s regular Record made ** course jury greatly That the troubled and “(a) any the United enlightenment could have used more States and in court established they evident occurred after writing Congress, any Act of received They the case. had deliberated record, whether an in the form of requested for they an hour when entry otherwise, in a book or testimony Matthews’ read to them. be any as a memorandum or record of having done, again jury This been act, transaction, occurrence, or retired, only request once more to “addi- event, shall be admissible evi- as information, possibly tional set forth act, transaction, dence of such oc- agent’s of the FBI conversa- currence, regu- event, or if made in April tion with Mr. Matthews in business, lar course of if Mr. in what Mat- Our basic interest regular was the of such course busi- signed reported in the document thews ness make such memorandum or day as to the accident the stringpiece after act, record at the time of such trans- very icy slippery.” being action, occurrence, or event or with- FBI pointed that no The court in a reasonable time thereafter. they and that was in evidence4 “All Matthews’ tes- the content of limited to circumstances testimony writing record, timony on the stand. such or This time, including knowledge personal there- read second lack then jury maker, may informed the entrant after weight, at unanimous ver- shown arrive affect its it could not but Later, charge, an additional circumstances shall missibility. after not affect ad- dict. for the de- jury its verdict returned verdict Govern- fendant. After “business,” “The term used in judgment n. o. v. motions ment’s section, business, pro- this fession, includes denied, and trial were for a new calling occupation, and judgment upon the ver- court entered every kind.” appealed to Government then dict. The Prior to the enactment in this court. long statute there had been a common- jurors’ seem from conver- exception law rule ex common-law judge they sations trial cluding hearsay per under which it was expressed their interest in the condition missible to admit business records into stringpiece evidence; fact, and their interest there had sev been exceptions Matthews had said about the eral such but with different day event, accident the unavailability after the requirements application. that the for their See jury Maguire, Note, Gordon’s 56 Harv.L.Rev. 462- corroborating Though (1942). hearsay, Matthews undoubt- business edly prejudiced the Government’s case. pre records were believed to Therefore, the issue before us is pared by whether methods and under circum district court was correct in revers- stances that them more trust ing itself after all the worthy hearsay, evidence had been than other and therefore excluding closed and then safely records could be admitted jurors they never asked never knew that the statement day piqued curiosity that Gordon after their that had Matthews Washington. report. accident and sent to was attached to fact. sonally tending prove the recorded. into of the occurrence give Unfortunately, truth- the statute failed transaction recorded without the questions testing specific affecting provided to number of cross-examination answers admissibility keeper independent the records. maker or Among exceptions of records. questions these unanswered But common-law these question hearsay had never was the before us records now exclusion of by so for a memorandum circumscribed decision: Whether theless many so become confusing employer requires an petty limitations be made extremely personal lawyers that resulted in found occurrence often ordinary get injury is made in the a memorandum their clients’ difficult to regular course of the em- See of business evidence. business records into Wigmore, 1940). (3d ployer? ed. Evidence 1520 Bonding Ins. Co. & Massachusetts policy of the statute The broad F.2d Norwich Pharmacal bring admission was to the rules 1927). ad To facilitate 937 Cir. writings, rec into evidence of business by reduc of business documents mission ing nearly into ords and memoranda more confusing which restrictions by line with standards relied law, which existed at common and making deci businessmen business admission, hampered a committee their Wigmore, op. of sions outside court. 5 legal aus under of in 1927 scholars Morgan supra, 1530a; et cit. at see § al.. pro pices Fund apparently of the Commonwealth Proposals Law of Evidence—Some The posed relatively brief and (1927). for Its Reform stat xxi “The above, provid simple ing forth statute set bring designed ute to the realities admissibility into evidence for the practice professional of and business into memoranda, writings, rec of certain ”* * * the courtroom in usable form purpose ords therein described York, R., N. H. & H. R. 191 Korte v. New tending prove that to the fact 86, denied, (2 Cir.), F.2d 91 cert. 342 having place as taken noted therein 868, 108, U.S. S.Ct. 652 72 96 L.Ed. adopted place. did states take Several (1951). Since the Government in order statute, suggested 1936 Con the gress injured provide compensation to for its Federal Business enacted day reports employees every relies on amended, Act, 1561, as Stat. Records 49 forms filled purpose, on it furnishes (1958). 28 1732 § U.S.C. seem that should it would we purposes hold under be admissible of the the stat One away if do 28 U.S.C. 1732 we are be consist ute with the common-law policy with overall prerequisite to ent of the statute. business admission a party a call the record that entrant as Moreover, language statute, record, or, if authenticate the witness to language, businessmen use that testify, not to call some the entrant did Maguire, supra, 468, supports see at explain why was un one to the entrant report conclusion Gordon’s that should Metropolitan Ettelson v. Life available. beyond dispute been admitted. It is 660, (3 1947); Cir. 164 F.2d Ins. 667 pursuant report that made 1965, Cong., S.Rep. 2d 1 No. 74th Sess. regular procedure, that Gordon made the 2357, Cong., (1936); H.R.Rep. No. 74th reasonable time within a after the McCormick, (1936); Evidence Sess. 1 2d accident, the entrant and the 289, (1954). explicit 290 The statute §§ duty were under a to make informants ly the other some of uncertain dealt with report. busi had sometimes excluded a ties that Supreme evidence, But the Court Palmer and further v. ness from record Hoffman, 109, 477, though that, 318 U.S. 63 record would S.Ct. provided weight (1943), admissible, L.Ed. has instructed be accorded 87 us be requires more lack of that the statute than the affected knowl it would be edge ordinary per- the record business sense of its words maker of require in- requires. There us to hold would indicate that must admissible in upheld re this action. court’s a district keeping remembered that an accident fusal report admit into evidence record, railroad even most the defendant offered routine, advantages recordkeeper prepared one engineers. litigation the event The Court con do locomotive arises. We in not re- cluded was not understand Palmer Hoffman to regular quire “the of business” of course exclusion evidence of all pre report was records which templation railroad because the pared not some with con- systematic might they “for the conduct be valuable in 113, litigation. the event policy business as a business.” Id. at Since the language S.Ct. at Instead the Court said Federal Business report’s utility “primary support admissibility in liti Records Act [was] 114, railroading.” gating, the prepared Id. at excluded and since it was not Obviously primarily 63 S.Ct. at a view the litigation likely un- Court was concerned about between the Government and pier owner, trustworthiness of materials we hold that the district litigant specifically prospective court was in when error it excluded the report. courtroom use. See Pekelis v. Trans Inc., & W. F.2d continental Air. Moreover, purpose behind Cir.), denied, cert. U.S. the Federal Business Act is Records (1951). S.Ct. L.Ed. 1374 permit the introduction into reports in substitution for the actual of Garcia's testimony in persons making of court the utility primary from has a different reports. the Wigmore, op. See 5 cit. su re found the which the pra, Here, Gordon, the maker had. port Hoffman to have in Palmer v. report, was on the stand and testi required order report was in person. fied in report After the supervisor’s accompany report have a government admitted into evidence coun compensation Garcia’s formal claim to sel did interrogate not Gordon, further Federal under the from the Government and the testify witness did not Employees’ Compensation Act, U.S. content of reported. what had How (1958). statutorily re If C.A. this 774§ ever, he was subject available and eye quired report prepared with an were credibility cross-examination. His the litigation, been in con to templation it would have report trustworthiness could against by aof suit inquired have been course, into. Of might report the Government. Gordon’s happened view later defense holding in the inadmissible under counsel was taking trial-wise not ad upon the Palmer v. Hoffman trial vantage of opportunity but never action, preparation an the because theless Therefore, present. the opportunity was might litigation report in mind with that posture the trial case unreliability give the indicia of quite dissimilar pos from the trial might a the issues such by suit ture of those cases where the is injured em raise. the But action sought to be independently introduced against Government, ployee based as without a witness-stand identification of been claim have on a stat byit its actual maker. utorily compensation pay fixed award regardless always Moreover, permissi able fault on the him judge part anyone, would have is ble for federal trial comment involved evidentiary jury sues involved in far different to the any on the worth those by Here, present after Gor action Government item of evidence. against don, report, pier owner, had based on a claim the maker of the iden his, negligent. pier then owner tified the Therefore, into Palmer admitted evidence v. Hoffman does not had been Palmer v. proving fact of Korte doubted whether the purpose of reports de- Hoffman rationale extended had therein the occurrence Regard- by independent tailed, not have doctors. trial court should jury’s this, less of Korte stated that report from court excluded the later holding Pekelis, where it rest doubted could on If the court consideration. by reports reliability held that offered of Gordon’s party party whom jury un- adverse to the should warned reports hearsay prepared admissi- were were but admissible cross-examined ble. testi- reliable than evidence is often less mony open court. The recent decision court of this con examination, cerning us, Pug deci- Upon cursory the issue now before gioni interpreting im- of our court Steamship sions Luckenbach (2 Records pact 1961), the Federal Business F.2d Cir. was an unsea may brought appear worthiness-negligence inconsistent to be Act case longshoreman inspec- shipowner. reached here. Closer the result holdings previous discloses our district court had tion refused to admit an but in accord. are not inconsistent are accident offered the defendant prepared Luckenbach which had been & In Pekelis v. Transcontinental W. third-party & defendant Turner Cir.), Inc., F.2d cert. Air. Blanchard, Inc., stevedoring concern denied, 951, 71 341 U.S. S.Ct. plaintiff for which the worked. We re (1951), L.Ed. we held that dis grounds versed the district on court refusing trict court was erroneous relevant to the Federal Business Records plaintiff's offer of certain acci admit remanding Act. But since the court was reports up prepared dent boards set the case to the lower for a new investigate by the airline to defendant trial, district court was advised airplanes. crash of one defendant's the retrial it could admit into interpreted the We decision Palmer reports reports by persons other Hoffman to exclude v. only offering party than if they when for use in preparation circumstances of their in litigation or when there indicia reports dicated sufficiently that the were of their The Pekelis untrustworthiness. “ * * * trustworthy. pointed out, reports, the court In Central R. R. Co. Jules S. Sottnek against v. interest were the of the entrant * * * (2 1958), Co., de made, 258 F.2d 85 Cir. clearly cert. when part not 913, 588, nied, L.Ed. story up 359 79 3 U.S. S.Ct. of cooked in advance of (1959), upheld litigation disguise we of 2d 574 admission in the of rec report prepared by a fire marshal ords” and were offered as evidence investigation of party opposing his the waterfront fire the the which one in We held resulted that lawsuit. which prepared. had the 187 F.2d at or since fire marshal testified the merely ally, report was prepared his York, & Korte v. New N. H. H. testimony, and since cumulative of R., (2 Cir.), denied, 86 191 F.2d cert. R. objected appellants had not to his tes the 868, 108, S.Ct. U.S. 72 96 L.Ed. had, fact, timony, the in called other but case, (1951), the another accident dis investigating their fire marshal as own admitted certain trict court had doctors’ witness, they could obtain a reversal not plaintiff, reports, the offered report had been admitted. because the prepared request at the of had been holding Thus, in is not case We railroad. affirmed the defendant dis contrary position now taken. Again, pointed court. we trict Appeals of for Third Hoffman The Court decision in Palmer v. Pittsburgh-Des Moran v. of the admission hear Circuit directed litigious say 183 F.2d 467 Cir. Moines Steel for 1950), self-serving similar to the one purpose. issue The court in decided 574, pressed L.Ed.2d Puggioni still further case now Moran before us. In the Cir., Co., 2 district v. S.S. Appeals Luckenbach reversed of by 286 F.2d 340. But submit offered I court’s exclusion of a gives power. statute him plaintiff, of no such the Bureau Department Mines States of the United of true that one accused where Bureau’s on that Interior based negligence ex- active a statement investigation gas tank Cleveland culpating litigation, himself, for use in Pointing out that disaster of 1944. to hold this Court declined statutory charged Bureau duty with ordinary made in course appel- reports, Hoffman, Palmer business. 318 U.S. v. late that case concluded 109, 477, 645, A.L. 63 S.Ct. L.Ed. preparation was within R. 719. But as we have occasion as that term “business” the Bureau point wholly out, exception this was a Rec- was used in Business the Federal giving case al and should not be taken as case, Similarly, present ords Act. in the judge general power en exclude charged by statute questions substantially tries he and thus similarly, duty and, make a destroy value and convenience part Navy’s “business” of this remedial Our discus statute. to be made. holdings sions and in Pekelis v. Trans Cir., judgment Air, Inc., court is continental & district Western 122, fur- 1349, 187 F.2d reversed and the cause remanded 23 A.L.R.2d certio proceedings ther inconsistent rari Air, not denied Transcontinental & Western opinion. Pekelis, 951, this Inc. v. 341 U.S. 71 S.Ct. 1020, 1374, 95 L.Ed. and Korte New York, Co., Cir., N. & H. H. R. 191 F.2d Judge CLARK, (concurring). Circuit 86, York, certiorari denied New N. H. judgment I concur in reversal Korte, & H. R. Co. v. 342 U.S. Judge and in the over-all conclusions of S.Ct. fully 96 L.Ed. sustain and reasoned WATERMAN’S careful this conclusion. not feel I do that we judgment opinion. my But in the stat- gloss- properly support can statutory merely permits, ute 28 U.S.C. 1732 es, advanced more or less dicta, in the requires, but reached that the result be Puggioni Central R. Co. and cases cited directly fashion. more less labored above. scholarly distinguished pro- For the legislation ponents foresaw Judge MOORE, (concurring Circuit type problem provided answer result). itself, 11other in the statute that “[a] amI in accord with the reached, result making of such of circumstances namely, there should be a new trial. writing record, including per- of lack or my opinion, however, In sary it is not neces- knowledge maker, by the entrant or sonal upon or pass advisable to the ad- weight, may its but be shown to affect report missibility of Gordon’s in ad- shall not its such circumstances admissibility.” affect vance of a new but trial since the ma- Here [Italics added.] jority has chosen time at this to declare application clearly a seems case admissible, report that the is I feel con- principle. explicit of basis What why strained to set forth the reasons I regular holding judge a for a has trial on the facts believe before us that involved, by report as is here report provi- is under inadmissible litigation, party to person not a to a of sions 28 U.S.C.A. 1732. Presumably is act- inadmissible? be every paper untrustworthy ing Not it is because thinks admissible in evi- merely meaning statutory gloss printed because is a of the dence within form space suggested writing for in Central R. Co. v. Jules S. which contains of categories 85, printed Cir., 2 258 F.2d certio to answers various or Sottnek age 588, questions. 913, This an 79 S.Ct. denied U.S. rari printed re- of out of mentioned in said tens matter must be

form which there investigation” port (45 government daily by U.S.C.A. § thousands in use 41). legislation ex- superimposition “That reveals an and business. But the Congressional policy rule out printer’s plicit white upon sheet change ink a certainly have self- of accidents paper thereby which a does great objectivity regular-course- serving claim into a declaration sought be on the In statement present admitted report of-business under § p. 115, (318 words, analysis case” 63 S.Ct. U.S. circum- some 481). p. pre- report was stances under which pared purpose must and its function and Puggioni, supra, this court said whether made in order to determine v. “this Palmer circuit has construed rules it is under fundamental admissible give judges Hoffman to trial discretion Supreme The Court evidence. determine whether the circumstanc- 109, Hoffman, Palmer v. 318 U.S. surrounding reports made es 477, (1943) and this S.Ct. L.Ed. acceptance justify in evi- others their Puggioni S.S. court Co., Cir., v. Luckenbach (286 344) p. dence” F.2d Sottnek 340, 1961, and Cen- F.2d said, judge exercise cau- “The trial must Cir., Sottnek, 2 tral R. R. Co. of N. J. v. tion to be offered sure that document 1958, 85, U.S. 258 F.2d cert. den. 359 prob- under this statute has an inherent 574, 79 S.Ct. 3 L.Ed.2d p. ability of trustworthiness” F.2d not to definitely that form is indicated 88). quite These statements are incon- prevail substance. over holding sistent here that with- giving judge oppor- to the trial Hoffman, supra, report In Palmer tunity issue, pass upon critical engineer of the had been made by appropriate cri- untested causing train the accident. The evidence. teria be received in shall on the The excluded trial. in so affirmed the exclusion and analysis What does re- principles applicable doing certain stated steward of veal? Gordon was chief case, company In that the railroad here. sought Garcia, injured the vessel on which employee's use its member, was waiter and was Gar- crew case, liability; in this exonerate it superior. immediate It was Gor- cia’s government employee’s offers its re- duty don’s that Garcia liability. As port to to the re- establish injured. employee not an Doug- engineer, port Mr. Justice part and it was not of the defendant company said, the fact las “But his duties or even for defendant recording out of business makes a investigate government to re- or to employees’ of their accidents versions port cause of accident. put statements in the class those does not Parenthetically, factual is no basis there regular ‘in the course' records majority opin- assumption meaning within the that, statutorily required re- ion “If this p. p. (318 U.S. 63 S.Ct. Act” the 480). eye port prepared with to liti- contempla- gation, have been argument appellant advan- tion of a suit accept, namely, not majority The Government was that Government.” es and the charged reg- of, responsible for the con- by and owner or statute was Gordon making of, pier. report report was sole- is com- dition The ulation recording ly purpose for Garcia's Court pletely answered points injury. cause was not to determine out wherein in Palmer majority immediately Congress imposed rec- fault. The or has that where ognize pointing reports and has also said this distinction duty against Gov- not “admitted that a Garcia should be suit that such any on a claim purpose ernment “would have been or used for as evidence damages growing statutorily compensation fixed for a for or action suit regardless payable may facts and to him well award circumstances which of fault sup- anyone” upon admissibility part (emphasis bear on under § even Thus, agree plied) and have it “would I cannot concedes from those should issues far different in advance of a new trial involved report admissible, hold present action thus involved in the be and against owner, pier quite reach result Government at variance with Puggioni. pier Sottnek owner was and based on a claim that the only negligent.” purpose Thus, since the report was record the fact injured, rea- there no been report would be son to believe that trustworthy particularly im- account of (immaterial report) facts material presence ice snow on

such as pier. UNION, INTERNATIONAL UNITED AUTOMOBILE, AIRCRAFT, AND AG- report, doubt There can be no RICULTURAL IMPLEMENT WORK- by Garcia to if submitted AMERICA, AFL-CIO; ERS OF government of claim statement UAW, AFL-CIO, Local No. Appel- injuries, compensation would lants, the de- have been inadmissible if he had written therein fendant CARDWELL MANUFACTURING COM- was snow and the cause of PANY, Appellee. on ice been allowed to remain which had No. 6926. along pier. the walk the side clearly would been self-serv- have United Appeals States Court of ing. Tenth Circuit. sought report, May if intro- by plaintiff liability duced establish pier, the condition of the because self-serving. equally However, could have been used on the when stand to Thus, refresh recollection. the error prejudice plaintiff

committed to the admission of followed by its exclusion after the trial was over. received, plaintiff’s

Once rely

counsel was entitled upon its re- ceipt in evidence assume that purposes, to him available for all in- cluding reading exhibiting it to the jury during trial and summation. reason, For may well have decided press Gordon further as to such knowledge,

personal any, might if concerning have had conditions on the stringpiece using to refrain from to refresh his recollection. But

just plaintiff’s deprived counsel was opportunity also, use the so holding now to be admissi- ble, deprived is defendant’s counsel any opportunity inquire into all the

Case Details

Case Name: United States v. New York Foreign Trade Zone Operators, Inc.

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 20, 1962

Citation: 304 F.2d 792

Docket Number: 21, Docket 26883

Court Abbreviation: 2d Cir.