286 F. Supp. 583 | Cust. Ct. | 1968
Lead Opinion
These protests, which were consolidated for trial, involve certain moldings and frame sections having wooden cores and metal exteriors. The imports were uniformly assessed with duty by the collector at a rate of 19 percent ad valorem under paragraph 397 of the Tariff Act of 1930, as modified, as articles in chief value of
There is, of course, a presumption that the collector found every fact necessary to sustain his classification. E.g., E. I. du Pont de Nemours & Co. v. United States, 27 CCPA 146, 149, C.A.D. 75 (1939); United States v. Marshall Field & Co., 17 CCPA 1, 5, T.D. 43309 (1929). Plaintiff sought to overcome this presumption by establishing that the articles are, in fact, in chief value of wood. Its sole proof of this at trial consisted of responsive answers to two interrogatories (i.e., interrogatories 10 and 11) it had propounded under a commission to an official of the company that had manufactured and exported the articles in question. At an earlier stage of the case, when the interrogatories to be propounded to this witness had been filed with the court and a copy served on defendant, the latter had interposed no objection to them; however, at the trial, defendant indicated for the first time that it had certain objections relating to the substance of the interrogatories and the answers thereto.
As to the first issue, the background facts are these. In April 1963, plaintiff filed a motion pursuant to our rule 21(a) for the issuance of a commission to take the deposition in Stuttgart, Germany, of one Gercl Simon, an employee of the manufacturer-exporter, regarding the component material of chief value.
The commission and interrogatories were forwarded to the American Consulate in Stuttgart and on October 9, 1963, Schock appeared there before a consular officer to give his deposition. In response to the
10. If the cost records * * * [covering the merchandise in issue] were kept either by you personally or under your supervision will you please state if said records indicate the actual cost, in the eurency of purchase, of the wood component material and the metal component material of the molding exported to U.S. Industrial Products Corp. as of the time when nothing remained to be done to said materials except to join them together into the finished product ?
A. Yes, but in D-Mark, not in US $; calculated in D-Mark, charged in US $; the main thing here is whether just the costs are clearly evident, and that is what they are.
11. If your answer to question “10” is in the affirmative please indicate, with respect to items shipped to the said U.S. Industrial Products Corp. during the period June 15, 1959 to December 31,1960, what your records disclose as to the actual cost of the wood component material and the actual cost of the metal component material in each item of molding having a wood cost in excess of the metal cost. In supplying this information be sure not to include any item—
(a) in which the cost of the metal component material exceeds the cost of the wood component material, or
(b) which is composed in part of any material in addition to wood and metal.
Also, please use the following headings in furnishing the information required by this question:
Schock Invoice
No. Date Item Cost of Wood Cost of Metal No. Component Component
A. I am not able now to give the different items, but I am willing to give a list of all these different invoices and profiles according to the above scheme in the years as indicated in the ques*623 tion. It will take about two weeks. If I bad known that you want the different figures, I had brought them with me.
On February 27, 1964, Scliock again appeared before the consular officer in Stuttgart and submitted under oath a written schedule of the different items of molding and frame sections, composed only of wood and metal and in chief value of wood, shipped to plaintiff from June 15, 1959, to December 31, 1960. The schedule covered 113 items of moldings and frame sections, each identified by both a code and invoice number, and listed for each such item the actual cost of the wood and the actual cost of the metal, in the currency of purchase (deutsche marks), at a time when nothing remained to be done to the component materials except to join them together.
We consider now defendant’s motion to strike this evidence, starting with its first objection that “plaintiff has failed to satisfactorily and adequately establish that * * * [Schock] had sufficient personal or specific knowledge of or definite factual familiarity with, the imported articles, their construction, and the costs of the metal and wood components from which they were produced, at the time when nothing remained to be done to said materials except to join them together into the finished product as imported.” This objection is clearly without merit considering that Schock’s deposition disclosed without contradiction (i) that he was responsible for general supervision of the entire plant and its sales; (ii) that the shipments were manufactured under his supervision; and (iii) that the cost records covering the merchandise were kept under his supervision. To be qualified to testify about business records, it is not necessary that the witness have personally prepared or examined each record; it is sufficient if the witness had supervision of the records. American Express Company v. United States, 30 Cust. Ct. 333, Abstract 57048 (1953); United States v. Mortimer, 118 F. 2d 266, 269 (2d Cir. 1941); Massachusetts Bonding & Ins. Co. v. Norwich Pharmacal Co., 18 F. 2d 934,
Defendant’s second objection is that the evidence is hearsay -which does not fall within the exception provided by the Official Records Act, 28 U.S.C. § 1732, for business records made in the regular course of business. Its argument is that plaintiff has failed to lay a proper foundation for the evidence by producing the cost records and showing that they were made in the regular course of business. We find it unnecessary, however, to decide this question since, as is discussed below, the objection is untimely in any event and has, therefore, been waived.
The principles involved are well established. At the outset, there is a basic distinction between an objection to a question and a motion to strike testimony — a distinction which stems from the fact that an opponent is required to make an objection “as soon as the question is stated, and before the answer is given; unless the inadmissibility was due, not to the subject of the question, but to some feature of the answer.” 1 Wigmore, 323. [Emphasis quoted.] The object “is to prevent a party from knowingly withholding his objection, until he discovers the effect of the testimony, and then if it -turns out to be unfavorable to interpose his objection. Such a course could not be allowed.” Marsh v. Hand, 35 Md. 123, 127 (1871). Put otherwise “[a] party will not be' permitted to speculate as to what the testimony will be, and then move to strike the answer if not to his liking.” Lambert v. United States, 26 F. 2d 773, 774 (9th Cir. 1928). In these circumstances a motion to strike an answer which is responsive to a question and which ought to have been objected to at the time the question was asked is in reality an objection to the question and comes too late. See 1 Wigmore 325, 331-32; State v. Forsha, 190 Mo. 296, 88 S.W. 746 (1905); Sanger v. Bacon, 180 Ind. 322, 101 N.E. 1001 (1913). On the other hand, where the question is unobjectionable, but the answer is nonresponsive, a motion to strike is appropriate. 1 Wigmore 325, 332. In that situation, since “the question did not reasonably call for the answer given, the opponent could not be blamed for failure to anticipate it.” Ladd, Objections, Motions and Foundation Testimony, 43 Cornell L.Q. 543, 557 (1958). Thus, “[t]he difference cannot be overlooked between unresponsiveness as a ground for a motion to strike * * * and its use * * * only as an excuse for 'having failed to interpose a timely objection to the question when asked. Ibid. See also McCormick On Evidence (1954) 115-16; Jones On Evidence (5th ed.) §§ 975, 979.
As to interrogatories for the examination of witnesses, the general requirement (in the absence of a statute or rule to the contrary) is
Our rule 21 (f) obviously incorporates this requirement providing, as it does (see note 6, supra),{i) that interrogatories for the examination of witnesses under a commission “shall be filed with the clerk of the court and a copy served upon the opposite party * * *,” and (ii) that objections to such interrogatories “shall be filed with the clerk of the court and may be passed upon by the judge or division of the court having jurisdiction of the subject matter, or may be filed with the papers and passed upon at the trial.” The rule is manifestly designed to provide notice of possible evidentiary shortcomings so that they may be remedied before trial; the filing requirements of the rule would be meaningless otherwise. This is to say that when an interrogatory for the examination of a witness under a commission is filed with the court pursuant to rule 21(f), an objection to the interrogatory must be interposed promptly, if the ground of the objection is such as might be obviated or removed before trial. Nor is a different result required by rule 21(g) which provides that “[t]he answers of each witness under oath to * * * [the] interrogatories shall be in writing and subscribed to by said witness * * * [and thereupon] the com
What remains is to apply these principles to the facts of the present case. In the first place, it is apparent that the cost schedule which Schock submitted was responsive in toto to the eleventh interrogatory. For that interrogatory requested him, in essence, to fill in certain columns of figures under certain designated headings based on information contained in his company’s cost records — which is what he did. The question having reasonably called for the answer given, defendant’s motion to strike is in reality an objection to the interrogatory itself — not to the answer. But the objection comes too late; in the circumstances of this case, it should have been made promptly after the interrogatory was filed in order to have provided plaintiff opportunity to overcome the claimed defect before trial. Had objection then been interposed to the interrogatory, there is no doubt that plaintiff could have taken the steps necessary to cure the ground of the objection by requiring Schock to produce the cost records and show that they were made in the regular course of business. See Doane v. Glenn, supra, 21 Wall, at 35; Bibb v. Allen, supra, 149 U.S. at 488-89; Beatty Brokerage Co. v. Gulf, C. & S. F. Ry. Co., supra, 17 F. 2d at 481. The point is that “[cjounsel may not withhold objection until he has ascertained whether evidence is helpful or disadvantageous to his case and, if it develops that the evidence is unfavorable, then have it excluded.” American Surety Co. of New York v. Scott et al., 63 F. 2d 961, 964 (10th Cir. 1933) and cases cited. See also Ladd, op. cit. supra,
Plaintiff having shown by that evidence that all the imported articles are in chief value of wood, the last problem is to determine whether it has also proven that the frame sections involved in several of the protests are “mirror frames” under paragraph 412 of the act, as modified, and thus dutiable at 14 percent ad valorem. On this question, plaintiff’s proof at trial consisted of the unrebutted testimony of one of its officials who served initially as vice president and then as president during the period from 1959 to 1960 when the importations in issue took place. The witness testified that during the foregoing period he was responsible for placing all orders for the merchandise in issue, arranging for the entry of the goods through customs, the delivery of the goods to plaintiff and to plaintiff’s customers. He further testified that in ordering the merchandise claimed to be mirror frames, he indicated certain specifications to the manufacturer. Referring to two frame sections in evidence as illustrative exhibits, he testified that both were cut to a specific size to fit the size of a mirror; that both had been mitered;
We hold, in summary, that the merchandise claimed to be dutiable at 16% percent ad valorem is in chief value of wood, and that the articles claimed to be dutiable at 14 percent ad valorem are mirror frames, also in chief value of wood. The protests are sustained and judgment will issue accordingly.
Paragraph 397 of the Tariff Act of 1930, as modified by T.D. 54108, provides:
Articles or wares not specially provided for, whether partly or wholly manufactured:
* * * * * * *
Composed wholly or in chief value of iron, steel, copper, brass, nickel, pewter, zinc, aluminum, or other base metal (except lead), but not plated with platinum, gold, or silver-, or colored with gold lacguer:
*******
Not wholly or in chief value of tin or tin plate:
*******
Other, composed wholly or in chief value of iron, steel, brass, bronze, zinc, or aluminum (except * * *)---19% ad vai.
Paragraph 412 of the Tariff Act of 1930, as modified by T.D. 52373, provides :
Manufactures of wood or bark, or of which wood or bark is the component material of chief value, not specially provided for :
*******
Other (except * * *)-16%% ad val.
Paragraph 412 of the Tariff Act of 1930, as modified by T.D. 54108, provides :
Manufactures of wood or bark, or of which wood or bark is the component material of chief value, not specially provided for:
*******
* * * and picture and mirror frames_14% ad val.
Defendant did not file any cross-interrogatories or present any rebuttal evidence.
Rule 21(a) authorizes tile issuance by the court of a commission “to examine witnesses resident in another country * * * whenever it shall appear to the satisfaction of a judge * * * that the testimony of said witnesses is necessary and important * * * and that the attendance of such witnesses cannot reasonably! be had.”
Rule 21(f) provides: “Interrogatories and cross-interrogatories for the examination of witnesses under a commission * * * shall be filed with the clerk of the court and a copy served upon the opposite party within the time fixed by the court. If there be objections either to the interrogatories or cross-interrogatories, such objections shall be filed with the clerk of the court and may be passed upon by the judge or the division of the court having jurisdiction of the subject matter, or may be filed with the papers and passed upon at the trial.”
Rule 21(g), to the extent relevant, provides as follows: “Such commissions or letters rogatory to take depositions may be issued to an American consul * * * and forwarded within a time set by the court, by the attorney, or applicant, together with the interrogatories and cross-interrogatories attached. The answers of each witness under oath to both direct and cross-interrogatories shall be in writing and subscribed to by said witness. Thereupon the commissioner, or authority to whom letters rogatory are directed, shall return the same to the clerk of the court, through proper channels, and the testimony so taken may be read upon the trial of the case and shall be considered with the same force and effect as though the witness -were personally present, subject to any and all objections as to competency, materiality, and relevancy, which objections may be made at the time said deposition is offered.”
It was further shown by plaintiff at trial that the 113 items covered in the Schock schedule encompassed all the imported articles here in issue.
In this connection, rules 32(e)(1), 32(c)(2), and 32(e)(3) of the Federal Rules of Civil Procedure provide as follows :
(1) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(2) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
(3) Objections to the form of written interrogatories submitted under Rule 31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other interrogatories and within 3 days after service of the last interrogatories authorized.
The Federal Rules of Civil Procedure are, of course, not applicable to the Customs Court. American Mail Line, Ltd. v. United States, 34 CCPA 1, C.A.D. 335 (1946).
A mitered end is one which has been beveled at an angle for the purpose of joining it to another end. See Webster’s New International Dictionary (2d ed.).
A kerf is a slit or notch. IT>id.
Dissenting Opinion
DISSENTING OPINION
I regret that I am unable to concur with the conclusion reached by my colleagues in the instant case. Specifically I
This view does not embody disagreement with the general principles underlying the decision of the majority to the effect that a person under whose supervision records are kept is competent to testify as to the contents of those records, and that an objection to an interrogatory, or an objection to an answer to an interrogatory which is, in reality, an objection to the interrogatory itself, must be made within a reasonable time after the filing of such interrogatory, and is untimely if made at the time of trial.
However, the competency of a witness to testify concerning the contents of books and records kept under his supervision is an expedient developed by the courts to avoid the production of voluminous business data which might otherwise not be readily produced and is in the nature of an exception to the hearsay rule. The extent to which the rule is relaxed is discretionary with the court (see Wigmore on Evidence (3d ed.) 5 § 1530) which would expect such testimony to be clothed with reasonable guarantees of its accuracy and credibility. It is this latter aspect in which I find the deposition wanting, since the witness himself, in his answers to interrogatories 6 through 9, has undermined his own qualifications by making clear that he lacks any detailed knowledge of the facts about which he is testifying.
It seems to me that the cases relied upon by the majority furnish no support for the proposition that, in the facts of the case at bar, the court should exercise its discretion to admit the testimony of this particular witness. In each of those cases, the witness established a relationship to, or a knowledge of, the books and records in question far in excess of that shown by the witness here.
In American Express Company v. United States, 30 Cust. Ct. 333, Abstract 57048, the court found that a witness was qualified to testify about the contents of his company’s records where it appeared that such records were kept under his direct supervision, under circumstances which revealed that he was the grandson of the founder of the business, had been associated with the firm for more than 30 years, had been a partner for about 10 years, and for a period of 7 years prior to his deposition was the sole owner and manager of the company.
In United States v. Mortimer, 118 F. 2d 266, it was held that charts summarizing voluminous records, prepared for trial by the witness, an experienced public accountant, assisted by several aids, were admissible, and that the testimony of the witness alone, who had supervised the entire project, and on whose direction the authenticity of the whole
The court, in Massachusetts Bonding & Ins. Co. v. Norwich Co., 18 F. 2d 934, admitted a tabulation made by the witness, when the only facts not within her own personal knowledge were drawn from records made in the regular course of business and kept in files often used by the witness, and held that there was no necessity to call the clerks who had made the individual notations.
Where business records were produced in court by a company’s chief export clerk, in whose office and under whose supervision the records were made and kept, who had made some of the entries himself, although most were made by clerks under his supervision, some of whose handwriting the witness could identify, the court, in the case of E. I. du Pont de Nemours & Co. v. Tomlinson, 296 Fed. 634, held such records admissible on the basis of this testimony and did not require the production of every person who had made an entry.
A similar result was reached in the case of Northern Pacific Ry. Co. v. Keyes, 91 Fed. 47, where about 50 clerks had been employed in the preparation of the tables presented in evidence. The court found testimony by the heads of departments under whose immediate supervision the work had been done sufficient to render the evidence competent.
In the instant case, the answers of the witness to interrogatories 6 through 9 show that he did not have the requisite personal knowledge, or the direct supervisory position, or the wide scope of experience with regard to the records to bring him within the holdings of any of these cases. He admitted that he had no detailed knowledge of the shipments in issue or of the manufacture of the merchandise, because of the vast extent of the company’s operations, and although he stated that the records were kept under his supervision, he added that they were not kept by him personally.
It is by reason of those answers that I would hold the objection to the answers to interrogatories 10 and 11 to be timely. Whereas the general principle that supervisors are competent to testify concerning books and records kept under their jurisdiction would normally operate to render untimely objections made at the trial to answers in response to questions purporting to elicit such information, as being in effect objections to the questions, where, as here, answers to questions previously posed reveal a weakening of qualifications to support the answers objected to, a different situation obtains. That the answers given to interrogatories 6 through 9 by the witness himself would make clear that he did not possess the necessary qualifications to bring his answers to interrogatories 10 and 11 within the exception to the
Accordingly, it was not until the commission was returned and the answers were read in court that a proper basis of objection was indicated, and when that objection was made, it should have been sustained.
For the foregoing reasons, I would grant defendant’s motion to strike the answers to interrogatories 10 and 11, the effect of which action, of course, would be to strike from the record all evidence relevant to the issue of component material of chief value. Since, however, plaintiff would not have been apprised of defendant’s motion until the time of trial, I believe that the interests of justice would best be served in this case by restoring it to the calendar for additional evidence of this phase of the case.
