The opinion
GANEY, Circuit Judge
(dissenting).
I dissent.
The question of admissibility of the document in question concerns itself solely with page 1. Page 2 thereof is an admitted authentic statement of the facts therein stated, since the plaintiff states that the signature at the bottom thereof is his, and there is no objection to its admissibility, which leads to the question here posed, as to whether page 1 was admissible likewise, which contained on it the initials of plaintiff.
I am agreed that there is a dearth of authority as to whether or not multiple page statements, such as obtain here, signed on the last page thereof, make the entire document admissible. However, this lack of authority, it seems to me, stems from the fact that it involves a question of evidentiary proof, which is neither novel nor new, by reason of the fact that courts, in construing the law of evidence over many years, have evolved certain procedural rules which are fairly common.
The cases cited by the majority, two in number, it seems to me are in no way apposite of the question here posed. In Prevost v. United States, 149 F.2d 247 , relied on by the majority, the typewritten *693 statement was signed by the defendant and that portion of it was admissible, but the caption on the paper which had a line under it, that is between it and the statement itself, was held inadmissible, as the witness on the stand said he had never read it and, as a matter of fact, had never seen it until it was presented to him in court. Here, the plaintiff stated that he had read both pages 1 and 2 and that they were true and correct.
In Andrews v. Hotel Sherman, 138 F.2d 254 , a registration card of the hotel, though signed by Andrews, showed admissions which were advantageous to the appellant and was offered by it in evidence. However, there was no showing that Andrews had either placed it there or had really read the contents thereof, so the court rightfully excluded it from the jury’s consideration. However, later Pennsylvania cases, such as Geelen v. Pennsylvania Railroad Company, 400 Pa. 240 , 161 A.2d 595 , 91 A.L.R.2d 1 , hold that where the testimony shows that the witness testified that after reading the statement, she unequivocally stated that it was a correct statement of the facts and that she had told them to the person who wrote them down, and there-was nothing contained therein which was incorrect, made the writing admissible, and it was unnecessary to call the scrivener to the stand and prove the making or the execution thereof. This demonstrates clearly, in my judgment, that the courts of Pennsylvania hold that where there is no denial of the statement on a page and the witness admits to the content thereof, as well as the signature, that the document is admissible, without calling the scrivener, which is exactly the situation of page 688 herein. To the same effect is Beardsly v. Weaver, 402 Pa. 130 , 166 A.2d 529 .
We therefore start out with the unquestioned fact that page 2 is an authentic statement of the facts therein contained. Proceeding to page 1 of the document, which is initialed, the witness was asked on the stand whether his statement that his left hand slipped off the meat while he was cutting it on a stationary meat cutting machine was true or false, and he stated that it was false, although he stated later on, when asked whether page 2, which he had signed, was a continuation of page 1, he answered that, “It looks like it to me, that’s right, although these are not my initials.” (Emphasis supplied.) Again, later on, when the question was posed to him, “According to this one would go into the other. And you signed page 2, which is part of page 1 ?”, and his answer was, “I would say so.” (Emphasis supplied.) This, it seems to me, can readily be construed as a fact that pages 1 and 2 were part of the same document or, at most, that it was a question of fact for the jury.
In re Haydu, 105 F.Supp. 859, 860 , concerned a financial statement to a bank which was offered in evidence and the bankrupt admitted that he had signed the paper but alleged that the statement therein was false. However, the referee admitted the statement and held that it was up to the maker, the bankrupt, to call the person who prepared the facts contained therein in order to show the falsity thereof. This holding, while not one covering a multiple page instrument, is that the signer of an instrument alleging the contents are not his, is put to calling the person who prepared the facts therein, to prove the contents, that the facts were falsely placed thereon, in effect, that he who alleges fraud must prove it and, therefore, is in full accord with the position here taken. The mere denial of his initials on page 1 and that the statement on page 1 was false, is insufficient, in my judgment, to render the instrument inadmissible as a matter of law.
Furthermore, Rule 43(a) of the Federal Rules of Civil Procedure 1 holds that *694 in case of any conflict the rule that would admit the evidence should apply.
In my judgment, the fact that page 2 is an authentic statement by the plaintiff; that the statement therein said he had read pages 1 and 2 and they were true; that the document shows continuity of expression between pages 1 and 2; that the plaintiff himself said that one page went into the other and that he had signed page 2 which is a part of page 1, raised a presumption of genuineness of the document and presented a prima facie case, for validity thereof, which was not rebutted by a mere allegation of falsity. On the basis of the factual elements here, with this showing above made, by the defendant, it placed the burden of going forward — not the burden of proof — on the plaintiff to show that page 1 was fraudulent and, not having done so, the resultant statement in the document that page 1 was true, and its denial by the witness, raised a question of fact for the consideration of the jury.
Contention is made by the appellant that the question asked, whether the statement he had made on page 1 was true or false, was one which posed a very narrow issue to the plaintiff and that whatever ambiguity resulted therefrom was due to the narrowness of the question posed by the defendant. The simple answer to this is that the plaintiff’s counsel could have taken the witness back and broadened the horizon of his inquiry to whatever limits he sought since the defendant, by asking the question, opened the door as widely as possible.
I am of the opinion that the submission of the document to the jury to determine the factual question therein involved was a correct one and I would, accordingly, affirm the judgment of the lower court.
. This rule, in pertinent part, reads as follows:
“Evidence (a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence *694 applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner.”