# Wingate v. Emery Air Freight Corp.

> Massachusetts Supreme Judicial Court · March 2, 1982 · 385 Mass. 402

URL: https://www.frixlaw.com/law-library/cases/9521287

## Case

- **Full name:** Donald A. Wingate vs. Emery Air Freight Corp.
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** March 2, 1982
- **Citations:** 385 Mass. 402; 432 N.E.2d 474; 1982 Mass. LEXIS 1303
- **Precedential status:** Published
- **Opinion:** Concurrence by Liacos
- **Judges:** Hennessey, Liacos, Abrams, Nolan, Lynch
- **Cited by:** 71 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9521287

## How later opinions describe it (automated extraction)

- holding that personal knowledge affects only weight of business records evidence not the admissibility

## Opinion text

Liacos, J.
(concurring). I agree with the result reached by the court in this case. While I agree also with the reasons stated by the court, a few additional words may be helpful to a fuller understanding of the statutory business records exception to the hearsay rule.
When a document is offered as being within the hearsay exception created by G. L. c. 233, § 78, it is important to keep in mind that there are apt to be two major problems to be faced in determining its admissibility. The first question is whether the writing itself qualifies as a “business record” within the terms of G. L. c. 233, § 78. Certain preliminary findings must be made by the trial judge before this first obstacle to admissibility can be satisfied. See Household Fuel Corp. v. Hamacher, 331 Mass. 653 (1954). Cf. Bouchie v. Murray, 376 Mass. 524, 527-528 (1978) (dealing with G. L. c. 233, § 79, pertaining to the admissibility of hospital records). P.J. Liacos, Massachusetts Evidence 330 (5th ed. 1981). It is clear that unless the writing qualifies as within the “business records” exception to the hearsay rule, neither it nor anything contained in it is admissible.
If the first obstacle to admissibility is overcome, then and only then, does the second question possibly arise. That question is whether all or only some of the material and information contained in the document qualifies as being within the scope of the statutory exception.
To illustrate these preliminary points by way of example, a document would not be admissible under G. L. c. 233, § 78, if it was not made “in good faith . . . before the beginning of the civil or criminal proceeding” in which it is offered. *409 Contrast Fed. R. Evid. 803 (6) which has no such requirements. Failure of the proponent to satisfy these prerequisites to admissibility (among others) would mean the document fails to qualify on the first level of inquiry. On the other hand, a document which qualified as a business record would not be admissible to establish a statement of opinion contained in it. Julian v. Randazzo, 380 Mass. 391, 393 (1980). Contrast Fed. R. Evid. 803(6) (opinions in business records are admissible). This is true because, even though the document may otherwise be admissible, that portion of it containing the opinion statement is not. Thus, at the second level of inquiry, the statement of opinion, at least, would have to be excised.
In my view, the problem the court addresses (as to the source of the information in the business record) goes to the second question, not the first. Although I agree with the court’s statement (supra at 404 n.3), that the issue has not been briefed, I believe it would be helpful to point out that the report offered here did not qualify, at the threshold, as a business record of the workmen’s compensation insurer. 1
General Laws c. 233, § 78, provides for the admissibility of a record “made ... in the regular course of business” where it is shown that “it was the regular course of such business to make such memorandum or record” (emphasis supplied). The insurer did not “make” this record, it simply received it. The significance of this distinction is found in the historical background of the enactment of G. L. c. 233, § 78, and comparable statutes in other jurisdictions.
The common law rules of exception to the hearsay rule regarding business records were wholly inadequate to meet the needs and realities of a modern industrial and commercial society. 5 J. Wigmore, Evidence §§ 1521, 1522, 1561a, 1561b (Chadbourn rev. 1974). Wigmore stated well the reasoning that led to the enactment of statutes such as G. L. *410 c. 233, § 78. Such statutes were enacted as a consequence of judicial inability to reform the strictness of the common law rule.
Speaking of business records Wigmore wrote: “Such entries are dealt with ... in the most important undertakings of mercantile and industrial life. They are the ultimate basis of calculation, investment, and general confidence in every business enterprise. ... It would seem that expedients which the entire commercial world recognizes as safe could be sanctioned, and not discredited, by courts of justice. . . . The merchant and the manufacturer must not be turned away remediless because methods in which the entire community places a just confidence are a little difficult to reconcile with technical judicial scruples on the part of the same persons who as attorneys have already employed and relied upon the same methods. In short, courts must here cease to be pedantic and endeavor to be practical.” 5 J. Wigmore, supra § 1530, at 452.
The courts did not, as a whole, respond to Wigmore’s plea, but legislatures did. Keeping the object of such legislation in mind, it is clear that business enterprises rely on records they make to the extent those records reflect, as the court points out, information based on personal knowledge of its own employees who have a business interest to report accurately. The injury report received by the insurer has none of these indicia of reliability. Hence, it is not a business record admissible by virtue of G. L. c. 233, § 78. 2
am authorized to state that the other members of the quorum, including the author of the court’s opinion, join in the views expressed in this opinion. They believe, however, that such views need not be included in the court’s opinion because the issue was not briefed by the parties.
Whether it would be a business record of the plaintiff’s employer is not before us because it was not offered or received as such. Whether it would be inadmissible in any event by virtue of the privilege stemming from G. L. c. 152, § 19, see Gerry v. Worcester Consol. St. Ry., 248 Mass. 559 ,-566-567 (1924), is a question we need not reach. Nor do I make an implication that reports pertaining to accidents are generally inadmissible as business records. See Julian v. Randazzo, 380 Mass. 391, 394 (1980); Commonwealth v. Walker, 379 Mass. 297, 302 (1979); Kelly v. O’Neil, 1 Mass. App. Ct. 313 (1973). As the court points out, if the report is assumed to be a business record then second level hearsay contained in it would still be inadmissible unless a second level exception to the hearsay rule is found applicable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9521287. Public record. Not legal advice.