Petition for Writ of Certiorari — Terrasi v. South Atlantic Lines, Inc.
Supreme Court brief1956
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JAN 2 7 1986
IN THE
Supreme Court of the United States
OCTOBER TERM, 1955
fe £?
A £3
No. OS ¢
ANDREW TERRASI,
Petitioner,
v.
SOUTH ATLANTIC LINES, INC.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
| Harry D. GranHam,
Counsel for Petitioner.
76 Beaver Street,
New York 5, N. Y.
~ ee ~ .
INDEX TO PETITION
PAGE
Opinions -of the Courts Below eee cece l
Jurisdiction ~ Bis Lana SS OP GB A lie Se NIE Berit 2
Queshon Freeestet 2... Seentiies ieee Socket 2
Statrtes Involved .. i MEER Re ee 2
Statement of the Case Feed LB: $
Reasons for Allowance of the Writ 0. 5
I i ee a rn See 12
CN IIS, io ee eee Ee
CASES CITED
Palmer v. Hoffman, 318 U. S. 109; 144 A. L. R.
719 5, 8, 9, 10
Spellman v. American Barge Line Co., D. C. Penn.,
76 EF. Supp. 1 ~~ 1
Terrasi v. South Atlantic Lines, Inc., 226 F. 2d 823.000. © (2
Williams v. Alexander, 309 N. Y. 283; 129 N. EE. 2d
Fi; SMP TN RNs aia Ate oT ne Nn oN LY EO 2, 5, 9, 11
STATUTES CITED
ederal Business Records Act, 28 U.S. C. 1782a _.W..... 2.3
New York Business Record Act, N. Y. Civil Practice
Aet, See. 374-a .......... + AA aOR: 2,9
OPINION APPENDIX
‘lerrasi v. South Atlantic Lines, Inc., 226 F. 2d 823 13
Williams v. Alexander, 309 N. Y. 283; 129 N. E. 2d 417 18
IN THE
Supreme Court of the United States
OCTOBER TERM, 1955
ee ee wee
ANDREW TERRASI,
Petitioner,
v.
Soutn ATLantic Lines, LNc.,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
Petitioner, plaintiff-appellant below, prays that a writ of
certiorari issue to review the judgment of the United
States Court of Appeals for the Second Circuit in the
above entitled matter.
The Opinions of the Courts Below
The opinion of the United States District Court for the
Southern District of New York (Bondy, D. J.), sitting at
law, upon the motion to set aside the verdict and grant a
new trial is unreported and is printed in the separate
appendix below infra (p. 13a, R. 428).
The opinion of the United States Court of Appeals for
the Second Cireuit (Clark, Medina and Lumbard, C. JJ.,
5 et eh CAGE GRR GATTO DUPER iF RARER TLR AT RE SHEN
sex
2
opinion by Clark, Ch. J.) is reported in 226 F. 2d 828
and is printed herein at page 13.
The conflicting opinion of the New York State Court
of Appeals, Williams v. Alexander, reported in 309 N. Y.
283, 129 N. E. 417, decided October 13, 1955, is printed
herein at page 1S.
Jurisdiction
The decision and judgment of the Court of Appeals for
the Second Circuit sought to be reviewed was entered on
October 31, 1955.
Jurisdiction of this Court is found in 28 U. S. Code,
Sections 1254(1), 2101(¢) and 2106.
Question Presented
Whether a plaintiff's alleged statement, not germane to
diagnosis or treatment, entered ina ship doctor’s purported
journal, where the ship’s doetor is an employee of the de-
fendant and is alleged to be an active tort feasor, is adimiss-
ible in evidence under 28 U.S. C. Sec. 1732a as a memo-
randum or record made in the regular course of business.
Statutes Involved
* “98 US.C.A, 1732(a) In any court of the United States
and in any court established by Act of Congress, any wril-
ing or record, whether in the form of an entry in a book or
* New York Civil Practice Act, Sec. 374-a—The pertinent lan-
guage of this Act which is identical with the language of the Federal
Act is italicized for comparative purposes and the convenience of
the Court.
Although not material variations, where the wording differs the
Federal language is shown in roman type, while the New York
State language is contrasted by italics.
Matter in brackets are variations of the New York statute.
nn a —-
3
otherwise, made as a memorandum or record of any acl,
transaction, occurrence or event, shall be admissible as evi-
dence of such [in proof of said\ act, transaction, occurrence,
or event, if [the Trial Judge shall find that)\ it was made
in [the] regular course of any business, and if |that)\ if
was the regular course of such business to make such
memorandum or record at the time of such act, transaction,
occurrence or event, or within a reasonable time thereafter.
All other circumstances of the making of such writing or
record, including lack of personal knowledge by the entrant
or maker, may be shown to affect its weight, but such eir-
cumstances [they] shall not affect its admissibility.
The term business, as used in this section includes
|shall include) business, profession, occupation, and call-
ing of every kind.”
Statement of the Case
Plaintiff asserted two causes of action (A. 2Za-da, R. 393-
396) against the defendant, the first based upon its negli-
gence and violation of gts duty as a common carrier
resulting in injury to the plaintiff on the high seas and
the second in negligence for abusive treatment by the
ship’s doctor following his injury, based upon the following
facts:
In the early morning hours of May 21, 1950, while on
a trip as a third-class passenger from New York to
’alermo, Sicily, and while ascending a staircase on the
ship from C deck, where his cabin was, to the toilet facilities
on B deck, he was suddenly struck from behind upon his
head by an unidentified assailant and rendered unconscious.
He asserted negligence on the part of the ship in failing
to furnish watchmen to protect the passengers from assault
during the night hours. Defendant denied that it was
negligent and contended that plaintiff had heen seized with
SALES MASALA
4
a fit of dizziness while ascending the staircase and fell,
striking his head.
In his second cause of action plaintiff contended that
some days later, when the ship’s doctor was removing the
stitches from his head, the ship’s doctor inquired as to
how he had met with his injury and when the plaintiff
related the above facts the ship’s doctor threatened to
place him in a strait jacket for the balance of the trip if
he repeated those facts about the ship.
The issues came on for presentment to a jury and de-
fendant, during the course of the trial, offered its Exhibit
G (annexed to the appendix below) into evidence as proof
of its contention, to which plaintiff objected upon the ground
that the same was incompetent and self-serving.
Plaintiff denied having made any such statement as con-
tained in the exhibit.
The Trial Court reserved decision and eventually both
sides rested. After settling requests to charge, the Court
suddenly and upon its own initiative announced that it
was admitting Defendant’s Exhibit G into evidence (R.
339a) over plaintiff's objection as proof of “whatever ix
in it” (R. 350), giving plaintiff an exception.
A stipulated translation of Exhibit G is as follows:
“At 6.15, while returning to the cabin on Deck C
(after having been in the toilet on Deck B) was caught
by sudden dizziness and fell on the stairway, striking
his head on steps.
Lacerated, contused wound or cut, six centimeters at
the occipital region, deep to the bone. Fairly accentu-
ated or fairly pronounced shock.”
Within twenty-five minutes after retiring the jury sent
in a note requesting “a translation of the medical log report
please” (R. 388) and Juror No. 2, speaking for the forelady
and jury, stated to the Court that what they would like
to know, or read in English, is
“the doctor’s report or his meaning in English of what
he found from plaintiff when he arrived at the hospital
(ship’s surgery)”. (Emphasis supplied.)
4)
Some eight hours later (R. 392) the jury returned with
a verdict for the defendant upon both causes of action.
Motions to set aside the verdict and for a new trial upon
the grounds that the admission of Exhibit G into evidence
was prejudicial to the plaintiff were denied. There is no
evidence in the record, other than Exhibit G, to support
the contention that plaintiff had had a dizzy spell and
fallen.
The Court of Appeals for the Second Circuit affirmed
the District Court holding that under 28 U. S. C. 1732a
the complete exhibit was properly admissible.
Reasons for Allowance of the Writ
1. The Court of Appeals for the Second Cireuit has
rendered a decision herein in direct conflict with this
Court’s decision in Palmer v. Hoffman, 318 U.S. 109, 144
A. L. R. 719.
2. The Court of Appeals for the Second Circuit has
rendered a decision herein in direct conflict with a decision
of the Court of Appeals for the State of New York on the
precise point in Williams y. Alexander, 309 N. Y. 283, 129
N. E. 2d 417, decided a few weeks earlier, on October
13, 1955.
3. The Court of Appeals for the Second Circuit has
rendered a decision herein in direct conflict with the deei-
sions of other states having identical or similar statutes.
such as Maryland, Michigan, Ohio, Pennsylvania, Con-
necticut, Delaware, Minnesota, ete.
4. It is of national importance that the precise point
be reviewed and settled by this Court so that there may
be uniform application of the law among the Federal courts,
and between them and those jurisdictions having identical
or similar statutes, otherwise by the mere expedient of
6
transfer of venue from a State court, where diversity of
citizenship and concurrent jurisdiction exists, to a Federal
court (such as in the Second Cireuit) a defendant may
procure a prejudicial advantage over the plaintiff and
thereby defeat a valid claim.
The vessel involved was the /talia, flying a Panamanian
flag at the time, with an Italian crew, and the ship’s doctor
testified that in his capacity he was considered as “a mem-
her of the crew” of the ship (Rt. 274).
The sole qualification to offering the exhibit by the
defendant was that while plaintiff was in the state of
“fairly accentuated or fairly pronounced shock” the ship's
doctor testified that he was cleansing the wound and sutur-
ing the same and at the same time was making the entry
in the exhibit in the presence of his male nurse (R. 152),
which exhibit is from a book which he testified he kept
“in the regular course of his (your) practice of medi-
cine during his (your) regular course of business (here)
on board the ship” (R. 154).
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The objection to competency below and in the Court of
Appeals (R. 163) was grounded on the fact that the docu-
ment itself was not established as qualifying within the
business records statute and that the alleged hearsay nar-
rative contained therein was not gerinane to medical diag-
nosis or treatinent but in fact was a self-serving declaration
made by an active tort feasor for whom the defendant
is responsible.
That it was never qualified under the <tatute, if other-
wise admissible, is obvious, for nowhere in the record did
defendant show or establish that the document was made
in the regular course of the steamship business and that
it was the regular course of the steamship business or the
entrant’s employer to require that he interrogate each
patient as to the manner in which he received his imjury
or illness and to record the same. Indeed, upon the face
.\A DY NARnnr ww
7
of the exhibit there are no entries of such nature with
respect to other patients.
Before its admission by the Court below, by its own
direct examination of its male nurse witness, in whose
presence the ship’s doctor testified he interrogated the
plaintiff, the defendant established that no such interro-
gation took place (R. 327, 328):
CassoLino, direct.
“Q. Did you hear any conversation between the man
and the doctor or the man and Mr. Belli? <A. No.
Q. Were you in the surgery all the while that this
man (plaintiff) was here? A. Yes.
CASSOLINO, Cross.
A. The doctor and nurse who was here were cleaning
around the wound, cutting away the hair to get ready
to put in the stitches.
i i ad —_—— wo”
Q. Was any conversation taking place at the time?
A. No.
. Were you here all the time that this man was
in here being treated? A. Yes” (R. 331, 332).
And, as testified by the ship’s doctor on further cross-
examination (R. 284):
“Q. In other words, now, you are able to tell us
’ that there was no record for Terrasi because you
actually looked for a record at the time the steamship
company’s investigator came aboard ship to question
you about it. Is that right? A. There was no record,
so I couldn’t say to the company that there was a
record when there was no record.”
The ship’s doctor had also testified that Exhibit G wax
in his handwriting and a casual examination reveals that
this document, which was before the Trial Judge, as well
as the above admissions, before the Court admitted it into
evidence, is actually a fraudulent document. Between the
S fF owe “PRs sp mmis
8
dates ‘20" and “22”, under the heading “N. Ordine”, the
ship's doctor endeavored to insert an entry to correspond
with the date “21” in order to maintain a sequence of dates
so that it would appear to have been made in regular
order but apparently abandoned the attempt because of
lack of space between those two dates and then, “contem-
poraneously” with suturing the plaintiff on May 21st, made
iis entry beneath the date “May 292” and dated the same
“May 21.”
If the alleged statement made by the plaintiff to the
ship's doctor would ordinarily be admissible, in this in-
stance the evidence before the Court clearly took it out
of the statute and it should never have been submitted to
the jury (Palmer v. Hoffman, 318 U. S. 109), for, as Mr.
Justice Douglas very aptly put it:
“The conduct of business commonly entails the pay-
ment of tort claims incurred by the negligence of its
employees. But the fact that a company makes a
business out of recording its employees’ versions of
their accidents does not put those statements in the
class of records made ‘in the regular course’ of the
business within the meaning of the Act.
If it did, then any law office in the land could follow
the same course, since business as defined in the Act
includes professions. We would then have a real per-
version of a rule designed to facilitate admission of
records which experience has shown to be quite trust-
worthy.
* * * * * *
Nor is it any answer to say that Congress has pro-
vided in the Act that the various circumstances of
the making of the record should affect its weight, not
its admissibility. That provision comes into play only
in case the other requirements of the Act are met.”
(Emphasis supplied.)
Here the Court admitted it as proof of what it contained
and the jury accepted it as such, for, without it, it could
not have returned a verdict for the defendant, because
9
there is no other evidence upon the record to support the
defendant’s contention.
In Williams vy. Alexander, 309 N. Y. 283, 129 N. Ke. 417
(Oct. 13, 1955), the hospital record involved was from an
independent hospital not involved in the litigation, whereas
in the case at bar the exhibit was made by an active tort
feasor, an employee of the defendant.
The Williams case came under Section 374-a of the New
York Civil Practice Act, the business records Act of
New York, which is identical and verbatim with the Federal
Act, and there the hospital had upon its records that the
patient had stated to the physician that
“he was crossing the street and an automobile ran into
another automobile that was at a standstill, causing
this ear (standstill) to run into hin.”
The Trial Court admitted the complete record over plain-
tiff’s objections and a verdict in favor of the defendant
was rendered, which was affirmed by a divided Appellate
Division. In reversing and remanding for a new trial, upon
the ground that the admission into evidence of that alleged
statement contained in the hospital record was erroneously
admitted, the New York Court of Appeals cited this Court’s
Palmer v. Hoffman decision in support, as well as a myriad
of decisions of other states having identical or similar
business records Acts, stating that:
“The particulars may be a natural subject of the
doctor’s curiosity, but neither the inquiry nor the
response properly belongs in a record designed to
reflect the regular course of the hospital’s business.
(Citations. )”
The Court further stated, citing from authorities through-
out the nation, that the typical and almost universal holding
with respect to such entries is,
“it was the business of the hospital to diagnose plain-
tiff’s condition and to treat her for her ailments, not
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;
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AbD asta eae tN oY
10
to record a statement describing the cause of the acci-
dent in which plaintiff’s injuries were sustained”:
and that,
“Consequently, the only memoranda that may be
regarded as within the section’s compass are those
reflecting acts, occurrences or events that relate to
diagnosis, prognosis or treatment or are otherwise
‘helpful’ to an understanding of the medieal or sur-
gical aspects of (the particular patient’s) hospitali-
zation.”
In the Third Cireuit, Spellman v. American Barge Line
Co., Inc., 76 Fed. Supp. 1, the District Court admitted into
evidence, over plaintiff's objections, a hospital record kept
by disinterested persons but which contained alleged
declarations made by the plaintiff. The jury found for the
defendant and, upon motion to set aside and for a new
trial, the Distriet Court recognized its error and granted
plaintiff a new trial upon the ground that the alleged
declarations in the hospital record
“were not made as a record, memorandum or record,
of any act, transaction, occurrence or event”
within the meaning of the Federal Act.
In the language of Mr. Justice Douglas in the Palmer
case, the alleged record herein was not for the systematic
conduct of the defendant’s business as a steamship busi-
ness
“Unlike payrolls, accounts receivable, accounts pay-
able, bills of lading and the like, these reports are
caleulated for use essentially in Court, not in the busi-
ness. Their primary utility is in litigating, not steam-
hoating (railroading)” (Palmer v. Hoffman, supra).
If the judgment of the Court of Appeals for the Second
Circuit is permitted to stand, it means that henceforth
every passenger of a common carrier, indeed, every seaman
and railroad employee, who sustains an injury due to the
11
negligence of the carrier can quite easily be defeated in
a valid cause of action by the simple expedient of the
defendant placing into evidence self-serving declarations,
made in its behalf by its employee-tort feasor, and such
documents would be accorded the same dignity and high
degree of trustworthiness as is accorded to customary
business records, entries in family Bibles, log books, ete.
Insurance company investigators, upon discovering the
absence of any records (p. J herein), could very easily
create “trustworthy” records by simply instructing the
responsible tort feasor-employee to insert an appropriate
entry favorable to the carrier, with the result that the issue
for the jury would be whether to believe any plaintiff as
against such “trustworthy” documentary evidence. No
longer would a defendant have to produce competent fact
witnesses, but it could confidently sit back and rely upon
the overwhelming weight of such documents as against
the spoken word of the injured party as occurred in the
instant case. Indeed, even with eyewitnesses a_ plaintiff
would have an extremely doubtful hurdle.
This Court has never had occasion to consider the pre-
cise point raised herein and, as appears in the Williams
decision, that case was the first and only occasion for
the New York State Court of Appeals to consider the point.
The conflict between the Court of Appeals for the Second
Circuit and the New York State Court of Appeals, as well
as those other jurisdictions cited by the New York State
Court of Appeals, is of national importance and should be
resolved by this Court so that all of the Federal courts and
the courts of those states having Business Records Acts
identical or similar to the Federal Business Records <Act
will have uniformity in applying the law under such Acts.
12
CONCLUSION
For all of the above reasons a writ of certiorari as
prayed for should be granted.
Respectfully submitted,
Harry D. GraHaM,
Counsel for Petitioner,
76 Beaver Street,
New York 5, N. Y.
Dated, New York, N. Y.,
January 26, 1956.
fVADK NARC CO
13
OPINION APPENDIX
UNITED STATES COURT OF APPEALS
lor THE Seconp Circuit
(226 F. 2d 823)
AnpREW Terrasi, plaintiff-appellant, v. Sour ATLANTIC
Lines, Inc., defendant-appellee.
Decided October 31, 1955.
Before Ciark, Chief Judge, and Meprna and Lumsarp,
Cireuit Judges.
Appeal from the United States District Court for the
Southern District of New York, William Bondy, Judge.
Plaintiff appeals from a verdict and judgment for the
defendant in his action for damages for personal injuries
sustained on board the defendant’s SS. Italia. Affirmed.
Harry D. Granam for plaintiff-appellant.
Louis J. Gusmano (Kirin, Campsett & Keatine on the
brief) for defendant-appellee.
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14
Crark, Chief Judge—This is an appeal by the plaintiff
from a verdict and judgment for the defendant in his ae-
tion for damages for personal injuries alleged to have
been sustained through the negligence of defendant while
he was a passenger at sea on the defendant's SS. Italia.
At the outset we must consider defendant’s motion to dis-
iniss the appeal as not timely. When the defendant’s
verdict was rendered on January 20, 1955, plaintiff at once
made an oral motion for a new trial, which the court as
promptly denied. The next day, January 21, the plaintiff
filed a formal written motion for reargument of his motion
for a new trial, setting forth various grounds upon which
he contended that he was entitled to such trial; and this the
defendant's counsel answered by affidavit on January 25.
Meanwhile a formal judgment for the defendant was en-
tered by the clerk on January 21. Plaintiff's motion was
denied by the court on February 28 in a brief memorandum
indorsed upon it, in which it is deseribed as the “motion
to set aside the verdict and for a new trial,” and which
discloses that the court considered it on the merits. Plain-
tiff’s appeal followed on March 2—too late if his time runs
from the date of the formal judgment, but in time if it
runs from the denial of the motion.
Defendant asserts that a motion for a reargunent is not
within the several motions specified in F. R. 73(a) as sus-
pending and thus extending the time within which an appeal
can be taken. But this is too literal a reading of the lan-
guage of the rule. A motion for reargument of a motion
for a new trial is of course nothing but a motion for re-
hearing thereof, and thus in essence is itself but an applica-
tion for a new trial under F. R. 59(a), which explicitly in-
cludes all applications for rehearing a= previously under-
stood. Thus the advisory committee’s note to this rule
shows that it includes the former “petition for rehearing”
of Equity Rule 69. As pointed out in Slater v. Peyser (D.
C. Cir. 200 F. 2d, 360, 361): “Under Rule 59(a), Fed.
Rules Civ. Proe., 28 U.S. C. A., a motion for rehearing is
-
15
equivalent to a motion for a new trial.” The very reasons
which led the advisory committee to recommend the amended
Rule 73(a) in the interest of clarity and to avoid confusion
as to the proper time for appeal apply equally to this mo-
tion. Of course it must be timely made within ten days,
as specified in F. R. 59(b), and thus in any event cannot de-
lay the proceedings unduly. The appeal here properly
taken when the motion was denied is therefore timely (sec
Anderson v. Continental SS. Co., 2 Cir, 218 F. 2d, 84:
Mosier v. Federal Reserve Bank of New York, 2 Cir, 132
F’., 2d, 710, and the cases cited in the annotation 10 A. L. R..
2d, 1075, at 1079, 1080). Cases such as Marten v. Hess (6
Cir., 176 F., 2d, 834), Dena Products Co. v. United Brick &
Clay Workers of America (6 Cir., 195 F., 2d, 612, certiorari
denied 344 U. S., 822) and Randolph v. Randolph (D.C.
Cir., 198 F., 2d, 956) are distinguishable as referring to
notions either not timely made or otherwise not the equiva-
lent of the one filed here. See Morley v. United States
(6 Cir., 207 F., 2d, 654), pointing out the lack of timeliness
of the motion for rehearing there.
The plaintiff’s appeal is based on the contention that in
the early morning of May 21, 1950, while on a trip as a
third-class passenger from New York to Palermo, Sicily, and
while ascending a staircase on the ship from C deck, where
his cabin was, to the toilet facilities on B deck, he was sud-
denly struck from behind upon his head by an unidentified
assailant and rendered unconscious. On these alleged facts
he asserted negligence on the part of the ship in failing to
furnish watchmen to protect passengers from assault.
Defendant, on the other hand, while denying any negligence,
contended that there was no assault and that plaintiff was
seized with a fit of dizziness while ascending the staircase,
and fell, striking his head. These conflicting issues were
duly presented to the jury, together with the also conflict-
ing testimony as to the nature of the care received by plain-
tiff after his injury. The jury, after an appropriate charge
and apparent careful consideration of the issues, as shown
16
by their questions on return for further instruction, then
brought in the defendant’s verdict from which the appeal
is taken. The only error relied upon, since the trial was
otherwise altogether appropriate, was the action of the
judge in admitting in evidence an entry by the ship’s doc-
tor in what seems generally referred to as the doctor’s “log”
or “journal.” This entry, the doctor testified, was made in
the regular course of his employment while plaintiff was in
the ship’s hospital. It is in Italian, but the interpretation as
agreed upon is the following, appearing after the date,
May 21, 1950, and the plaintiff's name: “At 6:15, while
returning to the cabin on Deck C (after having been in
the toilet on Deck B) was caught by sudden dizziness and
fell on the stairway, striking his head on the steps.” There
followed statements describing the head wound or cut and
referring to a “Fairly accentuated or fairly pronounced
shock.” Overruling the plaintiff’s vigorous objections the
court admitted these statements as entries in the regular
course of business made admissible by the Business Entries
Statute (28 U. S. C. see. 1732).
Plaintiff now challenges this ruling on the basis of Pal-
mer v. Hoffman (318 U. S., 109, 144 A. L. R., 719). We
need not stop to consider whether that case has been lim-
ited by later precedents, since the situation here is quite
different. There the statement in controversy was made
by the engineer who was alleged to have caused the acci-
dent in issue and was made after the event for the purpose
of ensuing litigation. Here, however, is a timely entry
made by a doctor whose job it was to make such entries,
and its admissibility is settled by numerous precedents.
Among these we may cite Tucker v. Loew’s Theatre &
Realty Corporation (2 Cir., 149 F., 2d, 677, 680, citing ear-
lier cases) ; Pekelis v. Transcontinental & Western Air, Inc.
(2 Cir., 187 F., 2d, 122, 129-131, 23 A. L. R., 2d, 1349, cer-
tiorari denied Transcontinental & Western Air, Inc., v.
Pekelis, 341 U. S., 951); Korte v. New York, New Haven
& Hartford Railroad (2 Cir., 191 F., 2d, 86, certiorari de-
17
nied) New York, New Haven & Hartford Railroad vy. Korte
(342 U. S., 868), and Landon v. United States (2 Cir., 197
F., 2d, 128, 130). Plaintiff’s claim that the entry was
manufactured or doctored goes to weight and not adimissi-
bility, and was thoroughly aired at the trial.
In view of what appears thus to be its clear adinissibility
under the statute and the cases we do not need to consider
other grounds urged by the defendant, such as that it was
a ship’s log admissible under the rule referred to in Lo-
poezyk v. Chester A. Poling, Inc. (2 Cir., 152 F., 2d, 457)
and Naylor v. Isthmian SS. Co. (2 Cir, 187 F., 2d, 538),
that it was merely cumulative of other adequate evidence,
and that plaintiff waived his objection by agreeing to the
interpretation as received in evidence.
Judgment affirmed.
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18
COURT OF APPEALS
State or New York
(309 N. Y. 283, 129 N. KE. 2d 417)
Desst WituiaMs, appellant, v. Mervin K. ALEXANDER,
respondent.
Decided October 13, 1955.
Present: Conway, Ch. J.; DesMonp, Dvr, FuLp, FRorsset,
Van Vooruis and Burke, JJ.
Appeal from a judgment of the Appellate Division of
the Supreme Court in the Second Judicial Department,
entered February 23, 1955, affirming a judgment in favor
of defendant, entered in Kings County upon a verdict
rendered at a Trial Term (Bensamiy, J.).
Bernarp Meyerson, ALbert Martry Conen and Lovis
[. Rornensere for appellant.
Joun D. Ketry and Josernu F. O’Brien for respondent.
Fup, J.—Dessi Williams was struck by defendant’s auto-
mobile as he was crossing a street in Brooklyn with the
19
traffic light in his favor. His right leg fractured, he was
taken to Kings County Hospital for treatment. At the
trial the testimony of the parties as to the manner in
which the accident occurred was sharply discrepant. Ae-
cording to plaintiff, defendant’s automobile approached the
intersection, at which he was crossing, without diminishing
speed and ran into him. Defendant, on the other hand,
insisting that he had brought his car to a complete stop
at the light, maintained that another vehicle had struck it
from the rear and propelled it forward and upon plaintiff.
In the early stages of the trial plaintiff introduced so
much of the Kings County Hospital record as bore upon
his injuries and their treatment. Counsel for defendant
thereupon offered the balance of the record, and it was
received in evidence over plaintiff’s objection. Specifically
challenged by plaintiff as inadmissible hearsay was an
entry to the effect that he had stated to a physician at the
hospital that “he was crossing the street and an automobile
ran into another automobile that was at a standstill, caus-
ing this car (standstill) to run into him.” Plaintiff denied
making any such statement, and the doctor who recorded
it was not called as a witness.
Upon this appeal—following a verdict in defendant's
favor and an aflirmance by a divided Appellate Division
—we are called upon to decide whether the statement at-
tributed to plaintiff, relating the manner in which the
accident occurred, was properiy admitted in evidence as
a memorandum or record made “in the regular course of
** ® business” (Civ. Prac. Act, sec, 374-a)." While there
are many out-of-state decisions on the point, we have
never had occasion to consider it: neither in Roberto v.
* Although the doctor who made the entry would have been com-
petent to testify to plaintiff's alleged admission against interest, the
cutry itself was, nevertheless, excludable as hearsay unless within
ihe compass of section 374-a of the Civil Practice Act (see, e.g.
Green v. City of Cleveland, 150 Ohio St.. 441, 444-445; Richardson
on Evidence, 8th ed., 1955, sec. 233, p. 211); and the issue was
sufficiently raised by the objection predicated on the hearsay rule.
i aa aa sana
20
Nielson (288 N. Y., 581), nor in Dougherty v. City of New
York (295 N. Y., 786)—upon which reliance is placed to
sustain the trial judge’s ruling—nor in any other case was
it necessary for this court to pass upon the question now
posed.
Section 374-a of the Civil Practice Act permits the intro-
duction in evidence of “Any writing or record * * * made
as a memorandum or record of any act, transaction, oecur-
rence or event,” despite its hearsay character, “if the trial
judge shall find it was made in the regular course of any
business, and that it was the regular course of such busi-
ness to make such memorandum or record at the time of
such act, transaction, occurrence or event, or within a rea-
<onable time thereafter.” The term “business” is broadly
defined as including “business, profession, occupation and
calling of every kind,” and among the records within the
section’s ambit are those that a hospital keeps in diagnosing
and treating the ills of its patients (see Meiselman v. Crown
Heights Hosp., 285 N. Y. 389: People v. Kohlmever, 284
N. Y. 366).
The statute, similar to those in effect in most jurisdic-
tions, is designed to harmonize the rules of evidence with
modern business practice, and give “evidential credit” to
the memoranda or other writings upon which reliance is
placed in the systematic conduct of business undertakings
(see Johnson vy. Lutz, 253 N. Y., 124, 127). It rests upon
the probability of trustworthiness which inheres in such
records by virtue of the fact, first, that they are the
“routine reflections of the day to day operations of a busi-
ness” (Palmer v. Hoffman, 318 U. S., 109, 114) and, second,
that it is the entrant’s own obligation, and to his interest,
to have them truthful and accurate, made and kept as they
are with the knowledge, indeed, for the parpose, that they
will be relied upon in the conduet of the enterprise (see
Johnson v. Lutz, supra, 253 N. Y., 124, 128; Weis v. Weis,
147 Ohio St., 416, 425; see, also, 5 Wigmore on Evidence,
24 ed., 1940, see. 1522, p. 369: MeCormick on Evidence, 1954,
21
see, 281, pp. 596-597). It is this element of trustworthi-
ness, serving in place of the safeguards ordinarily afforded
by confrontation and cross-examination, which justifies ad-
mission of the writing or record without the necessity of
calling all the persons who may have had a hand in pre-
paring it. And it was to assure such accuracy and reliabil-
ity that the Legislature made explicit the condition that
the memorandum inay be received in evidence—and this is
the heart of the provision—only if it was “made in the
regular course of [the] business, and * * * it was the regu-
lar course of such business to make such memorandum.
As the statute makes plain, and we do no more than
paraphrase ‘t, entries in a hospital record may not qualify
for admission in evidence unless made in the regular course
of the “business” of the hospital, and for the purpose of
assisting it in carrying on that “business.” The busines
of a hospital, it is self-evident, is to diagnose and treat its
patients’ ailments. Consequently, the only nemoranda that
may be regarded as within the section’s compass are those
reflecting acts, occurrences or events that relate to diagnosis,
prognosis or treatment or are otherwise “helpful to an un-
derstanding of the medical or surgical aspects of * * * (the
particular patient’s) hospitalization” (e.g., Green v. City
of Cleveland, 150 Ohio St., 441, 443-444; Commonwealth
vy. Harris, 351 Pa., 325, 330-331; see, also, Borucki v. Mac-
Kenzie Bros. Co., 125 Conn., 92, 102-103: MeCorimick, op.
cit., see. 290, p. 611).
It follows from this that a memorandum made in a hospi-
tal record of acts or occurrences leading to the patient's hos-
pitalization—such as a narration of the accident causing
the injury—not germane to diagnosis or treatment, is not
admissible under section 374-a, and so it has been almost
universally held under the identical or similar statutes of
other jurisdictions. (see, e.g., Scott v. Gibbons Co., 192 Md.,
319, 330; Sadjak v. Parker-Wolverine Co., 281 Mich., 84.
87-88; Valenti v. Mayer, 301 Mich., 551, 557; Green v.
City of Cleveland, supra, 150 Ohio St., 441, 443-444: Weis
CPR Ter a PRS AER I I I Pee ee re NN eral
ae
sl
4
44
a
4
a
ms
%
22
v. Weis, supra, 147 Ohio St., 416, 425; Comnonwealth v.
Harris, supra, 351 Pa., 325, 330-331; see, also, Borucki v.
MacKenzie Bros. Co., supra, 125 Conn., 92, 102-103; Watts
vy. Delaware Coach Co., 44 Del., 283; Brown v. St. Paul
City R’y, 241 Minn., —, 62 N. W., 2d, 688, 695-696; Rich-
ardson on Evidence, Sth ed., 1955, see. 233, pp. 209-210,
911-212; McCormick, op. cit., see. 290, p. 611; Medina, Cur-
rent Developments in Pleading, Practice and Procedure in
the New York Courts, 30 Corn. L. Q., 449, 454-458). In
the words of the Ohio court in Green v. City of Cleveland
(supra, 150 Ohio St., 441, 444), typical of those found in
the other cases, “it was the business of the hospital to
diagnose plaintiff's condition and to treat her for her ail-
ments, not to record a statement describing the cause of
the accident in which plaintiff's injuries were sustained.”
In some instances, perhaps, the patient's explanation as
to how he was hurt may be helpful to an understanding
of the medical aspects of his case; it might, for instance,
assist the doctors if they were to know that the injured
man had been struck by an automobile (see Scott v. Gib-
bons Co., supra, 192 Md., 319, 330: ef. Roberto v. Nielson,
supra, 288 N. Y., 581: Watts v. Delaware Coach Co., supra,
44 Del., 283). However, whether the patient was hit by
car A or car B, by ear A under its own power or propelled
forward by ear B, or whether the injuries were caused by
the negligence of the defendant or of another, cannot pos-
sibly bear on diagnosis or aid in determining treatment.
That being so, entries of this sort, purporting to give par-
ticulars of the accident, which serve no inedical purpose,
may not be regarded as having been made in the regular
course of the hospital's business (see Scott v. Gibbons Co.,
supra, 192 Md., 319, 330). Indeed, in diseussing the mat-
ter, Wigmore observed that the essential “Guarantee of
Trustworthiness” rests upon the fact that “the physicians
and nurses * * * themselves rely upon the record,” and
that the record is designed to be “relied upon in affairs
of life and death” (6 Wigmore, op. cit. sec. 1707, p. 36;
23
see Loper v. Morrison, 23 Cal., 2d 600, 608). Such reason-
ing, however, will not support the use, or justify the receipt
of a statement detailing the circumstances of the accident
where they are immaterial to, and were never intended to
he relied upon in, the treatment of the patient. There is
no need in that case for the physician to exercise care in
obtaining and recording the information or to question the
version, whatever it might be, that is given to him. The
particulars may be a natural subject of the doctor’s cur-
iosity, but neither the inquiry nor the response properly
belong in a record designed to reflect the regular course
of the hospital’s business (see, e.g., Commonwealth v. Har-
ris, supra, 351 Pa., 325, 331).
In conclusion, then, that portion of the hospital record
containing the statement assertedly made by plaintiff as
to the manner in which the accident happened was er-
roneously admitted, and since we cannot say that it did
not influence the jury in arriving at its verdict for defend-
ant there must be a new trial.
The judgment of the Appellate Division and that of
Trial Term should be reversed and a new trial granted,
with costs to abide the event.
Dresmonp, J. (dissenting)—I see no error here and no
reason for retrying this simple question of fact.
Plaintiff, for his own convenience, chose to prove his
injuries and the hospital treatment he received therefor
hy putting a hospital record in evidence and without call-
ing as a witness the physician who made the entries. In
so doing he, of course, vouched for the accuracy and regu-
larity of that record. Defendant made no objection, but in
his turn offered in evidence so much of the same hospital
record as showed a statement to the hospital physician by
plaintiff that the accident had occurred in a manner quite
24
different from that testified to at the trial by plaintiff.
Plaintiff objected to any such “history” going into evi-
dence. His alleged ground of objection was stated in the
one word: “hearsay.” That, of course, was meaningless
in this context. An undoubted exception to the “hearsay”
rule makes admissible extrajudicial declarations against
interest (Reed v. McCord, 160 N. Y., 330, 341). Plaintiff's
declaration to the hospital physician as to the way the
accident happened was directly probative evidence of a
main fact in issue (Gangi v. Fradus, 227 N. Y. 452). It
is, of course, conceivable (but unlikely) that by plaintiff’s
use of the word “hearsay” he referred to the failure of
defendant to call as a witness the physician who had writ-
ten up the notes. But plaintiff himself had put into evi-
dence the (helpful to him) parts of that identical paper
without calling the physician. Surely plaintiff could not
then demand that the other party prove the authenticity
of the very record plaintiff had himself presented to the
court. Sinee plaintiff had been allowed to prove by the
record alone the diagnosis and treatment of his injuries
it would be absurd to forbid defendant using the same rec-
ord, written in the same handwriting by the same physician
at the same time, to prove an equally relevant, competent
and material fact, that is, that plaintiff had stated to the
physician that his injuries were caused in the manner as-
serted by defendant.
It follows from the above that section 574-a of the
Civil Practice Act, our statutory rule as to admissibility
of records made in the regular course of a business, has
little or nothing to do with this case. What we have here
‘s an admission against interest, proved not by the oral
testimony of the person to whom it was made, but by an
authentic document already vouched for to the court by the
opposing party himself.
But let us suppose that this is a section 374-a case. “Hos-
pital records concededly are included within the records
to which section 374-a of the Civil Practice Act is appli-
~
25
cable” (People v. Kohlmeyer, 284 N. Y., 366, 369, 370). The
physician who made the entries need not be called as a
witness (Meiselman v. Crown Heights Hospital, 285 N. Y.,
389, 396, 397). True, as Judge Fuld points out, this court
has not yet directly decided whether the section 374-a
makes admissible that part of a hospital record which
gives the history of the injury. But why should this court
not adopt a practical and useful construction, rather than
a narrow and unnecessarily restrictive one? And the
statute itself seems to furnish the answer: “Any writing
or record, whether in the form of an entry in a book or
otherwise, made as a memorandum or record of any act,
transaction, occurrence or event, shall be admissible in
evidence in proof of said act, transaction, occurrence or
event, if the trial court shall find that it was made in the
regular course of any business, and that it was the regu-
lar course of such business to make such memorandum or
record at the time of such act, transaction, occurrence or
event, or within a reasonable time thereafter.” There is
no reason why the “history” part of a hospital record, ob-
tained not from unidentified persons but from the patient
himself, should not be used in evidence against the patient.
Of course, the writing must have been made in the regular
course of the hospital’s business and it must have been the
regular course of the business of the hospital to make such
entries. But in this case plaintiff did not object because
of any failure to prove those requirements (see Meiselman
vy. Crown Heights Hospital, 285 N. Y., 389, 397, supra).
Indeed, he could not, after himself bringing the record
to court, reasonably urge that it was not the regularly
made reeord of this hospital. And he knew, as we all
do, that an examining physican, especially in a hospital
receiving department, always inquires as to the cause of
atrauma. Certainly, in the absence of any suspicious cir-
cumstanee, it is not up to the courts to decide just how
thoroughly a qualified physician may delve into the cause
or occasion of the injuries he is diagnosing and treating.
Anyhow, all this is by the statute’s own words committed
gata)
Pees
SSeS RL SCR EN NENT aS SN OLA I SE NR
Laie
ta
26
to the trial judge’s discretion. It is he who is charged
with passing on the question of whether the entry was
regularly made. Here, no one suggested that it was not
so made or called for proof that it was. The trial justice,
therefore, had no reason for excluding it, particularly
since there was no suggestion that the physician or the
hospital had any interest in the case or any possible reason
for falsifying these records.
This was a routine trial of a simple issue of fact. Plain-
tiff said the accident happened one way, defendant said
that it happened another way. A hospital book brought
to court by plaintiff showed that he himself had described
the occurrence in the way that defendant described it.
Plaintiff denied that he had made such a statement at the
hospital. The jury settled that dispute. It is most unfor-
tunate, especially in these days of congested calendars, that
such a case must now be retried.
The judgment should be affirmed with costs.
Conway, Ch. J.; Froessen and Van Vooruts, JJ., con-
eur with Fuip, J.; Desmonp J., dissents in an opinion in
which Dyr and Burke, J.J., coneur.
HARCLD 8. WHLLEY,
IN THE
Supreme Court of the United States
Ocrosrr Term, 1955.
No. 646.
ANDREW TERRASI,
Petitioner,
v.
SOUTH ATLANTIC LINES, INC.,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT.
RESPONDENT’S BRIEF IN OPPOSITION TO
CERTIORARI.
Louis J. GusMANO,
Counsel for Respondent,
South Atlantic Lines, Inc.,
120 Broadway,
New York 5, N. Y.
Krein, CampsBett & Keatrna,
Of Counsel.
AES
Pandick Press, Inc., 22 Thames St., New York 6, N. Y., U.S. A.
TABLE OF CONTENTS.
CoUNTER-STATEMENT OF FACTS...............--222---00ecceeeeeeeeeees
Pornt I.—The decision below sustaining the admis-
sibility of Exhibit G as a record made in the regu-
lar course of business under the Federal Business
Entries Statute 28 U.S. C. §1732, is clearly correct
and is not in conflict with this court’s decision in
Palmer v. Hoffman, 318 U. 8. 109.0002
Porxt II.—There is no conflict between the decision
at bar construing the Federal Business Entries
Statute and decisions of state courts construing
similar state statutes inasmuch as a history of
dizziness given by a patient to a doctor is obvi-
ously germane to diagnosis or treatment...............
Porxt III.—In any event the question sought to be
raised by the petition would not be dispositive of
the appeal since Exhibit G was admissible not only
under non-statutory principles of evidence as an
entry in a ship’s log, but also because plaintiff
specifically consented to its being read into evi-
dence. Moreover, the history of dizziness had
already been testified to orally by the doctor
involved without objection from plaintiff so that
the contents of Exhibit G@ was merely cumulative
Ne i cee ranrmmcinaonendaliobesdgmin’
a. Exhibit G was admissible as an entry in a
i secscsnteeadapicasienlccpemeslobiaacleihaaiicton
b. Exhibit G was admissible since it was read
into evidence and to the jury with the ex-
plicit consent of plaintiff...
ce. Oral testimony unobjected to by plaintiff
had already been given the jury by Dr.
Valenzi of the history of dizziness so that
Exhibit G which also contained this history
was merely cumulative of other adequate
RUNNIN © caccacidccunebesihneanimbdscstninnsoianltentedaricinseid
CoNCLUSION .......... DS PLAT AILS RIA NEI LEO
13
13
14
15
16
ii
TasLe or Cases.
Couto v. United Fruit Co., 203 F. 2d 456 (2 Cir.)........
Croll v. John Hancock Mut. Life Ins. Co., 198 F.. 2d
Re I ire he i a aiiaaisaet star pedion ida plliaoamkaeciete
Keen v. Overseas Tankship Corp., 194 F. 2d 515 (2
Cir.) cert. denied 343 U. S. 966.....................-.000000--
Kortev.N. Y.N.H.d& H. R.Co., 191 F. 2d 86 (2 Cir.)
certiorari denied 342 U. S. 868.000.0000.
Landon v. U. S., 197 F. 2d 128, 130 (2 Cir.)-...0..0......
Lopoczyk v. Poling, 152 F. 2d 457 (2 Cir.).....-........
Naylor v. Isthmian Steamship Company, 187 F. 2d
Bs Roky BMG eav RR NSP Seca Ee SO eat Ae oe EON
Palmer v. Hoffman, 318 U. S. 109.2002.
Pekelis v. Transcontinental & Western Air, Inc., 187
F. 2d 122, 129-131 (2 Cir.) certiorari denied 341
ON I alochck isc aeeindadinteetatbctaceincmnsnesnosUneciaabitdeconaetomaabasidanbihind
Tucker v. Loew’s Theatre, 149 F. 2d. 677, 680 (2
| SRR Ans tue up en Ues Aer DPT 1 ey evn eo RY eRe
Ulm v. Moore-McCormack, 115 F. 2d. 492, rehearing
denied 117 F. 2d 222 (2 Cir.) certiorari denied
ES RRNA re Are elite ase ome ee
Williams vy. Alexander, 309 N. Y. 283....22.22..2..2.-2.000-000-+
PAGE
IN THE
Supreme Court of the United States
Octoser Term, 1955.
No. 646.
Anprew Terrasi,
Petitioner,
Soutrn Ariantic Lives, Lxc.,
Respondent.
ON PETITION FOR A WRIT OF CERTIORABEI TO THE UNIED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT.
RESPONDENT’S BRIEF IN OPPOSITION TO
CERTIORARI
The petition for certiorari is primarily based on the
assertion, unfounded in fact, that the trial court allowed
into evidence as part of a medical record (Exhibit G)
under the federal Business Entries Statute (28 U.S. C. see.
1732), the history given to the doctor by plaintiff of his
accident not germane to diagnosis or treatment. Even
assuming there is adequate conflict in the decisions as to
whether this type of evidence is admissible under the
statute, which is denied (Point II p. 11, infra), the question
obviously is not involved in this case because the history
given by plaintiff was (Petitioner’s brief, p. 4):
Pe) ARS ROR Ree ROAST,
‘
:
2
‘3
i
*
:
i
&
:
4
2
‘*At 6.15, while returning to the cabin on Deck C
(after having been in the toilet on Deck B) was
caught by sudden dizziness and fell on the stairway,
striking his head on steps.
‘‘Lacerated, contused wound, or cut, six centi-
meters at the occipital region, deep to the bone.
Fairly accentuated or fairly pronounced shock.’’
It is beyond understanding how plaintiff can cavalierly
urge to this Court that a history of dizziness given to a
doctor is not germane to treatment or diagnosis. Indeed,
no such argument was made to the trial court nor to the
Court of Appeals. Significantly, in plaintiff’s petition to
this Court, other than to assert the bare conclusion not
even made to the courts below, there is no attempt to
show nor is it apparent how a patient’s disclosure to a
treating doctor that he fell because of a dizzy spell could
possibly be separated from the doctor’s decision on the
extent of sedation, bed rest, and other treatment to be
afforded the patient.
Moreover, on the particular facts in the case at bar.
the admission of Exhibit G is sustainable on several
erounds independent of the federal Business Entries
Statute, and thus the question posed by plaintiff (even
assuming what obviously is not so, that a history of dizzi-
ness is unrelated to treatment or diagnosis) would in no
event be dispositive of the appeal. Plaintiff’s represen-
tation to this Court that there is ‘‘no other evidence in
the record to support’? (Petitioner’s brief, pp. 9 & 5) the
history of dizziness in Exhibit G is an outright misstate-
ment. The plain fact is that oral testimony by deposition,
which was unobjected to by plaintiff, had in the first instance
been given to the jury by Dr. Valenzi on the history of
dizziness he obtained from plaintiff, and, therefore, Exhibit
G which was subsequently received in evidence and which
3
also contained this history was merely cumulative evi-
dence (Point III(c) p. 15, infra). Indeed, Exhibit G was
ultimately read into evidence and to the jury with plain-
tiff’s consent and therefore the document became admissible
no matter what it contained (Point III(b) p. 14, infra),
and in any event was admissible in evidence under non-
statutory principles of evidence irrespective of the federal
Business Entries Statute (Point III (a) p. 13, infra).
Clearly, therefore, the case at bar does not involve the
question the petition raises.
The Court of Appeals for the Second Circuit, in affirm-
ing the decision of the trial court, recognized, without
passing upon, the existence of these independent grounds
to sustain the admissibility of Exhibit G, saying (226 F.(2)
at pp. 825-826) :
‘*In view of what appears thus to be its clear
admissibility under the statute and the cases we do
not need to consider other grounds urged by the
defendant, such as that it was a ship’s log admissible
under the rule referred to in Lopoczyk v. Chester A.
Poling, Inc., 2 Cir., 152 F. 2d 457, and Naylor v.
Isthmian S. S. Co., 2 Cir., 187 F. 2d 538, thet it was
merely cumulative of other adequate evidence, and
that plaintiff waived his objection by agreeing to the
interpretation as received in evidence.’’
(‘OUNTER-STATEMENT OF Facts.
Plaintiff, before Hon. William Bondy and a_ jury,
unsuccessfully sought to recover damages for an alleged
assault claimed to have been committed on May 21, 1952
by an unknown person while he was a passenger aboard
the SS. Italia owned and operated by defendant, as well
as further damages for humiliation and aggravation
because allegedly after his injury he was orally abused by
a tee 2
5)
ASD RE A ee
j
¥
4
the hospital attendant. After a four day trial, the jury
on January 20, 1955 returned a verdict in favor of defend-
ant on both counts.
At the trial plaintiff testified that he boarded the
SS. Italia as a third class passenger on May 19, 1950 (R.
20, 21). Up until May 21, 1950 everything proceeded
normally (R. 88, R. 89) and there was no occasion for him
to complain to any of the ship’s personnel concerning any-
thing unusual about the ship (R. 89-90). According to
plaintiff, at about 4 or 4:30 a. m. of May 21, 1950 (R. 21)
he left his cabin on the after end (R. 37) of ‘‘C’’ deck (R.
25) dressed in his bathrobe (R. 22) to go to the toilet on
‘“‘B”’ deck (R. 22, R. 38). As he walked to the stairway
he did not see anyone in the vicinity (R. 32, R. 91). When
he reached the stairway he grasped the railing, placed
his foot on the first step and started going up the stairway
(R. 27, R. 91-92). Plaintiff testified he suddenly had a
fear that someone was behind him and before he could
turn around he felt a blow on his head (R. 22, R. 27), and
the next thing he knew he awakened on the deck near the
stairway (R. 27-28). Plaintiff’s doctor at the trial con-
ceded plaintiff did not suffer from any residue of the
injury other than what is referred to as general nervous-
ness (R. 240), that plaintiff had never been found unfit
for duty by him (R. 237-238) and that his findings were
‘‘nerfectly normal’ (R. 231). Plaintiff by his own testi-
mony would have had the court and jury believe that it
took him several months after he returned to the United
States in August, 1950 before lhe was able to resume
employment (R. 66) and that he no longer is able to work
(R. 112); but on cross-examination plaintiff suddenly
remembered that he returned to the United States on
August 1, 1950 and that he resumed his employment that
very same day (R. 105) and that since then he has been
5
working almost continuously earning about the same amount
of money which he earned before the accident, as his earn-
ing record clearly indicates (R. 137-149, Def. Ex. B-D).
Plaintiff, who admitted there was no motive for anyone
to have assaulted him (R. 90, R. 93, R. 95), did not see his
alleged assailant (R. 90-91) or where the alleged blow came
from (R. 91) and he could give no direct testimony that
he was actually assaulted (R. 91) and no witness called
established the alleged assault (R. 132). It was uncon-
troverted that the wound on plaintiff’s neck was length-
wise (R. 208, R. 265, R. 276) and not vertical, so that it
could have been caused only by coming in contact with a
horizontal object and not from an overhead blow (R. 240,
R. 265). Indeed, plaintiff’s doctor agreed that the type of
injury inflicted could not have come from a blackjack or
other similar instrument (R. 240). Moreover, since plain-
tiff based his claim on an unprovoked assault, he had to
admit that thereafter he was in constant fear of his own
safety and his family’s safety (R. 99, R. 101) ; but curiously
enough he did not report the alleged assault to any of the
ship’s personnel or any of the passengers (R. 97, R. 100,
R. 101), he did not request any protection (R. 100), he
continued to roam about the vessel unlimitedly (R. 99-100)
and when he returned to the United States, although he
could have selected another vessel, he sailed on the SS. Italia
(R. 103-104) the very ship on which lurked the claimed
dangers of which plaintiff supposedly was in dreaded fear.
Cabin boy Bettoso, who at the time of the accident was
mopping the deck about five or six meters aft of the stair-
way in question (R. 290, R. 291), testified that he actually
heard plaintiff slipping down the stairways (R. 291, R. 292-
293, I. 299-301), as would have happened during plaintiff’s
dizzy spell, and that by the time Bettoso turned to learn
what happened he saw plaintiff going back to and re-enter-
a
OE
PRI A BK
6
ing his cabin (R. 293). Bettoso further testified that there
had been no other person in the vicinity (R. 302) and that
when he later that morning washed the stairway (R. 294) he
noticed blood on two or three of the steps in about the middle
of the stairway (R. 295), which could not have been there
had plaintiff been assaulted while on the deck and not on
the stairway as plaintifi claimed.
In addition, Dr. Valenzi, ship’s surgeon who treated
plaintiff (R. 150, R. 151, R. 172) testified orally, and not
from any documents, that in obtaining plaintiff’s history
plaintiff did not say he was assaulted but to the contrary
plaintiff stated he had suffered a dizzy spell while ascend-
ing the stairway and that he slipped down the stairway
and struck his head against the steps (R. 161, R. 288).
This oral testimony was competent, relevant, and material,
and at no time was it objected to by plaintiff’s attorney
(R. 161, R. 288). Judge Bondy also admitted into evidence
Exhibit G, a page from the ship’s surgery log (R. 152)
wherein was recorded in the regular course of the doctor’s
duties (R. 152-154) the histery given by plaintiff that he
suffered a dizzy spell, and the treatment rendered.’
This exhibit is in a foreign language and while plaintiff’s
attorney objected to its competency before it was trans-
lated to the jury and before the jury knew what it con-
tained (R. 349), when the time came to read it to the jury
1 Though we believe it relevant to the issues presented, we point
out that the entry in Exhibit G by Dr. Valenzi was not made by an
alleged tort-feasor as is claimed in the petition ; apparently plaintiff
forgot that the complaint upon which his claim is grounded served
in October, 1950 soon after the accident does not make any allega-
tion against the ship’s doctor but it is there stated that the ship’s
hospital attendant, not the ship’s doetor, orally abused plaintiff. In
this respect, Judge Bondy believed this sudden inconsistency in
plaintiff’s claim was of sufficient importance to direct in his charge
the jury’s attention to the allegation in the complaint which pro-
ceeded against the hospital attendant and not the ship’s surgeon
(R. 369).
7
plaintiff’s attorney reversed his position and explicitly
consented that it be translated and read to the jury (R. 388)
and that the jury be furnished with a transcript of the
translation (R. 389).
POINT I.
THE DECISION BELOW SUSTAINING THE ADMISSIBILITY OF
Exuisir G As A RECORD MADE IN THE REGULAR COURSE OF BUSI-
NESS UNDER THE FeperaL Business Entries Statute 28
U. S. C. $1732, 1s CLEARLY CORRECT AND IS NOT IN CONFLICT
WITH THIS COURT’s DECISION IN Palmer v. Hoffman, 318
U.S. 109.
The petition does not challenge the now firmly estab-
lished principle that records made by physicians treating
(as distinguished from examining) a plaintiff, as well as
records kept by hospitals, if made in the regular course of
business, are admissible in evidence. Korte v.N. Y.N. H. d
H.R. Co., 191 F. 2d 86 (2 Cir.) certiorari denied 342 U. S.
868; Pekelis v. Transcontinental & Western Air, Inc., 187
EF, 2d 122, 129-131 (2 Cir.) certiorari denied 341 U. S. 951;
Tucker v. Loew’s Theatre, 149 F. 2d. 677, 680 (2 Cir.);
Landon v. U. S., 197 F. 2d 128, 130 (2 Cir.); Croll v. John
Hancock Mut. Life Ins. Co., 198 F. 2d 562 (3 Cir.) ; Ulm
v. Moore-McCormack, 115 F. 2d. 492, rehearing denied 117
F, 2d 222 (2 Cir.) certiorari denied 313 U.S. 567. Nor does
the petition question the irrelevancy of plaintiff’s being
ina ship’s hospital rather than in a shore hospital in deter-
mining whether the entry made during his hospitalization
is admissible.
8
Petitioner claims that because at the trial? the ship’s
doctor was accused by plaintiff, not of having caused the
accident, but of having ill-treated plaintiff, the entry should
be considered made by an active tort-feasor and inadmis-
sible as a matter of law under the decision of Palmer v.
Hoffman, 318 U.S. 109.
The Palmer decision, however, is clearly inapplicable.
A reading of the Court of Appeal’s opinion discloses that
in that case there was nothing more involved than a state-
ment in question and answer form taken from the engineer
driving the engine which caused the accident and which
gave his own version of how the accident occurred; the
statement was taken in the course of defendant’s subse-
quent investigation of the accident. Obviously such a
statement was inadmissible. Those circumstances are not
present here.
In the case at bar we have a timely entry germane to
diagnosis and treatment, made by a physician who treated
the plaintiff in the ship’s hospital and the entry is in the
ship’s surgery log. The physician testified that the entry
was made in the regular course of business. Dr. Valenzi
2Under the statute, even if the entry had been made by an
alleged active tort-feasor as is claimed in the petition, that would
go to the weight of the entry and not to its admissibility. Landon v.
U. S., 197 F. 2d 128 (2 Cir.). But actually, plaintiff’s pleadings
did not charge Dr. Valenzi with any wrongdoing, for it is there
alleged the hospital attendant abused plaintiff. See footnote 1,
supra, page 6. This was not the result of confusion since plain-
tiff knew who the doctor was and who the hospital attendants were
(R. 33-34). Moreover, plaintiff’s charges were absolutely baseless,
as is amply demonstrated by plaintiff’s testimony that after he was
allegedly abused in the hospital and after he returned to stay in
his cabin, he voluntarily left his cabin and he requested to and was
allowed to sleep in the hospital (R. 36-37), and by plaintiff’s testi-
mony that on his return trip he could have selected another ship
but instead he returned on the same ship (R. 103) and that he had
no hesitaney to return to the hospital and obtain pills from the
doctor (R. 104). No doubt this evidence was considered by the
jury and influenced it in arriving at the verdict it did.
first established that Exhibit G came from the surgery log,
testifying as follows (R. 152):
**Q. Did you have any ccaversation with him
(plaintiff)? A. Yes. * * *
‘*Q. When Mr. Terrasi made the statement to
you that you entered in your report, did you write
it down in a book? * * * A. In my log.
“*Q. Is that the medical log? A. Surgery; yes.’’
Continuing, Dr. Valenzi establisiied the entry was made
within a reasonable time after the event, either while plain-
tiff was still in the room ‘‘or in the hospital already’’
(R. 153) :
‘*Q. Which one did you make first (the entry in
the surgery book or the written report to the cap-
tain)? <A. In the surgery book; this is my every-
day work.
“*@. At the time you made the entry in the
surgery book, was Mr. Terrasi still in the room? A.
Yes, or in the hospital already.
‘*Q. Well you wrote down what he told you? A.
Yes.”’
The doctor then established that this entry was made in
the regular course of business (R. 154):
**Q. Now, Doctor, you keep a book during the
regular course of your practice of medicine, during
your regular course of business here on the ship?
A. Yes.
**Q. Which book is that? A. The surgery book.
‘*Q. Is this where you make all entries pertain-
ing to treatments? <A. All things that happen; all
kind of things; everybody that comes inside is
entered in this book.
‘*Q. And this book is kept in your regular course
of business? A. Yes, the name of the patient, the
number of the cabin, his treatment.
pe RY RRR tet eT WO
Sate gh
| Seen Neh AAS
10
**Q. There is not any other place where you make
an entry outside of this book? A. No.
**Q. You keep this book yourself, personally?
Nobody else makes any entries here? A. No. I
am responsible here. When I have a colleague, my
colleague does the same thing.’’
There is no justification for the suggestion in the peti-
tion that Dr. Valenzi first testified that he did not keep
any records, but after changing his mind injected the
surgery log entry into the case (Petition, p. 7). Plaintiff’s
attorney well recognizes that the portion of Dr. Valenzi’s
testimony dealing with the absence of records relates to
records other than those kept in the surgery log, for plain-
tiff’s attorney himself brought out to the jury the following
(R. 282):
‘*@. And you kept no other records, either of
your treatment of this man, Terrasi, other than what
you claim you entered in your log journal or your
medical journals
The Exhibit B for identification (now Exhibit G
in evidence).
‘“A. Exactly.’’
The unfounded argument contained in the petition that
the entry in the surgery log is a ‘‘manufactured piece of
evidence’’, is nothing more than a repetition of the iden-
tical inflammatory and emotional appeal which plaintiff’s
attorney presented to the jury and which the jury neces-
sarily rejected by finding against the plaintiff (R. 343-4,
347-353).
The federal statute dealing with the admissibility of
entries made in the regular course of business, Section 1732,
28 U.S. C. categorically provides that all questions affect-
ing the weight of the document are to be resolved as ques-
11
tions of fact and shall not affect the admissibility of
the document. Not only is there no merit to plaintiff’s
unjustified attack on the authenticity of the document, but
assuming that an issue of fact existed, the jury has already
resolved that question against the plaintiff.
Oise? id.
THERE IS NO CONFLICT BETWFEN THE DECISION AT BAR
CONSTRUING THE FepeRAL Business Lnrrizs SratuTe AND
DECISIONS OF STATE COURTS CONSTRUING SIMILAR STATE STATUTES
INASMUCH AS A HISTORY OF DIZZINESS GIVEN BY A PATIENT
TO A DOCTOR IS OBVIOUSLY GERMANE TO DIAGNOSIS OR TREATMENT.
The petition asserts that the alleged conflict between
the Court of Appeals for the Second Cireuit and the New
York State Court of Appeals, as well as those other juris-
dictions cited by the New York State Court of Appeals
in Williams v. Alexander, 309 N. Y. 283, should be resolved
by this Court so that all of the Federal Courts and the
courts of those states having Business Records Acts similar
to the federal Business Entries Statute will have uniformity
in applying the law under such Acts (Petition pp. 0-6 & 11).
But the petition does not aver that there is any conflict
in the federal decisions interpreting the federal Business
Entries Statute.
Because state courts have interpreted similar state pro-
cedural statutes differently presents no federal question
and quite obviously does not give rise to a conflict in
decisions involving interpretation of the particular federal
statute with which this case is concerned. On this ground
alone certiorari should be denied.
But in any event, the decision in the ease at bar is not
at all in conflict with state court decisions interpreting
ee EEE
12
their own local similar statutes and therefore the question
which petitioner would have this Court review is clearly
not presented in this case.
The petition relies solely on the four to three decision
of Williams v. Alexander, 309 N. Y. 283 and the cases from
other state courts which it cites. But the Williams case
holds only that a detailed narrative history of an accident
so far as it is not germane to treatment or diagnosis is
inadmissible, as distinguished from those portions of the
history which may in any way be helpful to an understand-
ing of the medical aspects of the patient’s case, which are
admissible. The Williams case explicitly states (309 N. Y.
at page 288) :
‘*In some instances, perhaps, the patient’s expla-
nation as to how he was hurt may be helpful to an
understanding of the medical aspects of his case;
it might, for instance, assist the doctors if they were
to know that the injured man had been struck by an
automobile (see Scott v. Gibbons Co., supra, 192 Md.,
319, 330; ef. Roberto v. Nielson, supra, 288 N. Y.,
581; Watts v. Delaware Coach Co., supra, 44 Del.,
283). However, whether the patient was hit by car
A or car B, by car A under its own power or pro-
pelled forward by car B, or whether the injuries
were caused by the negligence of the defendant or of
another, cannot possibly bear on diagnosis or aid in
determining treatment.’’
We respectfully submit that in the instant case the
patient’s explanation as to how he was hurt, viz: he suffered
a dizzy spell, cannot be said other than to be helpful to an
understanding of the medical aspects of the case because
knowledge of a dizzy spell clearly bears on a doctor’s
decision as to the extent of sedatives, bed rest, and other
treatment to prescribe, as well as on the ultimate diagnosis.
13
POINT 22%.
IN ANY EVENT THE QUESTION SOUGHT TO BE RAISED BY THE
PETITION WOULD NOT BE DISPOSITIVE OF THE APPEAL SINCE
Exursir G was ADMISSIBLE NOT ONLY UNDER NON-STATUTORY
PRINCIPLES OF EVIDENCE AS AN ENTRY IN A SHIP’S LOG, BUT
ALSO BECAUSE PLAINTIFF SPECIFICALLY CONSENTED TO ITS BEING
READ INTO EVIDENCE. Moreover, THE HISTORY OF DIZZINESS
HAD ALREADY BEEN TESTIFIED TO ORALLY BY THE DOCTOR INVOLVED
WITHOUT OBJECTION FROM PLAINTIFF SO THAT THE CONTENTS
oF Exnisit G was MERELY CUMULATIVE EVIDENCE,
a. Exhibit G was admissible as an entry in a ship’s
log.
As an entry in the ship’s surgery log (R. 152), the
entry was properly received in evidence inasmuch as there
is abundant authority holding that entries in ship’s logs
are admissible whether offered by the plaintiff or by the
defendant, and whether offered in an admiralty suit or in a
civil suit.
Thus, in Lopoczyk v. Poling, 152 F. 24 457 (2 Cir.) the
court (in holding admissible the following log entry : ‘‘Note.
At 11:40 A. M., the u. bolt welded to the mast holding the
hoom, let go, in the weld, the boom fell down striking Capt.
W. Lopoezyk with the result that he was taken by ambu-
lance to Greenpoint hosp. in a critical condition.’’), stated
at pages 459-460:
‘Since the ship’s log is clearly admissible in
admiralty, Warner Barnes & Co. vr. Kokosai Kisen
Kabushiki Kaisha, 2 Cir., 192 F. 2d 450. modified
2 Cir., 103 F. 2d 430; The Georgian, 5 Cir. 76 F. 2d
550; The Earnest H. Meyer, 9 Cir., 84 F. 2d 496,
certiorari denied Hammond Lumber Co. r. Broughton
Pawnee ng
Sesot
ete Pee Ae ee RRR el
3
MRR BRS. Wee Ne
ee eos WE RI NE ow,
14
& Wiggins Nav. Co., 299 U. S. 600, 57 S. Ct. 193,
81 L. Ed. 442, it should likewise be admissible under
the Jones Act. We can see no reason for adoption
of a hypertechnical distinction in the rules of evi-
dence which would lead to anomalous results, par-
ticularly in cases involving major principles of
proof.’’
In Naylor v. Isthmian Steamship Company, 187 F. 2d
538 (2 Cir.), the lower court refused to admit a log
entry offered by the defendant, who prepared the log entry.
The Court of Appeals reversed, declaring at page 540:
‘The smooth log was admissible both under the
Business Entry Statute, 28 U. 8S. C. A. $1732, and
under general admiralty practice which is applicable
to the admissibility of evidence in actions under the
Jones Act. Lopoczyk v. Chester A. Poling, Inc.,
2 Cir., 152 F. 2d 457.”’
b. Exhibit G was admissible since it was read into
evidence and to the jury with the explicit consent
of plaintiff.
Exhibit G as admitted was in a foreign language and
until translated obviously it meant absolutely nothing to
the jury. While an interpreter had for the guidance of the
court translated Exhibit G (R. 197-199), this had all taken
place in the absence of the jury (R. 199). Naturally, after
the jury retired and it glanced at Exhibit G written in a
foreign language it would, as it did, ask for a translation
of it (R. 338). At this point plaintiff’s attorney instead of
preserving the objection he had previously taken to Exhibit
G, reversed his position and explicitly consented not only
to the interpreter’s translation of the exhibit being read to
the jury (R. 388), but also to the jury’s being furnished
with a transcript of the translation marked Def. Ex. J. id.
(R. 389).
15
While it has held that an objection to evidence once
made need not be repeated through the trial to preserve
the rights of the appellant (Keen v. Overseas Tankship
Corp., 194 I’. 2d 515 (2 Cir.) cert. denied 343 U. S. 966;
Coulo v. United Fruit Co., 203 ¥. 2d 456 (2 Cir.)), those
cases are obviously inapplicable where a party, as here,
instead of failing to take an objection, explicitly consents
to the evidence being furnished to the jury.
Cc.
Oral testimony unobjected to by plaintiff had
already been given the jury by Dr. Valenzi of
the history of dizziness so that Exhibit G which
also contained this history was merely cumulative
of other adequate evidence.
Before Exhibit G was admitted into evidence, Dr.
Valenzi gave the following testimony which the record
clearly shows was oral testimony and not from any docu-
ments (R. 161):
“*@. Did any conversation between you and he
take place?’ A. Nothing besides the cireumstances
that accompanied the wound.
*Q. Did you ask him what happened to him? A.
Of course I did.
**Q. What was his answer? Will you tell me his
words? A. Exactly I couldn't tell you his words but
what he said was this: that going down from the deck
where the toilets are to deck C where his cabin was
he felt dizzy and he fell down and struck his head
against the stairease (indicating).
The Court: That is well done. That is all right.
He doesn’t object to it.
Mr. Graham: That is my own cross examination.
I am cross examining him on what he was reading
from a paper before.
The Court: The questions are all right. You
asked the questions yourself, so don’t find fault.
ya INI,
16
Mr. Graham: I am not finding fault with it.’’
(Emphasis supplied.)
Dr. Valenzi had also testified (R. 288) :
‘*Q. Did Mr. Terrasi tell you whereabouts on the
ship he was hurt? A. He told me from deck B down
to deck C, he fell on the staircase.’’
All of the above testimony was received without objec-
tion by plaintiff’s counsel (R. 161, R. 288, R. 97).
Since Exhibit G contained nothing more than what
already had been testified to without plaintiff’s objection,
it was merely cumulative evidence and, therefore, even if it
were error to admit the exhibit, the error did not prejudice
plaintiff. Tucker v. Loew’s Theatre & Realty Corp., 149 F.
2d 677, 680 (2 Cir.).
ConcLusion.
The petition for a writ of certiorari should be denied.
Respectfully submitted,
Louis J. GusMano,
Counsel for Respondent,
South Atlantic Lines, Ine.
Kiri, Campsett. & Keatine,
of Counsel.
February, 1956.
(9914)
i
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