Petition for Writ of Certiorari — Erickson v. Medina

STATEMENT OF THE CASE...

SUBJECT INDEX

Page

2-9

ARGUMENT

Il.

III.

IV.

. Conclusion

The District Court properly admitted hospital rec-

ords into evidence consisting of consultation re-

ports of Dr. John C. Jones and Dr. Grant Beck-

strand, Cancer Experts

9-18

The Court of Appeals correctly held that the ship-

ping articles were ambiguous and that extrinsic

evidence was admissible to show the intent of the

parties to serve aboard the vessel for one trip or

voyage rather than for a period of twelve months.

Petitioner cites no authority in support of Point III

18-23

23

of Argument

The District Court found and the record over-

whelmingly supported the finding that Respondent

Medina was not negligent; that the pain and suffer-

ing, if any, of Erickson and his resultant death was

24-25

caused by cancer

25

TABLE OF AUTHORITIES CITED

Cases

Page

Baltimore & O. R. Co. v. O'Neill, 211 F. 2d 190 (6 CCA

1952) 12

Buckminster's Estate v. Commissioner, 147 F. 2d, 331

(2 CCA 1944) 14

Chapman v. United States, 194 F. 2d 974 (5 CCA 1942) 12

England v. United States, 174 F. 2d 466 (5 CCA 1949)...11

Farrell v. United States, 336 U. S. 511 (1949)...

Gencarella v. Fyfe, 171 F. 2d, 419 12

Glazier v. Sprague S. S. Co., 103 F. Supp. 157 (D.C. E.D.

Pa.) 13

Googe v. U.S. 101 F. Supp. 830 (N.Y. 1951) 17

Gordon v. Robinson, 210 F. 2d 192 (3 CCA 1954) a |

Hunter v. Derby Foods, Inc., 110 F. 2d 970 14

Luksich v. Mitisch, 140 Fed. Rep. 2d 812_ 21

Lykes Bros. S.S. Co. v. Grubaugh, 128 F. 2d 466 (5 CCA

1942) 12

Masterson v. Pennsylvania R. Co., 182 F. 2d 793 (3 CCA

1950) 10

Missouri-K.T. R. Co. of Tex v. Ridgway, 191 F. 2d 363,

(8 CCA 1951) 17

Moran v. Pittsburgh-Des Moines Steel Co., 183 F. 2d 467

(3 CCA 1950) 17

TABLE OF AUTHORITIES CITED (Continued)

New York Life Ins. Co. v. Taylor, 147 F. 2d 297 (D.C.

CCA 1944) 9, 13

Palmer v. Hoffman, 318 U.S. 109 (1943) 13, 14

Pekelis v. Transcontinental & Western Air, 187 F. 2d 122

(2nd CCA 1951) 12, 13

Ranger, Inc. v. Equitable Life Ass. Soc. of U.S., 196 F. 2d

968 (6 CCA 1952) | 12

Reed v. Order of United Commercial Travelers of America,

123 F. 2d 252 14

Schering Corp. v. Marzall, 101 F. Supp. 571 (D.C. Dist.

Col.) 12

The Quoque, 261 Fed. Rep. 414 19

The Thomas Tracy, 24 Fed. Rep. 2d 372 20

Statutes

Title 28 U.S.C.A., Section 1732 11

46 US.C.A. Section 541 19

46 US.C.A. Section 566 19

Textbooks

Barron & Holtzoff, Federal Practice & Procedure, Vol. 2,

Page 696-697 13

No. 494 Misc.

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1955

SARA ERICKSON, Administratrix of the

Estate of Peter Erickson, Deceased,

Petitioner,

MANUEL MACHADO MEDINA,

Respondent.

RESPONDENT'S ANSWER

TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the Honorable, The Chief Justice and the Associate

Justices of the Supreme Court of the United States:

The Answer of Respondent, MANUEL MACHADO

MEDINA, to the Petition for Writ of Certiorari, respectfully

shows:

confi

STATEMENT OF THE CASE

In Respondent's opinion, Petitioner has not made a fair

statement of the facts found in this case, and Respondent, in

the interest of coherence, will completely restate the facts.

CATR refers to Cross-Appellant’s Typewritten Transcript of

Record. TR. refers to the printed Transcript of Record.

Peter Erickson, hereinafter referred to as “Erickson” was

an engineer, a member of the Machinists Union, A.F. of L., and

employed in the capacity of engineer aboard tuna vessels, (Ex-

hibit E). In May, 1947, Erickson was employed as Chief Engineer

aboard the fishing vessel MARY LOU. He became ill in the

early part of said voyage and was flown back from Guaymas,

Mexico, to San Pedro, California, with a lung infection. He

was sent to the desert for some time and resumed his occupation

as an engineer upon his return. (Exhibit Q, CATR. p. 114). On

October 17, 1947, Erickson sailed as Chief Engineer on the F/V

PATRIA, and executed shipping articles with the master of said

vessel. (Exhibit F). On December 29, 1947, Erickson sailed

again aboard the F/V PATRIA and executed new shipping

articles. (Exhibit G). On April 12, 1948, Erickson sailed as

Chief Engineer on the F/V ALPHECCA and executed new ship-

ping articles. (Exhibit 4). The crew members of the F/V

ALPHECCA executed the same form of shipping articles on

April 12, 1948, (Exhibit H) and again on September 28, 1948

(Exhibit I). None of the purported shipping articles were

executed before a Shipping Commissioner, but new shipping arti-

cles were executed prior to each trip. (Exhibits F, G, 4, H and 1).

Prior to sailing, Respondent Medina, master and part owner

of the F/V ALPHECCA, executed a written agreement with the

“8 en St

Cannery Workers and Fishermen's Union and the Machinists

Union, of which the decedent, Peter Erickson, was a member

(Exhibit E), regulating working conditions, rate of pay, division

of profits between owners and crew, safety of the ship, and

related matters. Said agreement, (Exhibit E) provided in part

as follows:

“Article 5 .

SECTION 2. (a) If any member becomes ill or is

injured accidentally on the boat in line of duty, either at sea

or in port, a doctor's certificate may be required by the

master before permitting said crew member to leave the

fishing grounds to return home. Any crew member returning

home with the captain's approval shall receive a full share

for that particular trip only. The cost of transportation home

shall be paid by the boat owners. If thereafter the captain

employs a substitute to take such man’s place upon return to

port, then the amount paid the substitute shall be considered

trip expense.” (Emphasis ours).

Peter Erickson was a member of the Machinists Union and

a person in whose behalf the agreement was executed.

On April 12, 1948, prior to sailing, Peter Erickson and other

members of the crew of the F/V ALPHECCA signed purported

shipping articles with Manuel Machado Medina as master (Ex-

hibit 4) which provided in part as follows:

“It is agreed between the master and seamen of the

American oil ship ALPHECCA, of which Manuel M.

Medina is at present master, or whoever shall go for master,

now bound from the port of San Diego, California, to Balboa,

Canal Zone, and other ports and points on the Pacific Coast

and return, for one or more trips and such other and

places in any part of the world as the master may direct, and

aiid

back to a final port of discharge in the United States for a

term of time not exceeding 12 calendar months.”

It was the established custom in the San Diego Tuna Clipper

Fleet, of which the F/V ALPHECCA was a part, for seamen,

including chief engineers, to be hired for one voyage only and

that the word “voyage” was synonymous with the word “trip.”

(Tr. p. 151).

On April 12, 1948, at the time Erickson sailed as Chief Engi-

neer on the F/V ALPHECCA, Erickson was 49 years of age,

having been born on January 3, 1899.

On or about May 10, 1948, it was noted either by Emmett

Fowler, the navigator, or Thomas Taylor, the cook, that Erickson

had a cold and in the late afternoon of said day Emmett Fowler

took Erickson’s temperature and found it to be 102°. (CATR.

pp. 36, 68 and 69, Tr. p. 111). This fact was reported to the

Respondent Medina who ordered Erickson to bed. (Tr. p. 111).

Erickson went to bed where he stayed continuously until he left

the F/V ALPHECCA at Acapulco, Mexico, on May 21st about

noon, except for going to the toilet and for a period of fifteen

minutes to thirty minutes when he was rowed from the F/V

ALPHECCA to the F/V QUEEN VICTORIA and returned to

the F/V ALPHECCA on or about May 19, 1948. (CATR. pp.

49-52). Respondent Medina instructed Emmett Fowler, the navi-

gator, and Thomas Taylor, the cook, to attend to the medical and

physical needs of Erickson. Emmett Fowler, who was in frequent

attendance of Erickson, had been an officer in the Navy from

1941 to 1945. He had served aboard submarines as Engineer

Officer and as Executive Officer and had had considerable experi-

ence in treating colds. He had in a number of cases in the Navy

Fo

administered various sulfa drugs and penicillin to men on sub-

marines. (CATR. p. 62). While Erickson was in bed, all of his

meals were served to him by Thomas Taylor, the cook, who at

intervals during the day attended to Erickson’s wants. Erickson

was served with special food prepared by Mr. Taylor and he was

given various fruit juices which were available at all times, includ-

ing tomato and grape juice. (CATR. p. 321). He was given

alcohol rubs twice a day. He was given aspirin and made to drink

substantial amounts of water. One complete course of twelve

pills of sulfa-thiazole and a partial course of nine pills of sulfa-

thiazole were given. (CATR pp. 78, 79, 80 and 81). His chest

was rubbed with Vick’s Vaporub and similar liniments. From the

time Erickson went to bed until the time he left the F/V AL-

PHECCA on May 21st at approximately noon he had morning

temperatures of approximately 99.5° rising to 102° or 103° in

the late afternoon, except that on May 21st at 10:45 A.M. his

temperature for the fizst time dropped to a subnormal of 96.8°.

(Exhibit 9, CATR Vol. III, p. 448). Several days prior to sending

a message to Public Health Service for advice, Mr. Fowler sug-

gested to Respondent Medina that Public Health Service be

contacted for medical advice. (Tr. p. 110 and 112). The first

message requiring advice was sent to Public Health Service on

May 17th. (Exhibit B, Tr. p. 110). An answer was received

from Public Health Service on May 14th prescribing a course

of treatment, which course of treatment had been and was fol-

lowed. (CATR p. 84, et seq. pp. 88 and 89). Further informa-

tion was furnished as requested and on May 18th a message was

received from Public Health Service advising that they put into

the nearest port with medical facilities. (CATR p. 42); that all

of the medicines were available and the instructions given by

ten

Public Health Service were followed, (CATR pp. 88 and 90);

that at all times between May 10th and May 21st the weather

was warm and the sea was calm; that at the time of the receipt

of the message to put into the nearest port with medical facilities

the F/V ALPHECCA was approximately 447 nautical miles from

Acapulco, the nearest port with medical facilities; that the last

message was received from Public Health Service about 10:00

A.M. and that at that time the vessel was fishing and catching

fish, (Tr. p. 113); that approximately two hours later the F/V

ALPHECCA rendezvoused with the F/V QUEEN VICTORIA

which was headed for San Diego, California, (CATR p. 49, Tr.

p. 113); that Erickson was taken over in a row boat to the F/V

QUEEN VICTORIA for the purpose of securing transportation

for him to San Diego on said vessel; that the master of said

vessel refused to accept Erickson as a passenger and he was im-

mediately returned to the F/V ALPHECCA (CATR pp. 51, 52,

Tr. p. 114); that immediately thereafter the F/V ALPHECCA

departed for Acapulco, (CATR p. 52); that en route to Acapulco

the vessel stopped for approximately one hour and fished, catch-

ing three ton of fish (Exhibit 5); that the vessel arrived at Aca-

pulco at approximately 10:00 A.M. on May 2ist; that Erickson

left the F/V ALPHECCA about noon on May 21st and was

rowed ashore in a row boat; that between May 18th and May 21st

Emmett Fowler daily injected Erickson with 3,000 units of peni-

cillin in oil and wax; that daily between said dates Erickson

received Terpin-hydrate and Kodeine and four tablets of Thomp-

son’s Vitamin Mineral tablets. On May 18th and 20th he received

Sodium-phenobarbital. (Exhibit 9).

That immediately on arrival at Acapulco on May 21, 1948,

Erickson was seen by a doctor of medicine and given additional

PaO Pane dee eae ET ee

—_

penicillin shots and other medication and on said date he flew by

air from Acapulco to Mexico City, accompanied by a Mexican

doctor. (CATR pp. 53, 233). Upon arrival in Mexico City he

took passage on an airplane bound for Los Angeles where he

arrived on the evening of May 22nd. He remained at home on

May 23rd, Sunday, and was examined by Public Health Service on

May 24th, and by them sent to McCornack General Hospital in

Pasadena on May 25th. (Exhibit B, Exhibit C). X-ray pictures

were taken of Erickson at McCornack General Hospital. (Exhibit

10-A to 10-O inclusive). X-ray plates were taken in the office

of Dr. Petrich and at the San Pedro General Hospital. (See Ex-

hibits 10 and 11, A, B,C, and D). That in all respects the treat-

ment given Erickson while he was in McCornack General Hos-

pital was comparable to the treatment which he had received

aboard the F/V ALPHECCA, (Exhibit C, Exhibit 10). Erickson

was released from McCornack General Hospital on June 25th but

advised to return in three weeks for another chest x-ray inasmuch

as there was a possibility that the pneumonia was secondary to a

pulmonary neoplasm or cancer. (Exhibit 10, Final Summary).

That while Erickson was in an outpatient status at McCornack

General Hospital on July 23rd he went to see his own private

physician, Dr. John M. Petrich, who had been his personal physi-

cian for several years. (Exhibit R, p. 3). Erickson saw Dr.

Petrich again on July 30th, August 3rd, August 6th and August

23rd. (Exhibit R, pp. 6 and 8). On August 25th Erickson entered

the San Pedro General Hospital as a patient of Dr. Petrich where

he remained until his death on October 8, 1948; that while he was

at San Pedro General Hospital x-rays were taken and a radiological

report made thereon by Dr. Maurice M. Haskell who concluded as

a result of his study of an x-ray plate taken of Erickson on August

a

25, 1948, that Erickson was suffering from probable malignant

neoplasm bronchiogenic carcinoma and a lymphoblastoma and

two possible unusual resolved inflammatory process. (Exhibit

D-7). On August 29, 1948, Dr. John C. Jones, a well-known

expert in the field of internal medicine, was called in as a con-

sultant by Dr. Petrich at the request of Mrs. Sara Erickson, wife

of Erickson, to examine Erickson to determine the cause of his

illness and to prescribe treatment. (CATR p. 189). Dr. Jones

personally examined Erickson, reviewed the hospital records and

then stated in his own handwriting in a consultation report filed

with the hospital records (Exhibit D-9) that in his opinion Erick-

son was suffering from an inoperable bronchiogenic carcinoma

and that his condition was hopeless. (Exhibit D-9).

On September 4th Dr. Grant Beckstrand, a cancer expert

from Long Beach, was called in for consultation by Dr. Petrich

at the request of Mrs. Sara Erickson, wife of Erickson, and per-

sonally examined Erickson and reviewed the hospital charts and

concluded in a consultation report in his own handwriting that

in his opinion Erickson was suffering from a bronchiogenic car-

cinoma with liver involvement and that his case was hopeless.

(Exhibit D-9). That the consultation reports were a part of the

hospital records of the San Pedro General Hospital and required

to be kept, and were made at or about the time the consultation

took place.

Erickson died on October 8, 1948. Dr. Petrich, his physician,

prepared a death certificate and certified the cause of death to be

bronchiogenic carcinoma for one year plus with contributing

cause to be metastasis to the liver for three months plus. (Exhibit

P). That at the time of the trial, Dr. John Eneboe, a radiologist,

examined all of the x-ray plates which were in evidence at the

9

trial and stated that in his opinion Erickson died as a result of a

bronchiogenic carcinoma, and the witness, by reference to the

x-tay plates, outlined the area and growth of the cancer.

ARGUMENT

THE DISTRICT COURT PROPERLY ADMITTED

HOSPITAL RECORDS INTO EVIDENCE CONSIST-

ING OF CONSULTATION REPORTS OF DR. JOHN

C. JONES AND DR. GRANT BECKSTRAND, CAN-

CER EXPERTS.

Questions number I and II presented for review, and argu-

ment in support of the reasons relying upon for the allowance of

the writ, point number I, may be considered together because they

all consider the same question, to wit: Did the District Court err

in admitting into evidence the hospital records of the San Pedro

General Hospital, including the consultation reports of Dr. John

C. Jones and Dr. Grant Beckstrand, cancer experts who were

called into the case by the attending physician at the request of

the wife of the decedent? These men both made personal exam-

inations of the decedent Erickson, studied the hospital records

and charts, and each gave their diagnosis from their personal

knowledge thereof.

Petitioner's claims are not supported by the authority cited

by him. In the case of New York Life Ins. Co. v. Taylor, 147 F.

2d 297 (D.C.C.C.A. 1944), in a two to one decision in which a

Seca ppt ne mons Dip SPP IO TOI ZAMS BF Sa aL

—10—

very vigorous dissent was written by Associate Justice Edgerton,

the Court affirmed the ruling of the trial court in refusing the

admission, among other things, of the following: (1) Reports

of conversations with the assured indicating that he had attempted

suicide, (2) Report of consultation with a psychiatrist containing

statements by the insured that he wished to die, and (3) Report

of a psychiatrist showing a diagnosis of psychoneurosis hysteria,

conversion type. The court in the statement of facts shows that

much of the information contained in the psychiatrist's report was

not based on personal observation by the psychiatrist, but upon

previous history and what he had been told by others. The court

after rehearing held that this was not admissable, but in con-

clusion the majority of the court held as follows at page 306:

“The entire hospital records offered in this case are not

before us. It may be that some of the entries are admissible.

The test should be whether they are records of a readily

observable condition of the patient or of his treatment. There

is no magic in the word diagnosis which makes everything

which can be included in that term admissible. Some diag-

noses are a matter of observation, others are a matter of

judgment, still others are a matter of pure conjecture. The

admissibility of records of such diagnoses must depend upon

their character. Certainly the hearsay accounts and the psy-

choneurotic conjectures contained in these records cannot be

received without cross-examination as proof of a tendency

to commit suicide.”

The case of Masterson v. Pennsylvania R. Co. 182 F. 2d 793

(3 CCA 1950) was a case where a doctor of medicine wrote letters

—|

to the railroad’s chief medical examiner. Copies of these letters

were attached to an answer to interrogatories filed by the plaintiff

in the action. The letters indicated that the doctor had given

plaintiff an examination and gave facts and history, findings and

conclusions. They were admitted to evidence over objection. The

court held that they were erroneously admitted.

Gordon v. Robinson, 210 F. 2d 192, (3 CCA 1954), involved

the admissibility of conclusions of a police officer given on the

witness stand. Although the Federal Business Records Act, Title

28 U.S.C.A. Section 1732, was not involved in that case, the court

by way of dicta expressed its opinion on the admissibility of opin-

ions and conclusions and hearsay statements contained in a police

officer's report, and held in that case that such a report was not

admissible in evidence under the Federal Business Records Act,

supra. The court ai page 198, however, did establish one test for

admissibility:

“* * * A record to be admissible should derive from

an efficient clerical system and should be of such a nature

that it would be competent evidence if testified to by its

In England v. United States, 174 F. 2d 466 (5 CCA 1949)

hospital records were involved but the record was full of Eng-

land's account of his past life which was clearly hearsay, there

were statements of opinions of individual physicians based on the

past history and on England's repeated absences without leave

resulting in his being tried four times by court-martial, and con-

clusions being expressed that he suffered from mental deficiency

(organic brain disease). The court held these records

inadmissible.

—

Lykes Bros. $.S. Co. v. Grubaugh, 128 F. 2d 466 (5 CCA

-942) was of little help containing only a minimum discussion

of the problem.

In Chapman v. United States, 194 F. 24 974 (5 CCA 1942)

there was involved the report of an Army Air Force Board con-

cerning an airplane accident held inadmissible. It would appear

that the decision in this case has been overruled by the case of

Pekelis v. Transcontinental & Western Air, (2nd CCA 1951) 187

F. 2d 122, in which case certiorari was denied by the Supreme

Court, 71 Supreme Court 1020, 341 U.S. 951, 95 Law Edition

1374, to which extensive reference will be made in a few moments.

In Baltimore & O. R. Co. v. O’Neill, 211 F. 2d 190 (6 CCA

1952) x-ray film were taken and a report thereon made for the

appellant's medical witness and apparently furnished for the

purpose of litigation. The court excluded the evidence.

In Ranger, Inc. v. Equitable Life Ass. Soc. of U.S., 196 F. 2d

968 (6 CCA 1952), there is just a bare discussion of the problem

in which the circuit court held that the district judge correctly at-

tempted to restrict the use of hospital records to the entries which

showed the dates of entry into and the discharge from the hospital.

The court stated that reference in the hospital record to surgery,

Operation and anaesthetic were improperly admitted but were not

prejudicial. This narrow view is obviously not the law.

In the case of Gencarella v. Fyfe, 171 F. 2d 419, there was

involved a police report of an accident which involves an entirely

different concept from that presented here.

In Schering Corp. v. Marzall, 101 F. Supp. 571 (D.C. Dist.

Col.) there was involved laboratory notebooks which the court

found had not been identified by the person who made the entries

or by any person who saw these books contemporaneously with

i j3—

the evidence which they purported to record. They were held

inadmissible.

In the case of Glazier v. Sprague S. S. Co., 103 F. Supp. 157

(D.C. E.D. Pa.) syllabus number 1 seems to support the view

that diagnoses of physicians at a U. S. Naval Hospital relative to

what caused disability of seamen were not admissible in evidence,

but there was nothing in the case to substantiate the statement in

the syllabus; the findings of fact, conclusions of law and discus-

sions of the court indicate that the records were admissible as

evidenced by the court's statement at page 158 when the court

said in finding 3:

“On April 3, 1946, plaintiff was admitted to U. S. Naval

a 0g at Philadelphia suffering from a coronary oc-

clusion. * * *’

Petitioner also relies on Barron & Holtzoff, Federal Practice

& Procedure, Vol. 2, pages 696-697, but the text writer is merely

summarizing the holding of the majority of the court in New York

Life Ins. Co. v. Taylor, supra, and cites that case in support of the

principle enunciated.

It is submitted that this court has put to rest the points raised

by petitioner in connection with the admissibility of the consulta-

tion reports when this court denied a writ of certiorari in the case

of Pekelis v. Transcontinental & Western Air, supra. In that case

there was involved the admissibility of the findings, conclusions

and recommendations of an Investigation Board which was re-

quired by the defendant in the event of any aircraft accident

involving defendant's international aircraft. We quote extensively

from the case because the circuit court in that case states rather

clearly its position in regard to its interpretation of Palmer v.

nati.

Hoffman, 318 U.S. 109 (1943) and cites with approval the cases

of Hunter v. Derby Foods, Inc., 110 F. 2d 970, Reed v. Order of

United Commercial Travelers of America, 123 F. 2d 252, Buck-

minster's Estate v. Commissioner of Internal Revenue, 147 F. 2d

331, and this Honorable Court denied a writ of certiorari in said

case. The court, at page 129 states as follows:

“The plaintiff finally argues that the reports were ad-

missible under the Federal business entry statute, 28 U.S.C.A.

Sec. 1732, which is set forth in the margin. Defendant re-

lies that the decision of the Supreme Court in Palmer v.

ffman, 318 U.S. 109, 63 S.Ct. 477, 87 L. Ed. 645, pre-

cluded the admission of the reports. In the course of the

opinion by Mr. Justice Douglas in that case it was said:

“An accident report may affect (the) business in the

sense that it affords information on which the management

may act. It is not, however, typical of entries made system-

atically or as a matter of routine to record events or occur-

rences, to reflect transactions with others, or to provide in-

ternal controls. * * * In short, it is manifest that in this

case those reports are not for the systematic conduct of the

enterprise as a railroad business. Unlike yrolls, accounts

receivable, accounts payable, bills of | ing and the like

these reports are calculated for use essentially in the court,

not in the business. Their primary utility is in litigating, not

in railroading.’ 318 U.S. 113, 114, 63 S. Ct. 480.

“The reports in the case at bar were ‘regular’ within

the meaning of the statute, because they were required not

merely in investigating the accident at the Shannon Airport

but all future accidents. However, the opinion of the Su-

preme Court added that regularity of preparation would not

in itself be enough to justify the use of the evidence. We

think the court evidently was aiming at the evils of introduc-

ing evidence built up to promote the self-interest of the

entrant. Thus, the opinion stated that the purpose of the

act was to ‘facilitate admission of records which experience

—]5—

has shown to be quite trustworthy.’ 318 U.S. 113, 63 S. Ct.

480. Accordingly, ‘the character of the records and their

earmarks of reliability * * * acquired from their source

and origin and the nature of their compilation’ was said to

be the test for their qualification under the statute. 318 U.S.

114, 63 S. Ct. 480. The Circuit Court of Appeals had ex-

“The reports in the case at bar were against the interest

of the entrant when made, since they charged serious fault

on the part of employees Both and Langsdale, and whether

or not completely accurate were clearly not part of a story

cooked up in advance of litigation in the disguise of business

records. Moreover, it is not the entrant who here sought to

introduce the reports, but the plaintiff, and this too tends to

show that they were not contrived by the entrant for litigation.

Palmer v. Hoffman was given the above interpretation by

this court in United States v. Moran, 151 F. 2d 661, 662, 167

A.L.R. 403, and v. Chester A. Poling, Inc., 152 F.

2d 457, 460, note 4. We hold that Palmer v. Hoffman did

not preclude the reception under the business entry statute

of the reports offered in the case at bar.

“It might be argued on behalf of the defendant that the

reports did not constitute a ‘record of any act, transaction, oc-

currence, or event’ within the meaning of the statute because

ner regarding matters within their expert competency have

been held admissible as business entries by this court. Hunter

v. Derby Foods, Inc. 110 F. 2d 970 (coroner's death certifi-

cate); Reed v. Order of United Commercial Travelers of

America, 123 F. 2d 252 (hospital record); Buckminster’s

Estate v. Commissioner of Internal Revenue, 147 F. 2d 331

otitis.

(hospital record). We hold that inferences drawn by boards

such as those set up in the present case were of the same

general character, and were admissible.

“It may further be argued that the conclusions in the

reports were in part derived not from the personal observa-

tion of the entrant, but from information supplied by persons

under no business duty to report, and that were, there-

fore, not ‘made in regular course of any business’ within the

meaning of the statute. In Moran v. Pittsburgh-Des Moines

Steel Co., 183 F. 2d 467, 473, the Court of Appeals for the

Third Circuit, per Goodrich, J., in dealing with an accident

investigation by the Bureau of Mines of the United States

t of the Interior, held as follows: “The report is

no less admissible because it contains conclusions of experts

which are based upon hearsay evidence as well as upon

observation. These circumstances, by virtue of express statu-

tory provision, go to weight rather than to admissibility. (28

USCA. Sec. 1732 in part: “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 circumstances shall not affect its admis-

sibility.”)) Moreover, this Court has several times held that

hospital records are admissible under the statute, and certainly

medical diagnoels is 00 less a maties of opinicu based upos

observation and perhaps hearsay than this report of the

Bureau's investigation.’

“We agree with this interpretation of the Federal busi-

ness entries act by Judge rich, see V Wigmore on Evi-

dence (3rd ed.) Sec. 1530a. Nor would the decision of the

New York Court of Appeals in Johnson v. Lutz, 253 N.Y.

124, 170 N.E., 517, if we were to adopt its reasoning here,

as we perhaps did in United States v. Grayson, 2 Cir., 166 F.

2d 863, 869, call for a different result. In the case at bar

most, if not all, of the sources of information were from

persons who were under a duty to report to these boards as

part of their employment; we include among such persons

not only the employees of TWA, but also the employees of

the airport and of the Irish Government. If there were any

=

other sources of information, we do not think it would make

any difference where expert boards, which appear to have

been disinterested, were set up as a matter of business routine

to Mi. information from all sources and to draw infer-

ences rom.”

In support of the admissibility of said records, see also the

case of Moran v. Pittsburgh-Des Moines Steel Co., (3 CCA 1950)

183 F. 2d 467, Missouri-K.T. R. Co. of Tex. v. Ridgway, (8 CCA

1951) 191 F. 2d 363, and Googe v. U. S. (N.Y. 1951) 101 F.

Supp. 830. In the last case, a sailor jumped out of a U. S. Hos-

pital and the court held that the record of investigation which the

clinical director was required to make following the casualty was

admissible in evidence.

A copy of the consultation reports of Dr. Jones and Dr.

Beckstrand are not available to Respondent at this time to attach

to this answering brief. It should be made clear, however, that

the report is very factual, stating in the handwriting of both doc-

tors their personal examination of Erickson, their findings from

their personal observations, their personal examination of other

hospital records, including x-rays, and the medical and nurses’

charts and their diagnosis. The evidence clearly established that

the San Pedro General Hospital was a member of the American

Hospital Association, and that members of the American Hospital

Association have a standard form of procedure for the keeping

of hospital records; that consultation reports are a part of the

regular hospital records; that the hospital record is not complete

until a consultation report has been made out and filed; that the

hospital records of a patient are not filed by the Record’s Room

until the consultation reports have been prepared; that the con-

sultation reports are made at or about the time of the examination,

—y

and that if for any reason they are not filed within a short time

after the examination, the consulting doctor is contacted and in-

structed to immediately file a consultation report. (See Tr. pp.

188, 189, 190 and 191.)

It is submitted that the District Court properly admitted the

consultation reports of Dr. Jones and Dr. Beckstrand as a part of

the hospital records kept in the regular course of business pursuant

to the Federal Business Records Act, supra.

ll

THE COURT OF APPEALS CORRECTLY HELD

THAT THE SHIPPING ARTICLES WERE AMBIGU-

OUS AND THAT EXTRINSIC EVIDENCE WAS

ADMISSIBLE TO SHOW THE INTENT OF THE

PARTIES TO SERVE ABOARD THE VESSEL FOR

ONE TRIP OR VOYAGE RATHER THAN FOR A

PERIOD OF TWELVE MONTHS.

Petitioner's Question number III, IV and V presented for

review, and Petitioner's Points number III and IV of his argument

in support of the reasons relied upon for allowance of the writ

of certiorari in this case will be considered together.

Petitioner assumes that the shipping articles were coastwise

articles. This was not a coastwise voyage but rather a fishing

voyage. In a coastwise voyage ships touch the various coastwise

ports, each of which might constitute a trip or voyage except for

the custom and practice in coastwise voyages to serve for a stated

period of time. The evidence in this case shows a different custom

—19—

Of practice with respect to the tuna industry operating out of San

Diego Bay. The testimony of W. Wade Ambrose, supra, with

respect to the custom and practice in the Port of San Diego to

serve for one trip or voyage was not contradicted.

In 46 US.C.A. Section 541, et seq. there is found the pro-

visions of law with respect to shipping commissioners and ship-

ping articles and the type of shipping wherein shipping articles

are required. Section 566 thereof provides as follows:

“Sec. 566. Exception as to shipping articles. Section

564 of this title shall not apply to masters of vessels where

the seamen are by custom or agreement entitled to participate

in the profits or result of a cruise or voyage, nor to masters

of coastwide nor to masters of lake-going vessels that touch

at foreign ports; but seamen may, aap Pomerat serve on

board such vessels a definite time, or, on the return of any

vessel to a port in the United States, may reship and sail in

the same vessel on another voyage. R.S. Sec. 4513; Feb. 27,

1877, c. G9, sec. 1, 19 Stat. 252.”

There is no requirement of law that fishing vessels engaged

in the fishing trade on shares execute shipping articles, but they

are free to do so. Shipping articles were executed between Re-

spondent Medina and the members of the crew of said vessel,

including Erickson, on April 12, 1948. Said shipping articles were

not executed before a Shipping Commissioner. (Exhibit £).

In the case of The Quogue, 261 Fed. Rep. 414, affirmed in

266 Fed. Rep. 696, the shipping articles provided in part as

follows:

“From the port of Baltimore, Md., to such ports and

places in any part of the world, via an American port, as the

master may direct and back to a final port of discharge in the

—

United States, for a term of time not to exceed six calendar

The court in commenting on the shipping articles, at page

415 said:

“The Court's conclusion is that the shipping articles in

question are too indefinite and uncertain as to the voyage

and services contracted for to bind seamen thereby, they fail

to give the nature of the voyage undertaken, or so to describe

the same, either by general terms or positive specification, as

that those acting thereunder, or affected thereby, can know

or be advised of their contractural rights thereunder with any

reasonable degree of certainty. They are, therefore, under

Sec. 4523 of the Revised Statutes (7 U.S. Comp Stat. 1916,

p- 8801), void. The libelants are not bound thereunder, and

should be discharged, and paid the wages due them up to

the date of their refusal to continue the voyage.”

In the case of The Thomas Tracy, 24 Fed. Rep. 2d. 372, the

shipping articles provided as follows:

“We, the undersigned, crew of the steamship THOMAS

TRACY, whereof W. E. Bagley is the present master (or

whosoever shall go as master), now bound from the port of

coastwise to voyages, and back to a final port of discharge

north of Cape Hatteras, and if so desired by the master, one

or more other voyages to Mexico, West Indies, or ports in the

United States on the Gulf or Atlantic Coasts, with the right

to tow or to assist any vessel in distress, with liberty to call

at intermediate ports, not to exceed in all six calendar months,

do agree that, in consideration of the monthly wages against

the names of each member of the crew, hereunder set, they

severally shall and will perform the above mentioned voyage

of voyages. * * *”

The Court in commenting on the shipping articles quoted

at Page 374 as follows:

Sie ioeiat

=

“Reading the phrase and considering the mandatory

provision of the statute, requiring written articles for the

voyage as to the term of time for which the seaman is shi

ping, there is indefiniteness. They attempt to describe

voyage, and not the term of time. The time is referred to

as ‘not to exceed in all six months.’ They probably intended

to put a limitation upon the possible duration of the voyage,

and there is doubt as to whether or not it was intended to

employ for six months. In that construction, the voyage was

completed when the ship was discharged. U. S. vs. West-

wood (C.C.A.) 266 F. 696; The Catalonia (D.C.) 236 F.

554; The City of Montgomery (D.C.) 210 F. 673; The Falls

of Keltie (D.C.) 114 F, 357.”

In the case of Luksich vs. Mitisch, 140 Fed. Rep. 2d 812,

the Circuit Court of Appeals for the Ninth Circuit was presented

with the question of executing shipping articles wherein the con-

templated voyage was described as one from Los Angeles, Cali-

fornia, to Mexican Waters, Mexico, for one or more trips-and

return, and such other ports and places in any part of the world

as the master may direct and back to a final port of discharge in

the United States for a term of time not exceeding six calendar

months. The Court at page 815 said:

“The shipping articles do not embody all the basic pro-

visions of the employment (duration of contract and com-

pletion) and consequently must be supplemented by addi-

tional terms to constitute a complete agreement.”

The shipping articles in the case of Luksich vs. Mitisch,

supra, are almost identical with those in the instant case and re-

quire the Court to determine from other evidence the intention

of the parties with respect to the duration of the contract and its

completion.

_

In the case of Farrell vs. United States, 336 U.S. Reports,

511, 93 Law. Ed. 850, 69 Supreme Court Reports, 707, the ship-

ping articles there set out at page 856, 93 Law. Ed. read as

follows:

“From the port of Philadelphia to a point in the Atlantic

Ocean to the eastward to Philadelphia and thence to such

ports and places in any part of the world as the master may

direct or as may be ordered or directed by the U. S. Govern-

ment, or any department, commission or agency thereof * * *

and back to a final port of discharge in the United States for

a term of time not exceeding twelve calendar months.”

The Court said at page 857, 93 Law. Ed.:

“The twelve months period appears as a limitation u

the duration of the voyage and not as a stated period of

employment.”

The Court further said at page 856, 93 Law. Ed.:

“It is not questioned that the general custom in ships,

other thar. the coastwise trade, is to sign on for a voyage

rather than for a fixed period.”

This court's attention has already been called to the agree-

ment between the owners of the F/V ALPHECCA and the Can-

nery Workers and Fisherman's Union and the Machinists Union,

(Exhibit E). Article 5, Section 2 (a) provides in part that any

crew member who became ill or injured and returned home with

the captain’s approval should receive a fuil share for that particu-

lar trip only. Mr. Ambrose testified that the custom and practice

—23—

in the Port of San Diego had been embodied and carried into the

agreement (Exhibit E). Mr. Erickson had been an engineer on

fishing boats for a long time and had served on fishing boats oper-

ating out of the San Diego area. There is a strong inference from

these facts of his knowledge of the custom in effect in the Port

of San Diego. In addition, there appears to be actual knowledge

on his part of the custom and practice in the Port of San Diego

as evidenced by his execution of shipping articles on each of three

successive voyages and trips, to wit: October 17, 1947 (Exhibit F),

December 29, 1947 (Exhibit G) and April 12, 1948 (Exhibit 4).

It is submitted that in view of the ambiguity and uncertainty

of the shipping articles that the District Court improperly ruled

that the contract of employment was for a period of twelve months

and that there was no evidence in the record to support such a

finding. It is submitted that the Circuit Court of Appeals correctly

held that the shipping articles were ambiguous and the resort must

be had to other evidence to determine the duration of employment.

Ill

PETITIONER CITES NO AUTHORITY IN SUPPORT

OF POINT III OF ARGUMENT.

Under Point III of his argument on page 40 of Petitioner's

Brief, Petitioner has cited eleven cases, none of which cases have

anything to do with Point III of Petitioner's brief. All of the cases

cited refer to admissibility of evidence under the Federal Business

Records Act, supra.

a

IV

THE DISTRICT COURT FOUND AND THE REC-

ORD OVERWHELMINGLY SUPPORTED THE FIND-

ING THAT RESPONDENT MEDINA WAS NOT

NEGLIGENT; THAT THE PAIN AND SUFFERING,

IF ANY, OF ERICKSON AND HIS RESULTANT

DEATH WAS CAUSED BY CANCER.

The testimony of Dr. Petrich, the attending physician, was

read into the record by deposition. Dr. Petrich had been Erickson’s

attending physician for more than two years. He took x-rays and

personally examined and treated Erickson for the last four months

prior to his death. He stated in his opinion that Erickson died

from a bronchiogenic carcinoma which he had for more than one

year prior to his death with metastasis to the liver of over three

months. In the death certificate he certified death to be from the

same cause. A radiologist, Dr. Maurice M. Haskell, who testified

by deposition and who had taken x-rays of Erickson at San Pedro

General Hospital, concluded that the x-ray plates showed a prob-

able malignant neoplasm bronchiogenic carcinoma and a lympho-

blastoma. Dr. John Eneboe, a radiologist, testified from the x-ray

pictures taken at McCornack General Hospital, pictures taken at

Dr. Petrich’s office, and pictures taken at San Pedro General Hos-

pital, and came to the conclusion that Erickson was suffering from

a bronchiogenic carcinoma with metastasis to the liver. Dr. Joseph

J. O'Hara testified that he had been familiar with the case since

1950. He had studied the records of the McCornack General

Hospital, all of the x-ray reports, Public Health Service records,

and all of the records of the San Pedro General Hospital and

es

=,

that in his opinion Erickson, at the time of his death, was suffering

from a bronchiogenic carcinoma with liver involvement that was

in existence at the time he signed aboard the F/V ALPHECCA

on April 12, 1948. (Tr. p. 180-181).

In the face of all of this evidence, the evidence of Dr. Jones

and Dr. Beckstrand, even if inadmissible, which is not conceded,

would be merely cumulative and corroborative evidence. This case

was tried by a court sitting without a jury and there is no indica-

tion that the Judge was unduly swayed by the testimony of the

cumulative witness reflected in the consulting reports, where he

had the direct testimony of four witnesses who testified, either

on the witness stand or by deposition, and reached the same con-

clusion that Erickson died from cancer with liver involvement.

Vv

CONCLUSION

WHEREFORE, Respondents respectfully pray that the Peti-

tion for Writ of Certiorari be denied, and that the decision of

the Circuit Court of Appeals be affirmed in all respects.

Dated: February 6, 1956.

Respectfully submitted,

DERBY, COOK, QUINBY & TWEEDT

HIGGS, FLETCHER & MACK

FERDINAND T. FLETCHER

By FERDINAND T. FLETCHER

Proctors for Manuel Machado Medina,

Respondent