Appendix — Eastern Air Lines, Inc. v. St. Clair (No. 374)

TES y

’ Motion to Set Aside Verdict and for New Trial

and Oral Opinion

‘ New Vork. [ Derereen gst vee tt” TH, Thos

5 Lint a elowk pr.tni.

Mr. Tiektin: At the outset. may it please the Court,

tay Lask fer waiver ef written: netice of metien ated

eft services thereof, peturstuaenst te Rule Sof the Rules of

Civil Procedure ?

Mr. Reilly: We <o concede or stipulate. °

The Conrt: AU right. let us get on.

Mr. Tiektin: This is a metion, tray it polecise the

Court, pursnant te Rule 5 ef the Rules of Civil (aug)

Perceeebtrre: Per a new trical repens the greeenned that the

vereadiet ts eortirars: ioe Thee tae, eertiabs for the svi-

eye Peeve, ILE titan! ter the weak! eof Three ewtedertuee’, tied eth

all the exeeptions taker eeiring the course of the trial.

ateloon the failure of the Court te eharge the jury a

recrtpestest by the plaintiff, :

The trrertieedt Is likewise Phhsteier, reece i? peleccise thw

@corert, ter set aside The Verelie? atud ter a few trial en -

tive weresnapiel that the veprelte? ts tradectiuate 1 take it

veorr Phere r krews as well as Po that the Court hices the-

penn Tee gtreeret <trehe ge Mevet bent,

The Cenrt: Ves.

Mr. Tiektin: The baeis fer the motion ter set cide

Th vembiet ps on the wetted thay i is gressly tinede-

roccrater, PPeet freeree thee srrell gereermnt veneered! tr beheall

et the wiebew grel the dufant——partrenlarly the wredbew,

Whiele was tn the amen? ef STO the purer. rats

iste atenip tert ter aepiferreres settee pererertive: Theessi= Tie’

© Motion to Set Aside Verdict aud for New Trial

aud ral Ojlnion

against the deceased, against his surviving widow.

ix ineredible that such a low verdict ia death aetion

of a man of the age of 46 contd have been rendered

were it net for some intlienee or reaction that) is net

apparent tome, Tt is wholly ineredible that the jurors

could bring in such a verdict without disregarding thie

(SLO) facet that we are dealing with the death of a

human being whe had avconsiderable potential, and

particnlarly based on the unequivocal statement gf tis

wide, the plaintiff, that he had ceased drinking,

whieh in fact was contirmed by the record of the

Towns Hospital, which of course Thad never see

prier to a few minutes before its introduction dite

\

evidence, \

Of course Thad never seen it prior to its iutiquliie-

tion exeept for a few minutes, PT venture the suites

tion, mv it please the Court, that the verdivt mpust

have necessarily shocked the conscience of ‘he Cant

hy virtue of its minuteness, its inadequacsy 7”

We contend that this is a case of gross miscarriage

of justices, and that under suet eireunistances the only

alternative of the Court is.te grant a ew triaf in

order te avoid an injustice, Certainly as we view tf. .

based on the lowest figure of life expectaney? wile!

vour Toner charged the ji. whieh LT believe wes @

about 22 vears, the net verdict, exeluding the funeral

expense element, based on the fomr percent UEDNGIEN

payable, would produce for the widow approximate!

S00 a year That ts my camerotitation——Pomigy bee

error whont it. 3 t

L eall vorr Toner’s attention to this sadtent (OTT)

fant, Tr that the 15.000 ver het which dmmred te ths

Apps

Votion to Sit Aside Verdict aud for New Trial

aud Oral Opinion

widow ineluded some 81750 or S$1775--T have the exact

dion

The Court: Well, it is, seventeen hundred-oded.

Mr. Tieltin: Yes, funeral expenses. So the verdict,

really, the compeénsatory verdict to her was about

\ #105.200,

~ Teall vonr Tloner’s attention ‘to the fact alse that

veur Honor charged jiu connection with the testi-

mony of Stoller, wherein he was asked certain «jues-

tions concerning some prior contradictory statements

alleged to be made to Brady. an agent of the Federal

Bureau of Dnvestigation, and the answer Wis con-

sistently mo. vour Tlonor will recall—

The Court: Oh. Dtreeall it vividly. Go ahead.

Mr. Tiektin: And vour Honor charged the jury in

that conneetion that--and Jo think your Honor did

sive the jury the impression that it was reasonable to

assume that if Brady were net produced here, the

statements were not made, .

I am attempting te paraphrase, veour THonor's

charge in that conneetion—but then your Toner preo-

ceoded further and stated that it was fer the jury,

netwithstanding, to determine the truth or the ae-

enraer of that (512) faet. Dathink in that tustanee,

vour Honor that vou fell inte error, if -omay re-

speetfully suggest tt. and DP refer yeu Honer te the

ease of Rogge ve. Valentine, 280 NY 2os, at page 276."

Where the Court of Appeals of New York stated and

may T quote, veur Honor: Phe rule has long been

established that ai prior contradictory statement,

Whether made dn court under oath or outside of cour

omuly or ia writing, may in proper case be intredineeed

aa

| TRADE MARK R)

2 2%

© m

A

z

aa

App. 4

Motion lo Nal Aside rdiet ane for Ng it’ Trial

end Oral Opinion

to impeach the credibility af the witness, but do net

constitute affirmative evidence or tevidence in chiet”

of the facts stated**—citing MeCabe.v. Bretton. os,

NY 196 and Gratton vo Metropolitan Life Tnsuranee

Co. OB NY 274: Tt is universally, maintained bv

the courts that prior self-coutradictions are not to be

treated as having any substantive or independént testi-

monial value’? (2 Wigmore on Evidence, 2nd ed. 1Q1s)

“No sufficient reason appears why the Court should

reconsider now the rule of evidence formally | estas

lished hy the courts.”

[ contend, your Henor, that even if Mr. rady bral

been produced and had testified to prior contradietors

statements made by the witness Stoller, would: stl!

he ne ques. ion for the jury to determine (013) beeanse

that would wot have presented any ee aftfirmia-

tive evidence of the question,

I have these few items to diseuss with vour Toner,

and Towill be throtn@h inoa moment.

Your Honor, failed ¢e advise the jury that the dam-

age shonld have been computed as of VAG D think

vour Honor intended to do that during the course of

one of our off-the-veeord diseussions, To think vent:

Honer did so indicate but apparently venr Honer

forget so te do, TP othink the gery should have been

apprised of that. The jurveo may very well have as

sumed that sinee almost ten vears have elapsed) fron

the thine ef the accident that they eould very we

deduet that clapsed period frome them consideratio:

from the 22 vears of probabfe life expectaney, whieh

the lowest tigure that vour Honor charged,

Nya

Motion lo Ny H Aside i rdict “ue for ye it‘ Trral

and Oral pinion

Pathe duterests of justices Twill withdraw that last

statement. Your Plener very well knews what) ver-

diets Juries have rendered th ordinary siniple aecident

eases, and in death cases, and TP think this figure of

s15,000, vour Tlonor, sets an entirely: new--and |

anew low on verdicts in death actions.

The Court: Is that the end of vot motion?

Mr. Tiektin: Tn the interests of justices, (514) yon

Honor, the motion to set aside the verdict, partic-

des on the ground of inadequacy, the motion fora

ew trial.on the grovnd of an evident miscarriage of

its sthee, should be granted, .

The Courts Mr: Tiektini, while TI might personally

disagree with the quantum of the damages had. DT been

trying the cases Pomust say that mi view of the faet

of the man’s condition of health, which was brought

out te the jury. and his meagre earnings, | oeainet sav.

Hiat’ the verdiet was so grossly inadequate that it

shoeks my conseience, and your motion to set aside

the verdiet on the ground that’ it is inadequate is

denied. and the other errors that ven press do hot im-

press me, ahd veur other motions are alse denied,

With exceptions on beth scores,

7 a *

App. (;

Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

No, 293 October Term, 195%.

)

(Argued April 5, 1960 Decided June 2, 1960.)

Docket No, 25565

&

JOSEPHINE wA. St. CLAtR, as seinen te of the

Estate of Harold Ws St. Clair. deceased,

Plointif Appellant,

—vV—

<3 ASTERN s-Am LixEs: Os:

Iifeadant-Ap hee.

Before: Luapanp, Chicf Jidge,

Hines and FPrienpiy. Cire? Jidges.

Plaintiff appe oaks from a judgment iti her faver ie

294.000 entered by the: United States Distriet © On

fisy the Southern Distriet of New York, Themas 9

Murphy, J. upon a jury verdiet in an action for

wrongful death. Plaintiff claimed that) the verdint

was wrossiv Inadequate and that wimmerots errors we!

> comititted in the admissien of evidenee and in

charge of the court.

Reversed anel remanded,

App. 7

Opinion of thie Court of Appeals

(oa )

Davin A. Ticktin, New York, N.Y. (Powers,

Kaplan & Berger, New York, N.Y. on the

brief), for plarutiff-appe Thant.

JOHN G. Reatnyt New York, N.Y. (Robert ‘FP.

Ewald and Bigham, Englar, Jones & Hons-

‘slip uf? ‘ton, New York, mc , on the ‘brief ), for

di fe ndant-apipe hee,

LtuMBarp, Chie f Judye:

Josephine St. Clair, widow of Harold St. Clair and

exeentrix of his estate, appealsigrom a jury verdict in

her favor in an action for damages for the wrongful

death of Mr. St. Clair, allegedly caused by the negli-

genewe Of Eastern Air Lines. The plaintiff's deeedent

was killed on November 1, 1949, when an Eastern Air

1 iRes D'-4 in which he was a passenger collided 1"

m@-air with a Bolivian plane as the DC-4 approached

liability under the law of the District.of Columbia for

the decedent's death was established in a suit brenght

by the estate of another passenger Killed in the same

aeetdent, by whith determination the parties agreed to

he houmd.! The sole matter at issue in this litigation

was therefore the amount of tke\ damages to be

awarded the Rypellant under the Distrieteof Columbia

Wrongefil Death Aet. DL ©. Code S16-1201, whieh per-

\

e Frnt ) Puited States. DIB E Supp. st Py ee €.

YS. neaditied, 22b RF 2a DOC. Cir. defemdant’s appeal at

ts of

Let OS OT plaimtaths” appeal eert. deat, ob te

wD ‘ Burstern er Lemes. Ine. vil NM HOPP Trust ¢' “)-)] Kk at | ti

De ip o. peversed. ROT S S07 019550. modified and remitted

ring, (1) POS. 862 0on remand, 230. F. 2 to OD. Cir

Washington National Airport for a landing. Bastern’s ”

r fe Apps

Opinion of fhe Court of Appeals

mits recovery only for) funeral expenses and the

pecuniary loss suffered by the spouse and next of kin

The plaintitt sought (3070) damages of 350,000) cre

‘the jury returned a verdict) for > 24,000, of whieh

*15,000 Was allocated to the plaintiff and. the balatee

to decedent's minor child by an earlier marriage.

* Plaintiff assigns numerous errors in the admission

of evidence and in the trial court's charge to the jurs

‘and.asserts also that the ‘verdict should be set aside

as grossly inadequate, Beeause we conclude that the

trial court was in errer in admitting considerable

testimony irrelevant to the decedent's prospective

earning ability, and the plaintiff's consequent pe-

enniary loss, and that this evidence may well have

inflmenced the jury's verdict, we reverse the judgment

and remand the case for anew trial.

At the trial defense counsel cross-examined the

plaintiff at length concerning the circumstances of the

init i acquaintaneeship between the plamtiff and her

deceased husband, plaintiff's PES AT at the time

she began seeing him that he was then married te

another woman, her familiarity with the progress of

the divorce suit brought by his prior wife, and whether

the decedent had been living at the plaintiff's apart-.

ment prior to their marriage, This testimony was,

admitted by the trial -court, over the objections of

plaintiff's counsel, ou the theory that it was evidence

of decedeut’s character and that his personal qualities

and habits’ were’ proper considerations in determining

his business capacity, the amount of suppert that Ihe

would contribute to his family, and the likelihood of,

his tingueial advancement. We th uk that the test!

mony was irrelevant to the question of the peenniary

App! °

Opiuton of tha Court of Appeals

loss suffered lay the polainitift cnie hy the theemdeut’s |

ebild and should not have been admitted,

Undoubtedly personal habits and quatities, are te

some degree reievant considerations in determining

an individual's earning ability’: and the support. that

his family would (338) have received from hime bit

for his death. Thus, courts have held in weowgful

death actions under statutes similar to that of the

District of Columbia that it was proper to show that

a decedent had been undergoing treatment for mental

illness immediately before his death, Eder vo Cashin,

281 App. Div. 456, 120 N.Y. S. 2d 165 (1953), or that

he engaged in greatly excessive drinking, Welliaine \.

Metropolitan Street RailwayCo. TA Ay. Div. 497, 77

N.Y. Supp. 426 (1902). Such evidenee is relevant

because the trier of fact Shay reasonably think that

these traits affeet the individual's ability te keep and

nudntain employment; it also bears on the theliheod

that his funds will be used for the benetit of his tamil

rather than be expended in other ways. For tHe same

reason, it would probably be appropriate. for example,

to receive evidence that a deceased toed a repute:

ton among his) business associates oor employer:

for dishonesty or irresponsibility. See “Annet. 163

A. 1 1. DAs. :

That some aspects of a decedent ’s character toety

properly be shown in deternvining the damages to he

awarded in oa wrongful death aetion does qot mean,

however, that all his habits and qualities are relevant,

See, ape 8 Lipeonh vs Floustow & pak Se R. rh, WO Tex,

210, 64.8. W928. 927 C1901). The defendant shold

Het be permitted to put i evidences auvtheug die mins,

unearth which retleets unfavorabls pon The decedent

Except as they may show a propensity of the decedens

App. 10

Opinion of the Court of Appeals

to spend his income in ways which do not inure to the

‘benetit of his family, the details of his personal lite

are not in issue and, in the present case, the history

of St. Clair’s relationship with the plaintiff bore no

relation to any matter which was.in issue. The

manner'in which men choose to conduct their persenal

lives very often has little bearing on the way that they

manage their business affairs. In the absence of some

preliminary shewing to the contrary, a court ought net

to (359a) suppose that evidence of the former is of

utility in determining the latter. Moreover, in the

case before us, any remote evidentiary value that the

details of the decedent's personal life may have had

was far outweighed by the certainty that prejudice to

the plaintiff’s case in the minds of the jurors would

result from the introduction. of evidenecé showing in

an itl light not only the decedent but. the plaintitf

aus well, oo

Plaintiff also urges that it was error for the trial

court to permit appellee's counsel to read to the jury

certain extracts from the deposition of one Stoller.

Stoller had been a business associate of the decedent,

In. his deposition on direet examination by the ap-

pelee he testitied repeatedly and tmequivocally that he

“hever had seen the decedent drinking onthe job or

indeed under the inthuenee of aleohol in 1949, Oy

-‘Qyess-examination by Mr. Clark. an assistant United

States Attorney, in behalf of the United States whicl

Was then a party te the action, Stoller admitted that

he reealled having been interviewed by one Brady «!

the Federal Bureau é6f Tnvestigation. But when om

peated!y asked if lie had uot tebd Brady that o

business oreasions he bad seem the defendant who

Hinabte te sign cheeks beeause of his aleoholie eon

App. dd

Opinion of the Cort of Appeals:

tion and that-the decedent had left his employment

because he may have heen an adeoholic. the witness

consistently demied having: made such statements to

Brady. Thus the deposition laid a preliminary founda-

tion for a contradiction of Stoller’s deposition testi-’

mony, if that should be offered at trial, by calling

brady at the trial to testify to, the ineonsistent out-

of-court statements which Stoller,on deposition had

heen confronted with and had denied.

At the trial the appellant read portions of Stotler's

examination on deposition by counsel then represent-

ing the defendant and by Clark. Appellee’s trial

counsel Was then allowed over objection to read inte

the record in the (340a) presence of the jury portions

of Stoller’s ‘deposition containing Clark's questions

purportedly reciting these ieonsistent statements

given to epi By this indirect technique, counsel

succeeded ino putting before the jury subject-matter

“of questions, prejudicial to the plaintiff’s case. the

only legitimate purpose of whieh was te lav. the

foundation for contradiction by Brady. Bat counsel

never called Brady nor was there put into the trial

record a shred of evidence to show ‘that the deponent

Stoller had ever made ouut-of- comet statements iran

- sistent with) his deposition testimeny,

Atos nnfortunate that thectrial judge. when supped:

lees counsel sought te read te the Jury Clark's qnes-

Tens. fatled te inquires as die doubtless wenld have

dane if requested hy appellant's counsel, Whether hie

Hppetiee’s eomnschs intended te prether Brady as an

iMipesehinge Wittess, Upon a megidive arswer te sieh

Phequiey, dt weoald hayes been elearly: errereons te

ermit tine reseltie oof GVark*s dheteositter: catestpeors.”

App. 12

Opinion of the ¢ ourt of A prpe als

People vo Stinders, 192 N. FE. 697, 702 (UL): Morton

Vv. Mozin, 92. N. BE. 691 (LIL). -Ct. Kesten ve Fortes,

273 App. Div. 646, 78 No YOS. 2d 769.0 Maller ve Men

derson, 124 A. 2d 23 (ON. J. Superior Court), is net te

the contrary. It was there held that on frial a party

Was entitled to cross-examine a witness as to an outs

of-court: statement notwithstamding ‘counsel's refusal

to represent that in the event the witness denied.mak-

ing the statement competent proof thereof would be

offered. The situation was such that counsel could

hope to develop answers. by the witness or demeanor

conduct likely to“have an impeaching effect. But in

this case that objective was served not at all by read-

ing from the deposition Clark*s questions and Stoller’s

answers: it was plain that the questions were harmful

in their content to the plaintiff's ease and that the

answers given, without) Brady's testimony in eon-

tradiction of the deponent, had not the slightest

tendency to impeach.

(S412)

It would, of course, have deen improper for appel-

lees counsel to have read the que stions for the purpose

of putting their prejudicial content before the jury

With nocintent to make use of-the foundation this

laid by calling Brady. 98 CLIO. 68597, 594. But on

this reeord sueh miseonduet may net be attributed to

counsel: for anght that appears, counsel at that stage

of the trialiay have intended te offer Brady. Never-

theless. it is plain that the content of the quest fats

Was prejudicial: Tt was errer te permit them: te |:

read without assurance that they were needed as neces

sary foundation for contradicting testimony bw Brass

iii

PAGE

Keston Vv. Forbes, 273 App. Div. 646; 78 N. Y.S.

2a 768 ..... eS Pe eer ES eae fie Ahaha os 44

Lipcomb v. Houston & T. C. RB. Co, 95 Tex. 5,

OE Oy, Wes We CHUN: oles cuceceaccbatruede ,

Lockwood v. New York, L. E: & W. R. (o., 9

Pe Ba EO eh ss essa ose kaa sa ee ea 32

Miller v. Henderson, 124 A. 2d 23 (N. J. Superior

GANS ah Fesin che Oech eeieec erent 44

Norfolk & Western Meitees Co., 235° U. S. 623

(1915) 2... ree oie fee es es 29

O'Connor v. U.S. 269 F, 2d 578 (2 Cir. 1959) ... 38

" People v. Ferraro, 293 N. ¥.51 (1944) . 20.0... 42

People vy. Sanders, 192 N. E. 696 (Minis) ..... 43

Philadelphia & R. R. Co. v. Baker, 155 Fed. 407

(3 Cir. 1907), affirming 149 Fed. 882 ....... 33

Philadelphia d& R. Ry. Co. v. Bartsch, 9 Fed. 2d

858 (3rd Cir.) ........ ee eh ee 43, 44

Railroad Company Vv. Barron, 72 U. S. 90 (1866) 30

Rankin v. Shayne, 234 F. 2d 35 gees D. C.1956) 32

St. Louis & S. F. RB. Co. vy. Duke, 192 Fed. 306 (8

Cir. 1911), affirming 172 Fed. Oe cco oes. 34

Southern Pac. Co. ¥. Lafferty, 57 Fed. 536 (9 Cir.

carte EEE EEE CE eee Of

Speich vo Cromley, $4 F.2d 543 (3 Cir. 19: 8), af-

firming 19 F. Supp..857 ...0...00..0...... 33

Stafford v. Roadway Transit Co.. 165 F. 2d 920

(3 Cir, 1948), affirming 73 F. Supp. 458 and

0 MO ON ae eee. Soe ert 33

Tate x. Nelson, 71 F. Supp. 465 (D: D.<. at)... 3

Thy Volund, 181 Fed. 643 (2 Cir. 1910) ... 3

PAs

Union Trust Co. ve U.S. 113 FL Supp. 80

(D. D.C. 1953), modified 221 F. 2d 62 (D.C.

Cir.) defendant's appeal affirmed, 350 U.S.

907, plaintiff's appeal cert. denied, 8350 U.S.

WON COED cova ckass Nes datacate Be WARD Gah 9 6,35

United States vy. Angelo, 153 Fed. 2d 247 (3rd Cir.

| Ae a arued te ict c cca aa tiv eaiote ae seatate hie oe kee 44

United States v. Brooks, 176 F. 2d 482 (4 Cir.

Rg eng us Re ew RR eRe oak a ees

United States Electric Lighting Co. v. Sullivan,

22 App. D. C. 115 (1903) ................30.31

STATUTES

District of- Columbia Code 16-1201 ............ 4.5

District of Columbia Code 16-1203 ............. i»)

I en ty ian ow whew ' 47

en er et ag Seva wg Gielen ewe a a

NMR Ses EE lg te hailed wk San ce edhe wa ee,

Nyy. I}

‘Opinion of the Court of Appeals

Philadelphia dad 2. Ry. Co, Ve Bartsch Cw oF. aa

Sos, SOL,

Nor was the resulting ham enred by the charge.

The judge not only refused to charge that a witness's

prior inconsistent statement was not to be considered

as substantial evidence of the:facts stated therein?

but he told the jury that whether or not Stoller -had

made an inconsistent statement to an F.B.L. agent ‘is

entirely up to you and within your sole and exclusive

province.” "Phis was erroneous. If, as indeed the

Judge told the jury, there was no evidence of an in-

consistent statement, surely it was not for the jury to

find that one had been made. And the error of such |

an iustruction was not cured by the judge's aecom-

panving observation that the failure to produce the

P.B.L. agent was important for its corroborating effect

‘in Jending eredibility to Stoller’s denial of an ineon-

sistent) statement. This, doubtless, was) somewhat

helpful to the plaintiff’s ease. But only an instruction

to take Stoller’s deposition testimony as wholly un-

contradicted would have sufficed. Ct. Behrman vy.

Sims, D.C. Cin, 1597 F.2d s6z,

(42a )

We conelude that the error in permitting the read-

Ing of Clark's questions, and in the related charge

and the refusal to charge, were in themselves sufti-

ciently prejudieial to require reversal. Because of

these errors and those discussed earlier, the case is

Reversed and remanded.

= Wirachester & Partridge. Mfg. Co. vo -Crearu, 16 UL S. 161:

National Labor Re lations Board . One steShan Mark Brassie re Co °

fre. 2 Cir. .185 F.2d 285; Peoplev. Ferraro, 293 N.Y. 51,55 N.E

“861; Roge v. Valentine 280 N.Y. 265, 20 N. E. 2d 751,

App. 14 :

(348a)

| ' Judgment of -Court of Appeals —

UNITED-STATES COURT OF APPEALS

For THE SECOND Circvit

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Courthouse in the City of New York,

on the second day of June, one thousand nine hundred

and sixty | ; |

Present: How. J. Epwarp Lumparp, Chief Judge,

| How. Carrott C. Hincks,

How. Henry J. Frienpry, Circuit Judges.

ss

’ a

JOSEPHINE A. St. CLarr as Exeeutrix of the

Estate of Harold W. St. Clair, deceased,

Plaintiff-Appellant

sf .

Eastern Am Lines, INc., ;

‘ Defendant-Appellye

Li.

—_

Appeal from the United States District Court. for

the Southern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by

‘counsel,

ON .CONSIDERATION WHEREOF, it is now hereby or- *

dered, adjudged, and decreed that the judgement of .

said Distriet Court be and it hereby is reversed and

the action be and it hereby is remanded in accordatve

with the opinion of this court, with -costs to the ap-

pellant.

A. DaNntieL Fusaro,

, Clerk

|

|

App. ds

Opinion of the Court of ah pope als

Philade lphia & Be. Ry. CoV. Bartsch. 3 Cir. 9 F. >|

Sos, S61,

Nor Was the resulting harm enred: by the charge,

‘The judge not only refused te « harge that a witness*s

pr lor inconsistent statement Was hot to be considered

as substantial evidence of the faets stated therein2

but he told the jury that whether or net Stoller prs

made an inconsistent statement to am FBI. agent *l

entirely up to vouand within your sole and Tees ie

province.” This was erroneous. If, as indeed the

Judge told the jury, there was ne evide ‘nee of an in-

colsistent statement. surely it was not for the jury to

find that oue had been made. And the error of ste hi

an iustruetion was not eured by the judge's accom-

panying observation that the failure .te produce the

PBA. agent was important for its corroborating effect

in lending credibility. tocSteller’s denial of an incon:

sistent) statement. This, doubtless, was somewhat

helpful to the plaintiff's ease. But only an instruction

to take Stoller’s deposition testimony as wholly u

contradieted would have sufficed. Ct: Behrman. \.

Stas, D.C. Cir, 157 FB. 2c 862.

(O42 )

We conehide-that the error in permitting the read-

ig of Clark's questions, and in the related charge

and the refusal te charge, were in themselves sufti-

deutly prejudicial to require reversal. Beéeause of

these errors and those disetussed earlier, the ease is

Reversed arid remanded,

Diese & Partridge Mfgt Ca. v Crearu, 116 U.S. 161.

Nati snal Labor, Re! (1D ONS Board Ss Chive st-Nion Vark Brassiere Ca a

Ine 2 Cir, 185 F. 2d 285: People. Ferrara, 203 N Yo51,55 NE

2b S61 : Peowe v. Vale line. Vs) NW. os, “EN EB. kl 55]

' App. 14

(343a ) :

Judgment of Court of Appeals

UNITED STATES COURT OF APPEALS

For THE Skeconp CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Courthouse in the City of New York,

on the seeond day of June, one thousand nine hundred

and sixty.

Present: How. J. Epwarp Lumsarp, Chief Judy,

Hon. Carroti C. Hixcks,

Hon. Henry J. Frienpiy, Circuit Judges.

i.

—

JOSEPHINE A. St. CLAIR as Executrix of the

Estate of Harold W. St. Clair, deceased, |

ae Plaintiff-Appellant

¥.

Eastern Atr Lines, INc.,

Defendant-A ppelles

>

—

Appeal from the United States District Court for

the Southern District of New York.

This cause came on to be heard ou the transcript of

record from the United States District Court for the

Southern Distriet of New York. and was argued by

counsel, : .

ON CONSIDERATION WHEREOF, it is now hereby or-.

dered, adjudged, and decreed that the judgement of

said District Court be and it hereby is: reversed and

the action be and it hereby is remanded in accordance

with the opinion of this court, with costs to the ap-

pellant.

| A, DaNIEL Fusaro, |

Clerk