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Herzig v. Swift & Co.

CIRCUIT COURT OF APPEALS, SECOND CIRCUIT


January 4, 1945

HERZIG
v.
SWIFT & CO.

Author: Frank

Before CHASE, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. Perhaps the most to be said for the "best evidence rule" is that it may serve on occasion as a good mnemonic device. It did not so serve the trial judge here, for it awoke in him an incorrect recollection when, in rejecting the oral testimony as to partnership earnings and in refusing to allow the plaintiff's counsel to argue for its admissibility, he said, "I am not going to hear an elementary argument on law school evidence."

"In its modern application, the best evidence rule amounts to little more than the requirement that the contents of a writing must be proved by the introduction of the writing itself, unless its absence can be satisfactorily accounted for."*fn1 Here there was no attempt to prove the contents of a writing; the issue was the earnings of the partnership, which for convenience were recorded in books of account after the relevant facts occurred. Generally, this differentitation has been adopted by the courts.*fn2 On the precise question of admitting oral testimony to prove matters that are contained in books of account, the courts have divided, some holding the oral testimony admissible, others excluding it.*fn3 The federal courts have generally adopted the rationale limiting the "best evidence rule" to cases where the contents of the writing are to be proved.*fn4 We hold, therefore, that the district judge erred in excluding the oral testimony as to the earnings of the partnership. A closer question arises as to whether proof of the decedent's share in the partnership must be proved by the partnership agreement; but we are not called upon to decide this question since the trial never reached the point where this question would be raised.

2. But even aside from that error, we think that the court below erred in not permitting the case to go to the jury. The Florida cases have not laid down any strict group of criteria against which to measure the damages to the estate.*fn5 The statute has been interpreted to permit recovery equal to he difference between the estate as it existed at the time of the decedent's death and what the estate would have consisted of had the decedent not been killed at that time.*fn6 Proof of earnings is a factor to be taken into consideration in a determination of the value of the estate the decedent would have accumulated. But it is not an indispensable factor.*fn7 The evidence as to the health, habits, and industry of the decedent was sufficient to permit the jury to make a determination. It was error to dismiss the complaint.

Reversed and remanded.


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