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YATES v. BAIR TRANSP.

December 2, 1965

Andrew YATES, Plaintiff,
v.
BAIR TRANSPORT, INC., Knickerbocker Despatch, Inc. and Samuel Benrubi, individually and d/b/a Jay Bee Co., Defendants


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

The respective parties herein request of the Court a ruling prior to trial on the admissibility of two proffered items of evidence: firstly, a police blotter report concerning the instant accident, and, secondly, medical reports of various doctors who examined plaintiff in connection with a prior Workmen's Compensation claim arising out of the accident.

 The parties have stipulated that if the reporting officer were called he would testify that the police blotter was prepared by him in the regular course of his duties and filed with the Police Department in accordance with his and their regular practice and procedure. If the officer were called, it is further agreed that he would also testify that the photostatic copy was authentic. Plaintiff accordingly argues that a sufficient foundation has been laid for the admissibility of the report without the necessity of calling the police officer.

 The Federal Business Records Act, 28 U.S.C. § 1732 (Supp.1964), provides:

 
"§ 1732. Record made in regular course of business: photographic copies.
 
(a) In any court of the United States and in any court established by Act of Congress, 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 as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it 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."

 It further provides that "[all] other circumstances of the making of such writing or record [i.e., a record kept in the ordinary course of business] including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility." An identical provision with respect to the contents of the record and the personal knowledge of the maker or entrant is contained in Section 4518 of the New York Civil Practice Law & Rules.

 A copy of the police blotter report has been supplied to the Court. Therein the ownership of the vehicle in question is set forth. In addition, the details of the accident are enumerated. The officer, as stated in the report, was not an eyewitness to the accident; in addition, under the heading of names and addresses of witnesses there appears the entry "none". Accordingly, it may be assumed that the information set forth in the report was supplied either by the driver of the truck, a helper, or the plaintiff; however, this is an assumption not based on any affirmative proof.

 In spite of the apparent clarity of the language in both statutes to the effect that the fact the entry is based on lack of personal knowledge of the entrant goes to weight rather than admissibility of a record kept in the ordinary course of business, the Courts and commentators have seemingly taken a different view of the metes of this exception to the hear-say rule.

 Professor McCormick has summed up the state of the law as follows: "Thus the statements of by-standers recorded in a policeman's report of accident * * * would be denied admission as business records to show the facts reported * * *." McCormick, Evidence § 286 at 602-03 (1954). See 5 Bender's New York Evidence - CPLR § 375 (1965).

 As will appear hereinafter, the Courts have also taken similar views.

 It is clear that Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930) would preclude the admissibility of statements by bystanders given to a police officer at the scene of the accident.

 "Where, however, the informant to the entrant of the record is under no duty to anyone to make a truthful account of the facts thus recorded, the record will not be admissible as proof of such facts. Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (Ct.App.1930) (report of policeman as to accident based on information from bystander witness; decided under Model Act; *fn1" leading case). Aside from Wigmore [5 Wigmore, Evidence § 1530a (3d ed. 1940)], no competent authority in the field and few courts have dissented from this qualification obviously basic to the rationale of the business entry exception [citing cases and Law Review articles]." Fagan v. City of Newark, 78 N.J.Super. 294, 188 A.2d 427, 440 (App.Div.1963).1a

 A case seemingly in point and holding such a report with statements of bystanders admissible is McKee v. Jamestown Bakery Co., 198 F.2d 551, 556 (3d Cir. 1952): "The [police] report consists of a summary of statements made by witnesses to the accident and some photographs taken immediately after the accident. The refusal to admit the statements was error on the part of the court below. The report was made by Chief of Police Goetz in his official capacity and was therefore made in the 'regular course' of his business." Contra, Gencarella v. Fyfe, 171 F.2d 419 (1st Cir. 1948). However, a later Third Circuit case, Gordon v. Robinson, 210 F.2d 192 (3d Cir. 1954), limited McKee to its precise facts (i.e., a situation where "all the pertinent [matters] appearing in the report * * * [are] testified to competently") (id. at 197 n. 9), and in fact reversed the district court which, based on McKee, had held a police report admissible. Gordon v. Robinson, 109 F. Supp. 106, 108 (W.D.Pa.1952).

 
"The majority of courts * * * have followed the rule of Johnson v. Lutz in excluding records, even though the entrant was acting pursuant to business duty, where the informants were not. This limitation has elicited sever criticism from Professor Wigmore and other commentators. They have argued that since the statute expressly rejects the necessity for personal knowledge on the part of the entrant, the only requirements for admissibility are that the entrant be acting in the regular course of his business and that the record be made at or near the time of the event. Some courts have seemingly adopted this view, admitting records regularly made although the information contained was derived ultimately from volunteers.
 
Despite criticism of the Johnson case, the limitation it imposes seems sound and in accord with the basic philosophy of the business entry statutes. These acts were intended to make admissible records which, because made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recordation of third party statements is routine, taken apart from the source of the information recorded, imports no guaranty of the truth of the statements themselves. There is no reason for supposing an intention to make admissible hearsay of this sort. So to construe these statutes would make of them almost limitless dragnets for the introduction of random, irresponsible testimony beyond the reach of the usual tests for accuracy. Johnson v. Lutz did not ignore the statutory language making personal knowledge unnecessary, but merely emphasized that the presumption of reliability attaches only to statements made entirely in the course of business.
 
A record which contains the hearsay statements of volunteers [be they bystanders or participants under no duty to impart the information] then, does not by operation of the business record statutes become admissible to prove the truth of those statements." Note, Revised Business Entry Statutes: Theory & Practice, 48 Columb.L.Rev. 920, 926-27 (1948).

 The following reconciliation between the statutory language and the clear weight of authority appears correct:

 "This [the statutory language stating that lack of personal knowledge of the maker or entrant goes to weight rather than admissibility] could be interpreted as abolishing the requirement of first-hand knowledge by one whose job is to know the facts. The more reasonable interpretation, however, is to read 'entrant or maker' as meaning the recorder only and thus merely making clear that one who makes the record on reports of others need not know the facts without broadening (beyond the probable intent of the drafters) the content of this hearsay exception to embrace records founded on reports by one who has no business duty to know the facts." McCormick, supra, § 286 at 602.

 Or, as stated in Standard Oil Co. of Calif. v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S. Ct. 1139, 2 L. Ed. 2d 1148 (1958): "But where the entrant or maker records information supplied by others, it must appear that 'it was part of their regular course of business to report to him what the declarants themselves knew, as it was part of his business to record what they said.' United States v. Grayson, 2 Cir., 166 F.2d 863, 869. Where the information comes to the entrant or maker from unauthorized persons, the memorandum or record is therefore inadmissible, not because it contains hearsay, but because it was not made in the regular course of business."

 Moreover, if the policeman testified in court, his testimony that a bystander told him that the accident occurred thusly would be hearsay and if not within one of the exceptions, inadmissible. Why a different result should be reached where the policeman writes what the bystander said instead of testifying to it, is not readily apparent.

 Nor are any of the cases cited by plaintiff to the contrary.

 In analyzing these cases, however, it must be borne in mind that there are numerous exceptions to the hearsay rule and that an utterance, while not properly admitted under one exception, may very well be admitted under another.

 "It should be recognized, of course, that apart from the business entry statutes there are numerous exceptions to the hearsay rule - e.g., those covering statements regarding present mental or physical conditions, admission, declarations against interest, spontaneous declarations, statements or dying declarations. A record of volunteer hearsay may be admissible as proof of the facts stated where such an exception exists. Many cases which have loosely applied the business entry statutes to admit records to prove the truth of volunteer statements may well have reached a correct result on this ground. They have failed, however, to recognize explicitly that the statutes are applicable only in admitting the first step of hearsay, while the second step is admitted because a further ...


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