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Lindheimer v. United Fruit Co.

decided: November 20, 1969.

WALTER LINDHEIMER, PLAINTIFF-APPELLANT.
v.
UNITED FRUIT COMPANY, DEFENDANT-APPELLEE



Lumbard, Chief Judge, and Smith and Feinberg, Circuit Judges. Lumbard, Chief Judge (concurring).

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

Plaintiff appeals from judgment on a jury verdict for the defendant before Judge MacMahon in the United States District Court for the Southern District of New York. The action was brought by the plaintiff, a seaman, to recover damages for personal injuries brought under the general maritime law, and the Jones Act, 46 U.S.C. ยง 688. We find no error and affirm the judgment.

The plaintiff was an engine utility on a ship owned and operated by the defendant and claimed he was injured on board the ship during a fire drill when a canvas fire hose burst causing a jet of water under high pressure to hit him. As a result he claimed he was forced by the water across the vessel's deck thereby twisting and injuring his back. The plaintiff further testified that he later reported the accident to the chief mate at a safety committee meeting held after the fire and boat drill and that at the end of the voyage he sought medical attention and eventually underwent surgery on his back. Defendant disputed the occurrence, denying that any fire hose broke or that the plaintiff reported any such accident. The chief mate's testimony in the form of a deposition read into the record was used for the defense; it was also used to introduce records into evidence.

It is those two records admitted into evidence that constitute the grounds for this appeal by plaintiff. The defendant asserts that the records were admissible and further contends that even if the records were erroneously allowed into evidence such admission was harmless error since the records were only part of cumulative evidence.

The two records allowed into the record were a report of the safety committee meeting which contained the statement "There were no accidents reported by Department Heads this Voyage" and the deck logbook which contained an entry by the chief mate after the fire and boat drill that all equipment was "in good working order and as required by law." Plaintiff objected to the admission of both records.

The objection to the safety committee report seems to be based in part on a claim that it was the captain's entry, without personal knowledge. But the court could find from the evidence that the purser had made the entry in the usual course of business, as it was his duty to do, and the captain merely endorsed it. Even if it be the captain's, if he made it in regular course of business on a report from a subordinate, it would still be admissible, and the lack of personal knowledge would go only to its weight. Gaussen v. United Fruit Co., 412 F.2d 72, 73 (2d Cir. 1969); United States v. New York Foreign Trade Zone Operators, 304 F.2d 792 (2d Cir. 1962). A more serious objection is that as in Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645 (1943), it was made for litigation rather than operation, but we think this not established. There was evidence as to the purpose of the safety meetings and the practice with respect to safety committee minutes. R. 12a-14a, deposition of Zahniser. The prime purpose of the safety committee is the promotion of adherence to careful practices rather than litigation of past accident claims.

We have in a number of cases permitted the use of an accident report prepared by the party offering it, rather than a "neutral third party," Gaussen v. United Fruit Co., supra ; United States v. New York Foreign Trade Zone Operators, supra ; Taylor v. Baltimore & O.R.R., 344 F.2d 281 (2d Cir. 1965); Keohane v. New York Central R.R., 418 F.2d 478, at p. 482 (2d Cir. Nov. 10, 1969). The test which has evolved from Palmer v. Hoffman is not simply the presence of motive to falsify on the part of the entrant, but whether the motive to falsify is sufficiently checked by other factors, such as the purpose and practice of the safety meetings testified to here.

Moreover, there is a non-hearsay aspect of the use of the report here. It contains in addition to the statement that "no accidents were reported," evidence that no accident was reported as having occurred. The testimony that it was the duty of those present to discuss accidents occurring on the voyage, that Lindheimer was among those present, that the purser's duty was to keep minutes of the meeting, and the absence of any mention of an accident in the report, is some proof that no accident did in fact occur. The fact of nonreporting is an act, not a hearsay statement. See March, 1969 Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, Rule 8-03(b) (7), Comment p. 190.

The principal objection to the use of the deck log appears to be that the chief officer, who made the entry that all equipment at the fire drill was in good working order as required by law, was available to testify at the deposition and there was no necessity for use of the entry. But the examination of the chief officer on his deposition raised at least a question of his recollection of the events, and it was within the court's discretion to let the log in. Moreover, the chief had testified on the deposition to the content of his entry. Compare Cahill v. New York, N.H. & H.R.R., 236 F.2d 410, 411 (2d Cir. 1956).

The judgment is affirmed.

Disposition

The judgment is affirmed.

LUMBARD, Chief Judge ...


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