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Mitchell v. American Export Isbrandtsen Lines Inc.

decided: July 10, 1970.


Waterman, Moore and Kaufman, Circuit Judges.

Author: Waterman

WATERMAN, Circuit Judge:

The plaintiff-appellant, a seaman, brought this action under the general maritime law as modified by the Jones Act, 46 U.S.C. § 688, to recover damages for an injury he allegedly sustained in a fall that he claimed occurred while he was employed as a fireman aboard the S.S. INDEPENDENCE, a vessel owned and operated by the defendant-appellee, American Export Isbrandtsen Lines, Inc.

The case was tried to a jury which returned a special verdict for the defendant that the plaintiff had not established his claim. Plaintiff's motion to set aside the verdict was denied and judgment was entered dismissing the plaintiff's complaint. Plaintiff then, pursuant to Rule 59, Fed.R.Civ.P., timely moved for a new trial. This motion was also denied and plaintiff appeals. We affirm the judgment and order entered below.

The one issue on appeal is whether the admission into evidence of the Report of Illness made out and signed by the ship's crew's physician who treated plaintiff on shipboard is reversible error. At the trial the fundamental issue was one of credibility. Plaintiff testified that between 2:00 and 2:30 A.M. on November 22, 1964 while he was engaged in emptying a bucket of kerosene into a waste oil tank in the engine room of the INDEPENDENCE he slipped on an accumulation of oil and thereby twisted and injured his back. He further related that after walking a few steps he collapsed and subsequently was taken to his quarters where he received medical treatment. He was unable to work for the remainder of the voyage and his condition was subsequently diagnosed as a herniated intervertebral disc.

The corporate defendant sought to refute the plaintiff's claim that his collapse and his back injury were caused by the occurrence plaintiff claimed caused it. The refutation was successfully accomplished through the testimony of the ship's doctor, that of three of plaintiff's shipmates, and by the introduction into evidence of documents. Dr. Bashline, the ship's doctor, testified that while examining the plaintiff shortly after his collapse, plaintiff gave no history of an injury or accident. To corroborate the doctor's testimony the ship's Surgeon's Log was introduced into evidence without objection. It merely reads: "States he [plaintiff] has a backache." Another document, a "Report of Illness" prepared by Dr. Bashline in connection with his examination, was admitted into evidence over plaintiff's objection. It stated:

Complained of sudden backache, no history of injury. Having difficulty walking.

Two of the three fact witnesses talked with plaintiff in the fire room after he had been stricken and before the plaintiff had been examined by Dr. Bashline. They both testified that at that time the plaintiff had not said that he had suffered an accident. One witness, First Engineer O'Callahan, testified that he visited the plaintiff in plaintiff's room sometime on November 22 after Dr. Bashline's examination and had asked the plaintiff if he had had an accident. The plaintiff had replied, "No."*fn1

Though the ship provided a form to be filled out for the reporting of accidents different from that for reporting illnesses, no accident report was prepared by any of the ship's officers in view of plaintiff's denial that he had suffered an accident, and the pertinent information was contained in the "Report of Illness" above-mentioned and in the ship's Surgeon's Log,*fn2 which detailed the day-to-day medical attention and treatment plaintiff received until the end of the voyage.

As stated earlier, the issue before us is whether the admission into evidence of this Report of Illness over plaintiff's objection was erroneous and if erroneous was so prejudicial as to require the reversal of the judgment below and a remand for a new trial.

While Dr. Bashline was testifying as defendant's witness he was handed the Report of Illness in order to refresh his memory of the relevant events in which he had participated. Plaintiff's objection to this procedure was overruled. With the document in hand the doctor then testified from his recollection as to the history be obtained from plaintiff at the time he was called to first examine plaintiff and the subsequent attention he gave to the seaman on November 22, 1964. Plaintiff seasonably objected to permitting Dr. Bashline to so testify, but, after plaintiff's objections had been overruled, the doctor testified that the Report of Illness was a document kept in the regular course of the crew's hospital affairs and business. Dr. Bashline was then asked to identify the ship's surgeon's log of the voyage and both log and Report were offered in evidence. The admission of the former was not objected to but the admission of the latter was. After the trial judge was satisfied from his own questions of the witness that the log and the Report were recorded in the regular course of the ship's business at about the time of the events they covered, plaintiff's objection to the Report was overruled and both documents were admitted into evidence. Plaintiff's counsel supported his objection to the admission of the Report by citing to the court Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645 (1943) and Puggioni v. Luckenbach S.S. Co., 286 F.2d 340 (2 Cir. 1961), quoting from the latter opinion.*fn3 In view of the ground relied upon by plaintiff and the interrogation of Dr. Bashline by the court it would seem that the Report was admitted pursuant to the statutory evidentiary rule set forth in the Federal Business Records Act, 28 U.S.C. § 1732.*fn4 Thereafter Dr. Bashline's direct examination continued. When it was concluded he was subjected to a most vigorous cross-examination during which several inconsistencies between his oral testimony and the contents of these two documents and those of the official log of this voyage of the S.S. INDEPENDENCE were uncovered and brought to the jury's attention.

In urging his position upon us plaintiff apparently would have us overlook the fact that Dr. Bashline was a witness in this case and was examined and cross-examined in the presence of the jury, the trier of fact. The exceptions to the hearsay rule which the Federal Business Records Act seeks to codify were designed to permit, under certain delineated circumstances, the introduction into evidence of documents when it was impractical or impossible to have the makers of them in court. In the much criticized case of Palmer v. Hoffman, supra, the maker of the report had deceased and was not available for cross-examination.

In United States v. New York Foreign Trade Zone Operators, 304 F.2d 792, 797 (2 Cir. 1962) we pointed out that there is an entirely different trial situation when the maker of the report is available in court to testify relative to the events which he recorded, for then the trustworthiness of his entries can be tested through adversary cross-examination of him. Here Dr. Bashline underwent extensive questioning as to the reliability of the facts he recorded in the Illness Report which he made out in regular course and signed during the voyage in his capacity as the doctor attending his patient. The document held inadmissible in Palmer v. Hoffman was a signed statement of a locomotive engineer who was driving a locomotive when it collided at a grade-crossing with an automobile. As a result of this accident severe and permanent injuries were suffered by the operator of the automobile, and his wife, a passenger in the car, was killed. It was of course inevitable that claims for damages for the husband's injuries and for the wife's death would be presented to the railroad and that if the claims could not be amicably adjusted suits would follow. The statement was one taken in question-and-answer form and represented a stenographic record of an interview, two days after the accident, between the engineer and an assistant superintendent of the railroad. The Court held that this Q and A record was "not a record made for the systematic conduct of the business as a business" 318 U.S. 109 at 113, 63 S. Ct. 477, at 480, 87 L. Ed. 645, but clearly was made with the likelihood of litigation in mind. As such, the court concluded that accident reports obtained by management from employees of a business are not "typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls." Id. at 113, 63 S. Ct. at 480.

The Court indicated throughout its opinion that inasmuch as the purpose of the statute was to make records admissible which were not to be testified to by the maker of them, the records admissible under the Federal Business Records Act should bear the stamp of reliability ...

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