Opinion · Court of Appeals for the Second Circuit
Herzig v. Swift & Co.
146 F.2d 444
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1945-01-04
- Topic
- general
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 *446 a writing must be proved by the introduction of the writing itself, unless its absence can be satisfactorily accounted for.” 1 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 differentiation has been adopted by the courts. 2 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. 3 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. 4 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 de…
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HERZIG v. SWIFT CO.,146 F.2d 444(2nd Cir. 1945)
HERZIG v. SWIFT CO.
No. 153.
Circuit Court of Appeals, Second Circuit.
January 4, 1945.
Action under Florida law by Jennie Herzig, as administratrix of the goods, chattels and credits of Herman Weintraub, deceased, against Swift Company to recover for decedent's death. From a judgment of the United States District Court dismissing plaintiff's complaint, the plaintiff appeals.
Reversed and remanded.
This is an action under Florida law for the wrongful death of the decedent. The suit was commenced by the plaintiff, the decedent's administratrix, in the State court, but was removed to the district court because of diversity of citizenship.
In regard to proof of damages, the plaintiff's witnesses testified that the deceased was forty-three years old at the time of his death, that he was a partner in a firm which contracted for hoisting and rigging in building construction work, that his work included the physical labor involved in operating the machines, that he was, in the opinion of the witness, in good physicalPage 445condition. The plaintiff offered testimony by one of the partners in the firm as to the amount of the partnership earnings, but this testimony was rejected on the ground that it was not the best evidence, that the books of the firm should have been produced to prove the firm's earnings.
At the conclusion of the plaintiff's case, the court dismissed the complaint on the ground that the failure to prove the earnings and savings of the decedent was a fatal defect as to proof of damages.
The pertinent sections of the Florida law read as follows:
"7047. (4960) Claim for death caused by negligence of another. — Whenever death of any person in this State shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness, or default, of any agent of any corporation, acting in his capacity of agent of such corporation (or by the wrongful act, negligence, carelessness or default of any ship, vessel or boat or persons employed thereon), and the act, negligence, carelessness or default, is such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action (or to proceed in rem against the said ship, vessel or boat, or in personam against the owners thereof, or those having control of her) and to recover damages in respect thereof, then and in every such case the person or persons who, or the corporation (or the ship, vessel or boat), which would have been liable in damages if death had not ensued, shall be liable to an action for damages (or if a ship, vessel or boat, to a libel in rem, and her owners or those responsible for her wrongful act, negligence, carelessness or default, to a libel in personam), notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony."
"7048. (4961). By whom brought; survival of action; proviso. — Every such action shall be brought by and in the name of the widow or husband, as the case may be, and where there is neither widow nor husband surviving the deceased; then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person killed. In case of the death of any person solely entitled, or of all the persons jointly entitled to sue, before action brought on before the recovery of a final judgment in an action brought by him or them, the right of action or the action as the case may be, shall survive to the person or persons next entitled to sue under this section, and in case of the death of one or more persons jointly entitled to sue before action brought or before the recovery of a final judgment in an action brought by them, the right of action or the action, as the case may be, shall survive to the survivor of such persons so jointly entitled to sue; and in every such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed: Provided, that any person or persons to whom a right of action may survive under the provisions of this law shall recover such damages as by law such person or persons are entitled in their own right to recover, irrespective of the damages recoverable by the person or persons whom he or they may succeed." F.S.A. §§ 768.01, 768.02.
George J. Stacy, of New York City (Joseph Kane of New York City, of counsel), for appellee.
Before CHASE, CLARK, and FRANK, Circuit Judges.
"In its modern application, the best evidence rule amounts to little more than the requirement that the contents ofPage 446a writing must be proved by the introduction of the writing itself, unless its absence can be satisfactorily accounted for."1Here 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 differentiation has been adopted by the courts.2On 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.3The federal courts have generally adopted the rationale limiting the "best evidence rule" to cases where the contents of the writing are to be proved.4We 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.5The statute has been interpreted to permit recovery equal to the 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.6Proof 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.7The 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.Page 447
- McKelvey, Evidence (5th Ed. 1944) 604; see 4 Wigmore, Evidence (3d Ed. 1940) §§ 1174, 1177-1182. It is pointed out that the best evidence rule when not applied to the contents of writings was a broadening rather than a restrictive doctrine. See Thayer, Cases on Evidence (2d Ed.) 778. ↩
- See 4 Wigmore, Evidence (3d Ed. 1940) §§ 1242-49, 1339(8); 22 C.J. 1016; 32 C.J.S., Evidence, § 787, pp. 713, 714. See also McKelvey, Evidence (5th Ed. 1944) 604ff; American Law Institute, Code of Evidence (1942) 298ff. ↩
- See cases cited in 4 Wigmore, Evidence (3d Ed. 1940) § 1244(4), n. 2, § 1339(8), n. 14. Of course, the best evidence rule applies where the witness is asked to testify concerning the contents of the books and not merely concerning facts which happen to be recorded in those books. ↩
- See Keene v. Meade, 3 Pet. 1,28 U.S. 1, 7, 8, 7 L.Ed. 581; R. Hoe Co. v. Commissioner, 2 Cir.,30 F.2d 630, 634; In re Ko-Ed Tavern, 3 Cir.,129 F.2d 806, 810, 142 A.L.R. 357; cf. Carroll v. Gimbel Bros. New York,195 App. Div. 444, 451, 186 N YS. 737, 741, appeal dismissed234 N.Y. 528, 138 N.E. 433. ↩
- See Jacksonville Electric Co. v. Bowden,54 Fla. 461, 45 So. 755, 15 L.R.A., N.S., 451; Florida East Coast Ry. Co. v. Hayes,67 Fla. 101, 64 So. 504, 7 A.L.R. 1310; Cudahy Packing Co. v. Ellis,105 Fla. 186, 140 So. 918, 919; Atlantic Coast Line R. Co. v. Woods,110 Fla. 147,148 So. 542; International Shoe Co. v. Hewitt,123 Fla. 587, 167 So. 7. ↩
- That sum when found must, of course, be discounted to present value. Florida East Coast Ry. Co. v. Hayes, supra. ↩
- In International Shoe Co. v. Hewitt, supra, recovery was allowed although no savings were shown and the deceased had earned nothing for four years prior to her death. ↩