Heston v. Payne
Heston v. Payne
Opinion of the Court
In November of 1972, the plaintiff respondent Glenn E. Heston, a tenant farmer, and his mother, the plaintiff respondent Pearl Heston, whose land he was farming, brought suit against the defendant appellants Russell Payne and Robert Payne, Jr., brothers doing business as Payne’s Flying Service. The plaintiffs alleged that on May 28, 1972, Robert Payne had applied the herbicide 2-4-D to a crop of a nearby farm, that he had not taken adequate precautions to prevent the herbicide from damaging other crops in the vicinity, and that 2-4 — D which Payne had carelessly applied to the neighboring farmer’s field had entered the Hestons’ field and damaged the Hestons’ red clover crop.
In support of his contentions that he had taken reasonable precautions while applying the herbicide, Payne introduced into evidence exhibit A, which he testified was a business record prepared in the regular course of business on the day the 2-4 — D was applied. The entries in that exhibit included the wind direction and speed, the temperature, and the time at which he had stopped his application of the herbicide on the morning in question. The information in the exhibit supported Payne’s testimony at trial that he had not been careless in the application of the herbicide and was not responsible for any damage to the clover crop.
The verdict, which nine of the twelve jurors signed, was for the defendant; judgment was entered upon the verdict on April 6, 1973. On July 27, 1973, the plaintiffs filed a supplemental motion for new trial, praying that the judgment be set aside under I.R.C.P. 60(b)(3)
It has been shown by clear and convincing evidence that Payne misrepresented that exhibit A was a business record prepared at the time he applied the 2-4-D, which he knew was not true, and that the exhibit contained representations which he could not verify from examination of notes he had made on the day he applied the 2-4-D or which were in conflict with those notes.
Although business records are hearsay, they are admissible into evidence under the provisions of I.C. § 9-414 if “made in the regular course of business, at or near the time of the act, condition or event . . . .” Among the reasons for this exception to the hearsay rule, according to McCormick on Evidence, § 306, pp. 719-720 (2d ed. 1972), is the “unusual reliability” of records customarily and systematically maintained as part of a business’s normal operating procedure. If exhibit A were in fact the business record that it was represented to be it would have been strong evidence that the clover crop had not been damaged by careless application of 2-4-D. Thus, because exhibit A purported to recite the temperature, quitting time and other data concerning application of the herbicide on the day in question, and because this document was represented as an authentic business record and not as a document prepared in anticipation of trial, the probability that the exhibit could have tainted the verdict of the jury is apparent. In this circumstance, “[w]e will not attempt to weigh the effect of fraud upon the verdict; rather, the mere existence of fraud, taken together with the probability of influence resulting therefrom, is sufficient to require vacation of the judgment and a new trial.” State ex rel. Symms v. V-1 Oil Co., 94 Idaho 456, 458, 490 P.2d 323, 325 (1971).
Order affirmed. Costs to respondents.
. The district court ruled upon the motion on December 11, 1973. I.R.C.P. 60(b) then in effect provided:
“RUDE 60(b). Mistakes, Inadvertence, Excusable Neglect, Newly Discovered Evidence, Fraud, Grounds For Relief From Judgment Or Order. — On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment . . . for the following reasons : . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . The motion shall be made . . . not more than six months . . . after the judgment . was entered or taken . . . .”
Reference
- Full Case Name
- Glenn E. HESTON and Pearl Heston, Plaintiffs-Respondents v. Russell PAYNE and Robert Payne, Jr., d/b/a Payne's Flying Service
- Cited By
- 1 case
- Status
- Published