Wingate v. Emery Air Freight Corp.
Wingate v. Emery Air Freight Corp.
Opinion of the Court
This appeal concerns the circumstances under which an employer’s report of injury, containing an account of an accident that resulted in injury to an employee, may be introduced in evidence, despite its hearsay nature, in a tort case brought by the plaintiff employee against a third party. We agree with the Appeals Court’s conclusion that the admission of the report in this case was prejudicial error, and reverse the judgment in favor of the defendant Emery
The plaintiff was employed by the J.A. Jones Construction Company (Jones Company) in Somerset, Massachusetts. He testified at trial that he had been injured at the Logan International Airport premises of Emery while accepting a delivery for Jones Company. According to the plaintiff, his injury occurred when an Emery employee negligently caused a crate to strike him and knock him down. Emery denied any knowledge of the accident, and gave evidence tending to show that the accident had not happened at Emery’s loading docks as alleged by the plaintiff.
Among the items of evidence offered by Emery was an “Employer’s First Report of Injury,” prepared by Jones Company pursuant to G. L. c. 152, § 19, and produced from the files of the Jones Company’s workmen’s compensation insurer.
The plaintiff objected on the ground that he had not participated in the preparation of the report. He admitted that he had told someone at Jones Company about his accident, but testified that he had not spoken to, and in fact had never met, Louis Belmont. This testimony was not contradicted. In his final charge, the judge instructed the jury that, if they determined that the plaintiff had made the statements contained in the report to the preparer, they should consider the report as. an inconsistent statement casting substantial doubt on the plaintiff’s credibility. If, however, they found that the plaintiff had not related the information to Belmont, they should not consider the report as evidence of inconsistency in the plaintiff’s “stories.”
The jury returned a verdict for Emery, and the plaintiff appealed. The Appeals Court reversed the judgment, reasoning that in the absence of proof that the information in the report reflected statements made by the plaintiff directly to the preparer, the admission of the report was prejudicial error. Wingate v. Emery Air Freight Corp., 11 Mass. App. Ct. 982, 984 (1981). We granted Emery’s request for further appellate review.
We dispose quickly of the premise that the report contained a prior inconsistency.
We turn now to the issue whether the report was admissible under the business records statute. Generally, evidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule. Bouchie v. Murray, 376 Mass. 524, 527-531 (1978). McCormick, Evidence § 246, at 585-586 (2d ed. 1972). See Fed. R. Evid. 805; Proposed Mass. R. Evid. 805. Since, in this case, there was no evidence to show that any statement by any person was within any other exception to the hearsay rule, our remaining inquiry relates to the business records statute.
It does not follow, however, that the preparer may rely on statements that are not themselves a part of the regular course of business record-keeping. The preparer’s hearsay sources must carry the same indicia of reliability, arising from regularity and business motives, that bring his own act of recording the information within the statutory exception. Thus, unless statements on which the preparer relies fall within some other exception to the hearsay rule, the proponent must show that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine. See Commonwealth v. DeBrosky, 363 Mass. 718, 724-725 & n.6 (1973); United States v. Burruss, 418 F.2d 677, 679 (4th Cir. 1969); Fagan v. Newark, 78 N.J. Super. 294, 319 (1963); McCormick, supra § 310, at 726-727. Cf. Saba v. Cohen, 333 Mass. 557, 558-559 (1956) (records transcribed from other records, also apparently made in ordinary course of business). Ordinarily this can, of course, be accomplished by presenting evidence of normal business practice, with no need to produce each speaker.
If the original source of the information was not an employee with “eyewitness” knowledge or similar “personal knowledge,” reliability is lacking. Further, if the original
Inferences were probably warranted that an employee of Jones Company had a duty to report an injury incurred by him while working, and that such reports were made in the regular course of business. However, as noted above, there was no evidence that the plaintiff told his story directly to Belmont. Of course it might have been shown that a fellow employee of the plaintiff was an eyewitness to the accident, and had a duty to report, but there was no evidence of any such eyewitness. In any event, there was no evidence that the plaintiff or anyone else with personal knowledge and a duty to report had relayed the information to the preparer of the record or to someone under a business duty to inform the preparer of the record, so that the intermediary’s statement would itself be a part of the business record-keeping process.
The admission of the report cannot be regarded as harmless error. See G. L. c. 231, § 119; Bouchie v. Murray, 376 Mass. 524, 530 (1978); Kelly v. O’Neil, 1 Mass. App. Ct. 313, 317 (1973). As Emery points out, there was other evidence suggesting that the accident did not take place on Emery premises and was not caused by the negligence of Emery employees. However, none was attributable to the plaintiff himself. Moreover, the report was a written document, highly damaging to the plaintiff’s credibility. Not only was it read in its entirety to the jury, but the jury were permitted to study it in the jury room. Therefore, reversal and a new trial are required. It follows that we need not consider other contentions, relating to the privileged nature
The judgment is reversed, the verdict set aside, and the case remanded to the Superior Court for a new trial.
So ordered.
General Laws c. 233, § 78, as amended by St. 1954, c. 442, § 1, reads in pertinent part: “An entry in an account kept in a book or by a card system or by any other system of keeping accounts, or a 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 not be inadmissible in any civil or criminal proceeding as evidence of the facts therein stated because it is transcribed or because it is hearsay or self-serving, if the court finds that the entry, writing or record was made in good faith in the regular course of business and before the beginning of the civil or criminal proceeding aforesaid and that 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.”
General Laws c. 152, § 19, provides that employers must keep records of all injuries sustained by employees in the course of employment, and must file reports of such injuries with the division of industrial accidents. The “First Report” offered by Emery was the insurer’s copy of a report that the Jones Company presumably had filed with the division.
The plaintiff objected that the statutory exception depends on the regular course of business of the preparer — here Jones Company — and that the insurer’s practices were irrelevant. However, because the plaintiff has not pressed this objection on appeal, it is not before us.
The judge’s limitation of the evidence to the issue of credibility was consistent with the attitude of the parties. Although the witness whose credibility was at stake was the plaintiff, a party to the action, both parties treated the report as a prior inconsistent statement rather than an admission, and have continued this characterization on appeal.
We do not have before us a complete record of the trial. Emery argues that the plaintiff cannot advance an argument based on the sufficiency of the evidence when he has not produced a full record on appeal. See Old Colony Trust Co. v. Shaw, 348 Mass. 212, 216 (1964). However, the record does include the bench conference and voir dire examination relating to the report, the submission of the report to the jury, and the plaintiff’s rebuttal testimony. It appears, therefore, that “all the evidence material to the issue,” id., is before us. If Emery wished to rely on relevant facts brought out in other portions of the trial (and it has not suggested that any such facts exist), it should have requested that the plaintiff include them in the record. See Mass. R. A. P. 18 (b), as amended, 378 Mass. 940 (1979).
Concurring Opinion
(concurring). I agree with the result reached by the court in this case. While I agree also with the reasons stated by the court, a few additional words may be helpful to a fuller understanding of the statutory business records exception to the hearsay rule.
When a document is offered as being within the hearsay exception created by G. L. c. 233, § 78, it is important to keep in mind that there are apt to be two major problems to be faced in determining its admissibility. The first question is whether the writing itself qualifies as a “business record” within the terms of G. L. c. 233, § 78. Certain preliminary findings must be made by the trial judge before this first obstacle to admissibility can be satisfied. See Household Fuel Corp. v. Hamacher, 331 Mass. 653 (1954). Cf. Bouchie v. Murray, 376 Mass. 524, 527-528 (1978) (dealing with G. L. c. 233, § 79, pertaining to the admissibility of hospital records). P.J. Liacos, Massachusetts Evidence 330 (5th ed. 1981). It is clear that unless the writing qualifies as within the “business records” exception to the hearsay rule, neither it nor anything contained in it is admissible.
If the first obstacle to admissibility is overcome, then and only then, does the second question possibly arise. That question is whether all or only some of the material and information contained in the document qualifies as being within the scope of the statutory exception.
To illustrate these preliminary points by way of example, a document would not be admissible under G. L. c. 233, § 78, if it was not made “in good faith . . . before the beginning of the civil or criminal proceeding” in which it is offered.
In my view, the problem the court addresses (as to the source of the information in the business record) goes to the second question, not the first. Although I agree with the court’s statement (supra at 404 n.3), that the issue has not been briefed, I believe it would be helpful to point out that the report offered here did not qualify, at the threshold, as a business record of the workmen’s compensation insurer.
General Laws c. 233, § 78, provides for the admissibility of a record “made ... in the regular course of business” where it is shown that “it was the regular course of such business to make such memorandum or record” (emphasis supplied). The insurer did not “make” this record, it simply received it. The significance of this distinction is found in the historical background of the enactment of G. L. c. 233, § 78, and comparable statutes in other jurisdictions.
The common law rules of exception to the hearsay rule regarding business records were wholly inadequate to meet the needs and realities of a modern industrial and commercial society. 5 J. Wigmore, Evidence §§ 1521, 1522, 1561a, 1561b (Chadbourn rev. 1974). Wigmore stated well the reasoning that led to the enactment of statutes such as G. L.
Speaking of business records Wigmore wrote: “Such entries are dealt with ... in the most important undertakings of mercantile and industrial life. They are the ultimate basis of calculation, investment, and general confidence in every business enterprise. ... It would seem that expedients which the entire commercial world recognizes as safe could be sanctioned, and not discredited, by courts of justice. . . . The merchant and the manufacturer must not be turned away remediless because methods in which the entire community places a just confidence are a little difficult to reconcile with technical judicial scruples on the part of the same persons who as attorneys have already employed and relied upon the same methods. In short, courts must here cease to be pedantic and endeavor to be practical.” 5 J. Wigmore, supra § 1530, at 452.
The courts did not, as a whole, respond to Wigmore’s plea, but legislatures did. Keeping the object of such legislation in mind, it is clear that business enterprises rely on records they make to the extent those records reflect, as the court points out, information based on personal knowledge of its own employees who have a business interest to report accurately. The injury report received by the insurer has none of these indicia of reliability. Hence, it is not a business record admissible by virtue of G. L. c. 233, § 78.
am authorized to state that the other members of the quorum, including the author of the court’s opinion, join in the views expressed in this opinion. They believe, however, that such views need not be included in the court’s opinion because the issue was not briefed by the parties.
Whether it would be a business record of the plaintiff’s employer is not before us because it was not offered or received as such. Whether it would be inadmissible in any event by virtue of the privilege stemming from G. L. c. 152, § 19, see Gerry v. Worcester Consol. St. Ry., 248 Mass. 559,-566-567 (1924), is a question we need not reach. Nor do I make an implication that reports pertaining to accidents are generally inadmissible as business records. See Julian v. Randazzo, 380 Mass. 391, 394 (1980); Commonwealth v. Walker, 379 Mass. 297, 302 (1979); Kelly v. O’Neil, 1 Mass. App. Ct. 313 (1973). As the court points out, if the report is assumed to be a business record then second level hearsay contained in it would still be inadmissible unless a second level exception to the hearsay rule is found applicable.
Reference
- Full Case Name
- Donald A. Wingate vs. Emery Air Freight Corp.
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- 75 cases
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- Published