Dallas County v. Commercial Union Assurance Co.

WISDOM, J. This appeal presents a single question--the admissibility in evidence of a newspaper to show that the Dallas County Courthouse in Selma, Alabama, was damaged by fire in 1901. We hold that the newspaper was admissible, and affirm the judgment below.

On a bright, sunny morning, July 7, 1957, the clock tower of the Dallas County Courthouse at Selma, Alabama, commenced to lean, made loud cracking and popping noises, then fell, and telescoped into the courtroom. Fortunately, the collapse of the tower took place on a Sunday morning; no one was injured, but damage to the courthouse exceeded $100,000. An examination of the tower debris showed the presence of charcoal and charred timbers. The State Toxicologist, called in by Dallas County, reported the char was evidence that lightning struck the courthouse. Later, several residents of Selma reported that a bolt of lightning struck the courthouse July 2, 1957. On this information, Dallas County concluded that a lightning bolt had hit the building causing the collapse of the clock tower five days later. Dallas County carried insurance for loss to its courthouse caused by fire or lightning. The insurers' engineers and investigators found that the courthouse collapsed of its own weight. They reported that the courthouse had not been struck by lightning; that lightning could not have caused the collapse of the tower; that the collapse of the tower was caused by structural weaknesses attributable to a faulty design, poor construction, gradual deterioration of the structure, and overloading brought about by remodeling and the recent installation of an air-conditioning system, part of which was constructed over the courtroom trusses. In their opinion, the char was the result of a fire in the courthouse tower and roof that must have occurred many, many years before July 2, 1957. The insurers denied liability.

The County sued its insurers in the Circuit Court of Dallas County. As many of the suits as could be removed, seven, were removed to the United States District Court for the Southern District of Alabama, and were consolidated for trial. The case went to the jury on one issue: did lightning cause the collapse of the clock tower?

The record contains ample evidence to support a jury verdict either way. The County produced witnesses who testified they saw lightning strike the clock tower; the insurers produced witnesses who testified an examination of the debris showed that lightning did not strike the clock tower. Some witnesses said the char was fresh and smelled smoky; other witnesses said it was obviously old and had no fresh smoky smell at all. Both sides presented a great mass of engineering testimony bearing on the design, construction, overload or lack of overload. All of this was for the jury to evaluate. The jury chose to believe the insurers' witnesses and brought in a verdict for the defendants.

During the trial the defendants introduced a copy of the Morning Times of Selma for June 9, 1901. This issue carried an unsigned article describing a fire that occurred at two in the morning of June 9, 1901, while the courthouse was still under construction. The article stated, in part: "The unfinished dome of the County's new courthouse was in flames at the top, and ... soon fell in. The fire was soon under control and the main building was saved...." The insurers do not contend that the collapse of the tower resulted from unsound charred timbers used in the repair of the building after the fire; they offered the newspaper account to show there had been a fire long before 1957 that would account for charred timber in the clock tower.

As a predicate for introducing the newspaper in evidence, the defendants called to the stand the editor of the Selma Times-Journal who testified that his publishing company maintains archives of the published issues of the Times-Journal and of the Morning Times, its predecessor, and that the archives contain the issue of the Morning Times of Selma for June 9, 1901, offered in evidence. The plaintiff objected that the newspaper article was hearsay; that it was not a business record nor an ancient document, nor was it admissible under any recognized exception to the hearsay doctrine. The trial judge admitted the newspaper as part of the records of the Selma Times-Journal. The sole error Dallas County specifies on appeal is the admission of the newspaper in evidence.

In the Anglo-American adversary system of law, courts usually will not admit evidence unless its accuracy and trustworthiness may be tested by cross-examination. Here, therefore, the plaintiff argues that the newspaper should not be admitted: "You cannot cross-examine a newspaper." [FN1] Of course, a newspaper article is hearsay, and in almost all circumstances is inadmissible. However, the law governing hearsay is somewhat less than pellucid. And, as with most rules, the hearsay rule is not absolute; it is replete with exceptions. Witnesses die, documents are lost, deeds are destroyed, memories fade. All too often, primary evidence is not available and courts and lawyers must rely on secondary evidence....

[FN1] This argument, a familiar one, rests on a misunderstanding of the origin and the nature of the hearsay rule. The rule is not an ancient principle of English law recognized at Runnymede. And, gone is its odor of sanctity.

Wigmore is often quoted for the statement that ‘cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of the truth’. 5 Wigmore § 1367 (3rd ed.). In over 1200 pages devoted to the hearsay rule, however, he makes it very clear that:

"The rule aims to insist on testing all statements by cross-examination, if they can be. . . . No one could defend a rule which pronounced that all statements thus untested are worthless; for all historical truth is based on uncross-examined assertions; and every day's experience of life gives denial to such an exaggeration. What the Hearsay Rule implies -- and with profound verity -- is that all testimonial assertions ought to be tested by cross-examination, as the best attainable measure; and it should not be burdened with the pedantic implication that they must be rejected as worthless if the test is unavailable." 1 Wigmore § 8c. In this connection see Falknor, The Hearsay Rule and Its Exceptions, 2 UCLA L.Rev. 43 (1954).

In The Introductory Note to Chapter VI, Hearsay Evidence, American Law Institute, Model Code of Evidence (1942), Edmund M. Morgan, Reporter, it is pointed out that "the hearsay rule is the child of the adversary system". The Note continues:

"During the first centuries of the jury system, the jury based its decision upon what the jurors themselves knew of the matter in dispute and what they learned through the words of their fathers and through such words of these persons whom they are bound to trust as worthy. . . . Until the end of the sixteenth century hearsay was received without question.

". . . The opportunity for cross-examination is not a necessary element of a jury system, while it is the very heart of the adversary system.

". . . As the judges began their attempts to rationalize the results of the decisions dealing with evidence, they first relied upon the general notion that a party was obliged to produce the best evidence available, but no more. Had they applied this generally, hearsay would have been received whenever better evidence could not be obtained. Therefore the judges discovered a special sort of necessity in . . . exceptional cases . . . [making] the admissible hearsay less unreliable than hearsay in general. . . . [By 1840] it became the fashion to attribute the exclusion of hearsay to the incapacity of the jury to evaluate, and in the development of exceptions to the rule, courts have doubtless been influenced by this notion. . . . Modern textwriters and judges have purported to find for each exception some sort of necessity for resort to hearsay and some condition attending the making of the excepted statement which will enable the jury to put a fair value upon it and will thus serve as a substitute for cross-examination. A careful examination of the eighteen or nineteen classes of utterances, each of which is now recognized as an exception to the hearsay rule by some respectable authority, will reveal that in many of them the necessity resolves itself into mere convenience and the substitute for cross-examination is imperceptible. . . . In most of the exceptions, however, the adversary theory is disregarded. There is nothing in any of the situations to warrant depriving the adversary of an opportunity to cross-examine; but those rationalizing the results purport to find some substitute for cross-examination. In most instances one will look in vain for anything more than a situation in which an ordinary man making such a statement would positively desire to tell the truth; and in some the most that can be claimed is the absence of a motive to falsify."

For the history of the rule see 5 Wigmore, Evidence, § 1364 (3rd ed.); 9 Holdsworth's History of English Law, 214 (1926).

We turn now to a case, decided long before the Federal Rules were adopted, in which the court used an approach we consider appropriate for the solution of the problem before us. G. & C. Merriam Co. v. Syndicate Pub. Co., 2 Cir., 1913, 207 F. 515, 518, concerned a controversy between dictionary publishers over the use of the title "Webster's Dictionary" when the defendant's dictionary allegedly was not based upon Webster's Dictionary at all. The bone of contention was whether a statement in the preface to the dictionary was admissible as evidence of the facts it recited. Ogilvie, the compiler of the dictionary, stated in his preface that he used Webster's Dictionary as the basis for his own publication. The dictionary, with its preface, was published in 1850, sixty-three years before the trial of the case. Ogilvie's published statement was challenged as hearsay. Judge Learned Hand, then a district judge, unable, as we are here, to find a case in point, for authority relied solely on Wigmore on Evidence (then a recent publication), particularly on Wigmore's analysis that "the requisites of an exception of the hearsay rules are necessity and circumstantial guaranty of trustworthiness." Wigmore on Evidence, §§1421, 1422, 1690 (1st ed. 1913). Applying these criteria, Judge Hand held that the statement was admissible as an exception to the hearsay rule:

"Ogilvie's preface is of course an unsworn statement and as such only hearsay testimony, which may be admitted only as an exception to the general rule. The question is whether there is such an exception. I have been unable to find any express authority in point and must decide the question upon principle. In the first place, I think it fair to insist that to reject such a statement is to refuse evidence about the truth of which no reasonable person should have any doubt whatever, because it fulfills both the requisites of an exception to the hearsay rule, necessity and circumstantial guaranty of trustworthiness. Wigmore, §§1421, 1422, 1906.... Besides Ogilvie, everyone else is dead who ever knew anything about the matter and could intelligently tell us what the fact is.... As to the trustworthiness of the testimony, it has the guaranty of the occasion, at which there was no motive for fabrication." 207 F. 515, 518.

The Court of Appeals adopted the district court's opinion in its entirety.

The first of the two requisites is necessity. As to necessity, Wigmore points out this requisite means that unless the hearsay statement is admitted, the facts it brings out may otherwise be lost, either because the person whose assertion is offered may be dead or unavailable, or because the assertion is of such a nature that one could not expect to obtain evidence of the same value from the same person or from other sources. Wigmore, §1421 (3rd ed.). "In effect, Wigmore says that, as the word necessary is here used, it is not to be interpreted as uniformly demanding a showing of total inaccessibility of firsthand evidence as a condition precedent to the acceptance of a particular piece of hearsay, but that necessity exists where otherwise great practical inconvenience would be experienced in making the desired proof. (Wigmore, 3d Ed., Vol. V, sec. 1421; Vol. VI, sec. 1702).... If it were otherwise, the result would be that the exception created to the hearsay rule would thereby be mostly, if not completely, destroyed." United States v. Aluminum Co. of America, D.C. 1940, 35 F. Supp. 820, 823.

The fire referred to in the newspaper account occurred fifty-eight years before the trial of this case. Any witness who saw that fire with sufficient understanding to observe it and describe it accurately, would have been older than a young child at the time of the fire. We may reasonably assume that at the time of the trial he was either dead or his faculties were dimmed by the passage of fifty-eight years. It would have been burdensome, but not impossible, for the defendant to have discovered the name of the author of the article (although it has no by-line) and, perhaps, to have found an eyewitness to the fire. But it is improbable--so it seems to us--that any witness could have been found whose recollection would have been accurate at the time of the trial of this case. And it seems impossible that the testimony of any witness would have been as accurate and as reliable as the statement of facts in the contemporary newspaper article.

The rationale behind the "ancient documents" exception is applicable here: after a long lapse of time, ordinary evidence regarding signatures or handwriting is virtually unavailable, and it is therefore permissible to resort to circumstantial evidence. Thus, in Trustees of German Township, Montgomery County v. Farmers & Citizens Savings Bank Co., Ohio Com. Pl. 1953, 113 N.E.2d 409, 412, affirmed Ohio App., 115 N.E.2d 690, the court admitted as ancient documents newspapers eighty years old containing notices of advertisements for bids relating to the town hall: "Such exhibits, by reason of age, alone, and unquestioned authenticity, qualify as ancient documents." The ancient documents rule applies to documents a generation or more in age. Here, the Selma Times-Journal article is almost two generations old. The principle of necessity, not requiring absolute impossibility of total inaccessibility of first-hand knowledge, is satisfied by the practicalities of the situation before us.

The second requisite for admission of hearsay evidence is trustworthiness. According to Wigmore, there are three sets of circumstances when hearsay is trustworthy enough to serve as a practicable substitute for the ordinary test of cross-examination:

Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed; where, even though a desire to falsify might present itself, other considerations, such as the danger of easy detection or the fear of punishment, would probably counteract its force; where the statement was made under such conditions of publicity that an error, if it had occurred, would probably have been detected and corrected.

5 Wigmore, Evidence, §1422 (3rd ed.). These circumstances fit the instant case.

There is no procedural canon against the exercise of common sense in deciding the admissibility of hearsay evidence. In 1901 Selma, Alabama was a small town. Taking a common sense view of this case, it is inconceivable to us that a newspaper reporter in a small town would report there was a fire in the dome of the new courthouse--if there had been no fire. He is without motive to falsify, and a false report would have subjected the newspaper and him to embarrassment in the community. The usual dangers inherent in hearsay evidence, such as lack of memory, faulty narration, intent to influence the court proceedings, and plain lack of truthfulness are not present here. To our minds, the article published in the Selma Morning-Times on the day of the fire is more reliable, more trustworthy, more competent evidence than the testimony of a witness called to the stand fifty-eight years later.

We hold, that in matters of local interest, when the fact in question is of such a public nature it would be generally known throughout the community, and when the questioned fact occurred so long ago that the testimony of an eye-witness would probably be less trustworthy than a contemporary newspaper account, a federal court, under Rule 43(a), may relax the exclusionary rules to the extent of admitting the newspaper article in evidence. We do not characterize this newspaper as a "business record," nor as an "ancient document," nor as any other readily identifiable and happily tagged species of hearsay exception. It is admissible because it is necessary and trustworthy, relevant and material, and its admission is within the trial judge's exercise of discretion in holding the hearing within reasonable bounds.

Judgment is affirmed.