Johnson v. Lutz

HUBBS, J. This action is to recover damages for the wrongful death of the plaintiff's intestate, who was killed when his motorcycle came into a collision with the defendants' truck at a street intersection. There was a sharp conflict in the testimony in regard to the circumstances under which the collision took place. A policeman's report of the accident filed by him in the station house was offered in evidence by the defendants under section 374-a of the Civil Practice Act, and was excluded. The sole ground for reversal urged by the appellants is that said report was erroneously excluded....

... The memorandum in question was not made in the regular course of any business, profession, occupation, or calling. The policeman who made it was not present at the time of the accident. The memorandum was made from hearsay statements of third persons who happened to be present at the scene of the accident when he arrived. It does not appear when they saw the accident and stated to him what they knew, or stated what some other persons had told them.

The purpose of the Legislature in enacting section 374-a was to permit a writing or record, made in the regular course of business, to be received in evidence, without the necessity of calling as witnesses all of the persons who had any part in making it, provided the record was made as a part of the duty of the person making it, or on information imparted by persons who were under a duty to impart such information. The amendment permits the introduction of shopbooks without the necessity of calling all clerks who may have sold different items of account. It was not intended to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto. It was said, in Mayor, etc., of New York City v. Second Ave. R. Co., 102 N.Y. 572, at page 581, 7 N.E. 905, 909, 55 Am. Rep. 839: "It is a proper qualification of the rule admitting such evidence that the account must have been made in the ordinary course of business, and that it should not be extended so as to admit a mere private memorandum, not made in pursuance of any duty owing by the person making it, or when made upon information derived from another who made the communication casually and voluntarily, and not under the sanction of duty or other obligation."

An important consideration leading to the amendment was the fact that in the business world credit is given to records made in the course of business by persons who are engaged in the business upon information given by others engaged in the same business as part of their duty.

Such entries are dealt with in that way 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. Nor does the practical impossibility of obtaining constantly and permanently the verification of every employee affect the trust that is given to such books. It would seem that expedients which the entire commercial world recognizes as safe could be sanctioned, and not discredited, by courts of justice. When it is a mere question of whether provisional confidence can be placed in a certain class of statements, there cannot profitably and sensibly be one rule for the business world and another for the court-room. The merchant and the manufacturer must not be turned away remediless because the 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.

3 Wigmore on Evidence (1923) §1530, p.278.

The Legislature has sought by the amendment to make the courts practical. It would be unfortunate not to give the amendment a construction which will enable it to cure the evil complained of and accomplish the purpose for which it was enacted. In constructing it, we should not, however, permit it to be applied in a case for which it was never intended.

The judgment should be affirmed, with costs.