Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 

U.S. Court of Appeals for the Fifth Circuit

1961

Chapter

6

Title

Hearsay

Page

257

Topic

807 Residual Exception

Quick Notes

On a BRIGHT SUNNY morning, a Courthouse clock tower was ALLEGEDLY hit by lighting and the clock tower telescoped into the courtroom and caused over $100,000 worth of damage.  The insurance company engineers said the courthouse collapsed on its own weight.  The Insurance company engineers said the collapse of the tower was a structural defect.  Furthermore, they said the char was the result of a fire that the courthouse tower and roof must have occurred many years before.  The defense introduced a copy of a newspaper article that talked about a fire at the courthouse during construction in 1901, some 58 years before THIS trial (the article was 56 years old).  The plaintiff argued that it was neither a business record nor an ancient document, nor was it admissible under any recognized exception to the hearsay doctrine.

Court Holding

o         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

Rule 43(a)

o         Rule 43(a) carries out that purpose by enabling federal courts to apply a liberal, flexible rule for the admissibility of evidence, unencumbered by common law archaisms

Wigmore's Requirements

o          The requisites of an exception to the hearsay rule are necessity and circumstantial guaranty of trustworthiness.

Wigmore Necessity Requirement

o         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.

o         Necessity is not to be interpreted as uniformly demanding a showing of total inaccessibility.

o          But that necessity exists where otherwise great practical inconvenience would be experienced in making the desired proof.

Wigmore Trustworthiness Requirement (Three Circumstances)

o         There are three sets of circumstances when hearsay is trustworthy enough to serve as a practicable substitute for the ordinary test of cross-examination:

1.     Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed;

2.     Where, even though a desire to falsify might present itself, other considerations, such as the danger of easy detection on the fear of punishment, would probably counteract its force;

3.     Where the statement was made under such conditions of publicity that an error, if it had occurred, would probably have been detected and corrected.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

Whether the evidence of a newspaper to show that the Dallas County Courthouse in Selma, Alabama, was damaged by fire in 1901 was admissible?  Yes.

Procedure

Trial

o         United States District Court for the Southern District of Alabama entered a judgment in favor of Commercial Union Assurance.

Appellant

o         We hold that the newspaper was admissible, and affirm the judgment below

Facts

Discussion

Key Phrases

Rules

Pl Dallas County (Appellant)

Df Commercial Union Assurance Co (Appellee)

Description

o         After a Courthouse was hit by lighting the clock tower telescoped into the courtroom and caused over $100,000 worth of damage. 

o         The insurance company engineers say the courthouse collapsed on its own weight.  The collapse of the tower was a structural defect. 

o         The char was the result of the fire that the courthouse tower and roof must have many years before.

Witnesses

o         Say lighting hit the courthouse tower.

Insurance Engineers

o         Examined the debris and said lighting did not strike the clock tower.

Jury Believe Insurance

o         Believed the insurers witnesses.

Defense Introduced Mornings Times Article written approximate 58 years before

o         It was an unsigned article.

o         Described a fire that occurred at two in the morning on June 9, 1901, while the courthouse was under construction.

o         The unfinished dome was in flames, but the courthouse itself was salvaged.

Plaintiff Objected

o         Newspaper article was hearsay.

o         It was not a business record not an ancient document, nor was it admissible under any recognized exception to the hearsay doctrine.

Trial Judge Admitted The Article.

Rule 43(a)

o         Rule 43(a) carries out that purpose by enabling federal courts to apply a liberal, flexible rule for the admissibility of evidence, unencumbered by common law archaisms

G. & C. Merriam Co. v. Syndicate Pub. Co., 2

o         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.

o         The bone of contention was whether a statement in the preface to the dictionary was admissible as evidence of the facts it recited.

Wigmore's Requirements

o          The requisites of an exception to the hearsay rule are necessity and circumstantial guaranty of trustworthiness.

Wigmore Necessity Requirement

o         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.

o         Necessity is not to be interpreted as uniformly demanding a showing of total inaccessibility.

o          But that necessity exists where otherwise great practical inconvenience would be experienced in making the desired proof.

Court - Necessity In This Case

o         The newspaper article referred to an fire that occurred 58 years before THIS trial.

o         Any witnesses would either be dead or have dimmed faculties.

o         Seems impossible that a witnesss testimony would not be as accurate and reliable as a contemporary newspaper article.

Court Ancient Document Exception

o         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.

o         Here, the Selma Times-Journal article is almost two generations old.

o         The principle of necessity, not requiring absolute impossibility or total inaccessibility of first-hand knowledge, is satisfied by the practicalities of the situation before us.

Wigmore Trustworthiness Requirement (Three Circumstances)

o         There are three sets of circumstances when hearsay is trustworthy enough to serve as a practicable substitute for the ordinary test of cross-examination:

1.     Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed;

2.     Where, even though a desire to falsify might present itself, other considerations, such as the danger of easy detection on the fear of punishment, would probably counteract its force;

3.     Where the statement was made under such conditions of publicity that an error, if it had occurred, would probably have been detected and corrected.

Court Trustworthiness In This Case (Not conceivable)

o         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.

Without Motive to Falsify

o         He is without motive to falsify, and a false report would have subjected the newspaper and him to embarrassment in the community.

Article is more reliable

o         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

Court Holding

o         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

Affirmed

Rules

Rule 807. Residual Exception

o    A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is NOT excluded by the hearsay rule, if the court determines that

o    (A) the statement is offered as evidence of a material fact;

o    (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

o    (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

o    However, a statement may NOT be admitted under this exception UNLESS the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

o    Notes

o    Provides a mechanism through that otherwise inadmissible evidence may be admitted without meeting a specific hearsay exception.

o    The evidence must be reliable, material, probative and server the interest of justice.

Rule 43(a)

o         Rule 43(a) carries out that purpose by enabling federal courts to apply a liberal, flexible rule for the admissibility of evidence, unencumbered by common law archaisms

Wigmore's Requirements

o          The requisites of an exception to the hearsay rule are necessity and circumstantial guaranty of trustworthiness.

Wigmore Necessity Requirement

o         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.

o         Necessity is not to be interpreted as uniformly demanding a showing of total inaccessibility.

o          But that necessity exists where otherwise great practical inconvenience would be experienced in making the desired proof.

Wigmore Trustworthiness Requirement (Three Circumstances)

o         There are three sets of circumstances when hearsay is trustworthy enough to serve as a practicable substitute for the ordinary test of cross-examination:

1.     Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed;

2.     Where, even though a desire to falsify might present itself, other considerations, such as the danger of easy detection on the fear of punishment, would probably counteract its force;

3.     Where the statement was made under such conditions of publicity that an error, if it had occurred, would probably have been detected and corrected.

Class Notes