Hoffman v. Palmer

United States Court of Appeals for the Second Circuit · 1942 · Evidence

129 F.2d 976 (2d Cir. 1942)

Updated August 22, 2026

Evidencehearsaybusiness recordsregular course of businesstrustworthinessmotive to misrepresentaccident report28 U.S.C.A. § 695

Facts

Plaintiff's car was struck by defendants' locomotive at a grade crossing in West Stockbridge, Massachusetts, injuring plaintiff and killing his wife. Defendants sought to introduce a signed, stenographic statement given by the locomotive engineer two days after the accident to railroad officials; the engineer had died before trial. The statement was made pursuant to the railroad's regular practice of taking such reports after accidents. Defendants also complained of a ruling about access to a witness's prior written statement, exclusion of a railroad engineer's later visibility observations at the crossing, and the instruction placing the burden of proving contributory negligence on defendants.

Issue

Whether the trial court erred in excluding the deceased locomotive engineer's post-accident statement under the federal business-records statute, 28 U.S.C.A. § 695, and whether the other challenged evidentiary rulings and burden-of-proof instruction required reversal. More specifically, the central question was whether a participant-employee's accident report, prepared with probable litigation in mind and under a strong motive to exculpate himself and his employer, is made in the "regular course of business" within the statute.

Rule

A writing is not admissible under 28 U.S.C.A. § 695 merely because a business regularly requires it. The statute does not permit admission of a hearsay memorandum or report concerning an accident, prepared after the accident by a participant who knows he is likely to be charged with wrongdoing in probable litigation and therefore has a strong desire to exculpate himself or his employer; such a report is not within the statutory meaning of "regular course of business" because the regularity required by the exception must furnish circumstantial guarantees of trustworthiness and counteract temptation to misstate.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Cleveland, a freight company requires every driver involved in a collision to give a signed written account to the safety office within 24 hours. After a fatal intersection crash, the driver dies before trial, and the company offers his signed account to show he had the green light.

Is the signed account admissible under the federal business-records statute as construed by the majority opinion?

Explanation. The majority held that regular company practice alone is insufficient. A report concerning an accident, prepared after the event by an employee who participated in it and knows probable litigation is likely, lacks the trustworthiness that gives business records their evidentiary justification. Death of the maker and the report’s form do not change that result.