Before BIGGS, Chief Judge, and STALEY and FORMAN, Circuit Judges.
John Cromling brought this suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., against his employer, The Pittsburgh and Lake Erie Railroad Company (the "Railroad" or the "Pittsburgh Railroad") to recover damages for injuries sustained in the course of his employment. The jury rendered a verdict in Cromling's favor in the sum of $18,000. It is Cromling's contention that the award was inadequate and that this was caused by the prejudicial actions of the trial court. This appeal is from an order of the court below denying Cromling's motion for a new trial*fn1
From the evidence the jury could have found that on January 7, 1960, while riding on the side of a box car in the course of his employment as brakeman for the Pittsburgh Railroad, Cromling was struck by a protruding gondola car on an adjoining track. He did not require a leave of absence at that time and continued to work until a pain in his back forced him from duty on December 2, 1960.He was still not working at the time the trial commenced in the court below on October 4, 1962.
The Railroad did not concede negligence, but the central issue at the trial was the nature and extent of the back injuries suffered by Cromling in the accident. Cromling submitted evidence that he was permanently disabled as a result of the accident. The Railroad attempted to show that Cromling's present condition was not wholly attributable to the accident but had an earlier origin.
Cromling has asserted three grounds why the judgment should be reversed and a new trial granted. Two grounds relate generally to efforts of the Pittsburgh Railroad to prove prior disability.The first of these concerns the admissibility of a letter.Before passing on this contention, certain uncontroverted background facts must be set out.
The Pittsburgh Railroad is a component part of the New York Central System ("Central"). Under the rules of Central, the Pittsburgh Railroad has authority to grant an employee an initial leave of absence up to ninety days. The power to extend original leaves is vested exclusively in Central, and if an extension is to be granted, Central requires a doctor's certificate detailing the nature of the injury to the individual involved. Central does not deal directly with the Pittsburgh Railroad's employee in regard to an extension. Instead, the Pittsburgh Railroad transmits to Central both the doctor's certificate and the extension request.
At the trial the Pittsburgh Railroad called as a witness Central's Director of Employee Benefits. Testifying with reference to Central's records which he had before him, this witness stated that Cromling was granted a leave of absence on August 7, 1943 because of a back injury and that the leave was extended twice for ninety day periods, to November 7, 1943 and again to February 7, 1944. The significance of the testimony set out below*fn2 for present purposes is that at some time in the period indicated, the exact date not being shown by the record, a physician's certificate became necessary under Central's rules to support Cromling's further abstention from work*fn3
Earlier in the proceedings, during cross-examination of Cromling by Pittsburgh Railroad's counsel, the following exchange had taken place.
"Q And back in August of '43, you entered Mercy Hospital under the care of Dr. Kuehner for a back condition.
"A Not for a back condition. Maybe for piles or something.
"Q And the time that you were taken off duty from August 7, 1943 to February of '44, you say that was for a back condition or not for a back condition?
"Q Mr. Cromling, I think we left this open: What was the reason that you were confined to Mercy Hospital back in 1943?
"Q Do you know if you were confined or not?
"Q Well, were you ever under the care of a Dr. Kuehner?
"Q And what was Dr. Kuehner treating you for?
"A Why, osteomellitis of the sternum coming from a broken jaw.
"Q Have you ever been under the care of Dr. Kuehner on more than one occasion?
"A Well, I had an irritated bowel one time that he took care of that I know of.
"Q Well, did he ever treat you in any way because of a back condition?
With these operative facts in mind, we turn to the issue presented. Cromling contends that the court below erred in admitting in evidence, over an objection as hearsay, a letter apparently dictated by Dr. Kuehner and signed by his secretary. The letter was identified by Central's Director of Employee Benefits as coming from Central's file on Cromling. No evidence was presented as to the mode of preparation of the letter. Neither was it shown that Dr. Kuehner was unable to testify. The court admitted the letter on the basis of the Federal Business Records Act, 28 U.S.C. § 1732 (a) set out hereinafter, conceiving that "the matter is so primary that it needs no citation to support it * * *."*fn4
The letter was described and read into evidence by Central's Director of Employee Benefits as follows: "It is on Dr. Kuehner's letterhead, dated October 12th, 1943, addressed to whom it may concern. 'This is to certify that Mr. John H. Cromling has been totally disabled and under my care since August 7, 1943. Because of the condition of his back, the date of his return to work is, as yet, indefinite. Respectfully, signed, Harold G. Kuehner, M.D.' It shows dictated by HGK - "
The letter was pertinent in two aspects. It served to impeach Cromling's earlier testimony that he had not been under Dr. Kuehner's care in 1943 for a back condition. It also served as positive evidence that Cromling had experienced a disabling back condition as far back as 1943*fn5
The letter is prima facie hearsay. It is relevant only if offered for the truth of its contents*fn6 The Pittsburgh Railroad supports the ruling below on the basis of the business records rule or in the alternative on ...