219 F.

2d 422

Grace E. PERKINS, Administratrix of the Estate of Roy W.

Perkins, Plaintiff-Appellant,
v.
UNITED TRANSPORTATION COMPANY and Taddeo Forte,
Defendants-appellees.
No. 75, Docket 23170.

United States Court of Appeals, Second Circuit.

Argued Dec. 6, 1954.
Decided Jan. 24, 1955.

Washton & Vogt, New London, Conn. (A.A. Washton, New London,
Conn., of counsel), for plaintiff-appellant.
Philip R. Shiff, New Haven, Conn., for defendants-appellees.
Before CLARK, Chief Judge, and MEDINA and HARLAN, Circuit
Judges.
HARLAN, Circuit Judge.

Roy W. Perkins, a youth of 19, was killed on July 21, 1952, in an automobile
accident involving a collision between a panel truck driven by Perkins and a
tractor-trailer truck owned by United Transportation Company and driven by its
employee, Taddeo Forte.

The accident took place about 10 P.M. at the intersection of Route 84 (on
which the United truck was proceeding in a westerly direction) and Old Route
84 (on which Perkins was driving in a southeasterly direction) in the town of
Groton, Conn. Except for the two drivers there were no eyewitnesses to the
accident.

Perkins' mother as Administratrix of his estate sued United and Forte for
negligence, the suit being tried in the United States District Court for
Connecticut which had jurisdiction because of diversity of citizenship and the

amount involved. This appeal by the Administratrix is from a judgment of

dismissal entered upon a verdict of a jury in favor of the defendants.
4

The sole ground of appeal is that the trial Court, over the objection of the
plaintiff, admitted testimony from three police officers-- none of whom, except
for one who surveyed the scene of the collision, had any direct knowledge of
this accident-- that Perkins had the reputation of being a bad driver. This
testimony was admitted on the issue of damages, Judge Smith instructing the
jury when the testimony was going in and thrice in his charge that the jury was
not to consider it as having any bearing on the question of who was at fault in
the accident.

The admissibility of this evidence is to be judged by the most lenient of the

following rules: (1) any rule prescribed by United States statute, (2) the rule
followed by Connecticut courts of general jurisdiction, (3) the rule applied in
suits in equity in United States courts before the adoption of the Federal Rules
of Civil Procedure. Fed.R.Civ.P. 43(a), 28 U.S.C.A. No United States statute
governs this situation. And we find nothing to indicate that the other two
possible rules give a different result. Connecticut appears to follow the general
rule governing the admissibility of this type of evidence in this sort of case.
That rule simply is that where, as in Connecticut, damages for wrongful death
include lost earnings, the determination of the decedent's earning capacity shall
be made 'with due allowance for the effect which the ordinary vicissitudes of
life might have had upon his continued enjoyment of those capacities * * *',
Chase v. Fitzgerald, 1946, 132 Conn. 461, 45 A.2d 789, 793, 163 A.L.R. 247;
hence any evidence which reasonably bears upon the probability of the
decedent, had he lived, engaging in gainful work or upon the likely extent of his
earning power is admissible on the issue of the amount of recoverable damages.
This includes evidence of reputation, for whether the decedent had a good or
bad reputation in his trade or calling would in some instances bear upon his
earning power and therefore, in a proper case, such evidence is relevant on the
issue of lost earnings. Wigmore, Evidence 75 (3rd Ed. 1940). Jacques v.
Bridgeport Horse R. Co., 1874, 41 Conn. 61. But in an action of this character
such evidence is not admissible on the issue of fault, as Judge Smith properly
ruled. This appears to be the law of Connecticut. See Gannon v. Sisk, 1921, 95
Conn. 639, 643, 112 A. 697. And no federal case has been presented to us
which indicates that another rule prevailed in equity suits in the federal courts
before the adoption of the Federal Rules of Civil Procedure.

While there is no absolute rule excluding reputation evidence on the issue of

damages in a negligence case, neither is there any absolute rule admitting it for
such purpose. As with many kinds of evidence, the admissibility of this sort of

evidence must turn on the facts of the particular case. And in this instance we
think the evidence was inadmissible because in the circumstances of this case
(1) it had no real probative value on the issue of the decedent's loss of earning
power and (2) to the extent the evidence might be said rationally to bear on that
issue its value was so far eclipsed by the risk that the jury might consider the
evidence on the issue of fault as to require its total exclusion.
7

Jacques v. Bridgeport Horse Railroad Co., supra-- the only Connecticut case
which has been called to our attention involving this question-- illustrates the
type of situation in which such evidence is admissible. There a physician sued a
railroad company for injuries arising out of the negligent maintenance of its
tracks and it was held permissible for the defendant to show that the plaintiff
was engaged in the unlawful practice of medicine and that he had that
reputation, the Court stating, 41 Conn. 67: 'As the plaintiff sought to recover
damages on account of being disabled from practicing his profession, his
reputation, as to the lawfulness or unlawfulness of his practice, became a proper
subject of inquiry. The value of that practice must have depended very largely
on that reputation. If his practice was unlawful, no matter how lucrative it
might have been, the loss of it would lay no foundation for the recovery of
damages. The questions put to the plaintiff, and also to the other witnesses, may
not have been the best mode which could have been adopted for reaching the
truth; still we think the questions should not have been excluded. The plaintiff's
claim, in effect, put his professional reputation in issue and made these
questions proper. The answers to them would tend to throw light upon the
subject which the defendants had a right, under the circumstances, to
investigate'.

While it is not altogether clear whether the Connecticut court would have
regarded the reputation testimony as being admissible, apart from the alleged
illegality of the plaintiff's practice, we shall accept its holding as going that far.
Even on that basis the case is far removed from the present one. In Jacques the
plaintiff's claim for lost earnings concerned his inability to carry on a particular
profession in which he was already established, and one in which his earning
power was intimately related to his reputation in his calling. In the present case
this element of damages concerned the decedent's loss of general earning
power, since it cannot be assumed that a youth of 19 will necessarily continue
to earn his living by truck driving. In particular there was evidence that the
decedent had not worked steadily as a truck driver, that he had served
honorably in the Navy, and that he was interested in agriculture and animal
husbandry-- in neither of which pursuits, if later resumed or engaged in, could it
reasonably be expected that the decedent's reputation as a driver of motor
vehicles would affect his earning power. Moreover, if we are to assume that the

decedent would eventually have established himself as a truck driver, it is

difficult to see how his youthful reputation in this respect might be expected to
affect his ability to earn as little as $40 a week-- the order of his past earnings in
such employment. In such a setting we think this evidence had no tendency
towards proving anything as to the decedent's loss of earnings.
9

But even if we were to regard the evidence as of some probative value, it was
much too slight in the circumstances of this case to justify its admission against
the danger-- recognized by Judge Smith in his memorandum denying the
plaintiff's motion for a new trial, 14 F.R.D. 152,-- that the jury would be
influenced by the evidence, even though unconsciously, in determining where
the fault of the accident lay. The only testimony from an eyewitness to the
accident was that of Forte, the driver of United's truck. While that testimony
has not been transcribed as part of the trial minutes, and so is not available to
us, in the nature of things it is apparent that the issue of fault was in any event a
close one. Forte, as an employee of United and as a defendant himself, was an
interested witness. And the only other testimony as to the issue of fault was that
of a police officer who gave circumstantial evidence as to the accident,
consisting of a description of what he found upon arrival at the scene, from
which different inferences were permissible. Further, it should be observed that
this reputation testimony, unlike that in the Jacques case, related to the very
type of activity that was a prime issue in this case-- the decedent's skill and
prudence in operating his truck on the night of the accident. In this posture of
affairs the danger that the decedent's reputation for bad driving might be
regarded by the jury as tipping the scales in favor of the defendants on the issue
of fault was such that the evidence should have been excluded.

10

Although we have treated all of this testimony as going to the decedent's

'reputation' as a driver of motor vehicles, there is at least grave doubt whether
that of Officers Dupont and Larizzo may properly be so characterized.
Objections to much of their testimony were properly sustained because it
related merely to the witness' observations of the decedent's driving on other
specific occasions, rather than to his general reputation for driving, 1 and
although Judge Smith conscientiously tried to keep the testimony within the
bounds of reputation evidence, much of what was permitted to stand was
objectionable, or at least on the borderline, from the same standpoint.2 The
over-all effect of this testimony, remembering that the excluded questions and
answers took place in the presence of the jury, added up to very little more than
that these two police officers had seen the decedent driving too fast on a
number of prior occasions and that he had a police record for bad driving.
Consequently, even if reputation testimony were admissible here on the issue of
fault, the testimony of these two officers might well be regarded as coming

within the Connecticut rule excluding similar conduct on other occasions as

evidence of the character of the particular conduct in issue. See Ross v. City of
Stamford, 1914, 88 Conn. 260, 91 A. 201; Black v. Hunt, 1921, 96 Conn. 663,
115 A. 429.
11

On the record before us we cannot regard the error in admitting the testimony
of the three police officers as harmless, nor treat it as cured by the Court's
instructions that the jury should not consider the testimony on the question of
liability. In so holding, we impute to the jury no lack of intelligence or
conscientiousness in attempting to follow the instructions of the Court, nor do
we apply a more rigorous standard than has Connecticut. In Jacques, supra, the
Connecticut Supreme Court of Errors reversed a finding of negligence partly on
the ground that evidence of other similar acts of negligence by the defendant
has been improperly admitted, even though the case had been tried to the court
without a jury, and even though such evidence had been stricken at the end of
the case and the court had expressly disclaimed giving it any heed in reaching
its decision.

12

We conclude that the appellant Administratrix is entitled to a new trial,

untrammelled by this inadmissible evidence.

13

Reversed for a new trial.

14

CLARK, Chief Judge (dissenting).

15

This, I fear, is another instance of a seemingly hard case making bad law. I say
'seemingly,' as on the surface this appeared to be a situation where a mother was
denied recovery for the death of her son because of an atmosphere created at
the trial raising doubts as to the son's general driving habits. For the parties in a
rather natural attempt to limit the papers on appeal-- now unnecessary under our
new rule for appeal on the original papers-- gave us little more than the
evidence rulings objected to below.1 But an examination of the trial court
records gives the case a different aspect, showing, as it does, a very thorough
five-day trial with extensive testimony, among which was a two-day
examination and cross-examination of the individual defendant. And while not
all the testimony was transcribed, enough was available to make clear the
demonstration made to the jury below, from the very real evidence of the tire
marks on the highway and the damaged portions of the colliding vehicles, that
Perkins had driven through a stop sign onto the through highway upon which
defendant Forte was driving his truck and ahead of Forte, and that the only
reasonable ground for recovery was a last clear chance. But further, the severe

damage to the left front of Perkins' vehicle and the right front of Forte's
suggests difficulty in ascribing a last chance to Forte to avoid the collision.
Hence I do not believe the case can be considered a close one. I advert to these
facts not as settling the question of evidence here involved, but as eliminating
the otherwise moving humanitarian basis for reversal. I have long been one of
those who have been convinced that the problem of award for automobile
accident victims was not met at all adequately by application of doctrines of
common-law negligence.2 But until this law is changed by the proper
authorities I feel that we must accept it, and should not warp or distort our rules
of evidence in an obviously vain attempt to ameliorate its harshness.
16

The logical basis for the trial court's rulings seems soundly buttressed in state
law, as well as in the general law of evidence. In Chase v. Fitzgerald, 132
Conn. 461, 45 A.2d 789, 792, 163 A.L.R. 247, it was held that the measure of
damages in wrongful death actions was compensation for destruction of earning
capacity, and that earning capacity could be shown by past wages and by
'general experience as a wage earner and * * * qualifications for conducting a
gainful occupation.' See also McManus v. Jarvis, 128 Conn. 707, 22 A.2d 857;
Federman v. City of Stamford, 118 Conn. 427, 172 A. 853; Hayes v. Morris &
Co., 98 Conn. 603, 119 A. 901; Jacques v. Bridgeport Horse R. Co., 41 Conn.
61, 19 Am.Rep. 483; and Comstock v. Connecticut R. & Lighting Co., 77
Conn. 65, 58 A. 465, 466, where Judge Simeon E. Baldwin said that the
decedent's 'general qualities and his qualifications for any particular business in
which he may be engaged may be described by those who know him * * *.'
Thus there is no doubt that under Connecticut law the challenged testimony was
of some relevance. See also 1 Wigmore on Evidence 75 (3d Ed.1940).3 Once
this premise is established, Connecticut law is furthermore clear that the
possible remoteness of the evidence was a question peculiarly within the
province of the trial judge. Saporiti v. Austin A. Chambers Co., 134 Conn. 476,
58 A.2d 387; State v. Isaacson, 114 Conn. 567, 159 A. 483; Ruerat v. Stevens,
113 Conn. 333, 155 A. 219.4

17

I can agree with essentially all my brethren have said in suggesting the rather
weak character of this evidence as it appeared when the case had been closed,
though not necessarily when it was proffered. But what they say lends
emphasis to the point that I am making, since it is so decidedly directed to the
weight, rather than the rational character, of the evidence. But weight is
typically a matter to be tested by the trier of facts and is not a ground in itself
for finding irrelevance. This ruling suggests interesting questions as to how far
appellate eclecticism should go. Since doubt is suggested as to the weight here,
with respect to a boy 19 years old getting $40 a week, we are left to conclude
that greater age and greater wages would lend a support to Judge Smith's ruling

that it does not now have. Thus, would the evidence be admissible if it
concerned a man 40 years of age earning $60 a week? Just where is the line of
adequate weight met and passed? And-- since I doubt that the state courts will
wish to follow this ruling-- how are Judge Smith and Judge Anderson going to
decide or to know how to decide the next case of this general type they get? It
may almost be thought that the more bite the evidence has, the less admissible
may it eventually prove.
18

Such pertinent questions are particularly indicated when appellate interference

means an upsetting for restoration and long retrial in a crowded docket of a case
apparently well tried by an experienced trial judge. So by way of summary I
suggest that this ruling, however humanitarian it may appear, seems to me to
violate three principles of proper approach to appellate supervision of trial
activities. First, it reverses the usual attitude expressly demanded by F.R.C.P.,
rule 43(a), and indeed often reiterated by us by way of advice to trial judges of
the general trend toward admissibility of all relevant evidence and the
resolution of doubts that way. See, e.g., United States v. White, 2 Cir., 124 F.2d
181, 186; Dundom v. New York Cent. R. Co., 2 Cir., 145 F.2d 711, 713; Reck
v. Pacific-Atlantic S.S. Co., 2 Cir., 180 F.2d 866, 869-870, and cases there
cited. Second, it interferes with the informed control of the case by the trial
judge upon whom responsibility for proper conduct of the case must impinge
much more than upon any appellate judge. And third, despite my brothers'
disclaimer, it does reflect upon the highly intelligent juries so customary in this
district. Of course I appreciate a current attitude to view the jury as a necessary
palladium of our liberties, while never trusting it to exercise any common sense
or even intelligence. But I see no reason to conclude that the jury here either did
not or could not understand or perhaps willfully violated Judge Smith's clearcut and often reiterated admonitions as to the necessary and proper limits on the
use of this testimony.

19

Let me reiterate that it is not the loss of the one minor item of evidence to
which I take exception; it is rather the whole approach to the important
question of jury trials in our congested modern metropolitan courts. Had the
judge excluded the evidence, I think we could have upheld his hand as a proper
discretion against collateral voyages. But after most extensive consideration he
acted otherwise. And now we send the case back for a week's retrial for the
express purpose of putting blinders on the triers.

Objections to the following questions and answers were sustained:

Police Officer Dupont:

'Q. Now, Officer, will you tell the ladies and gentlemen of the Jury what you
have observed about Mr. Roy Perkins? A. Well, on June the 3rd, 1952 at 11:05
a.m. in the morning I observed Roy Wallace Perkins driving at a very fast rate
of speed-- * * *
'Q. Now, Officer, would you be good enough to tell the ladies and gentlemen of
the Jury what you have observed about Mr. Perkins' driving habits? A. On June
3, 1952, 11:05 a.m. I observed Roy Wallace Perkins driving at a fast rate of
speed in a 25 mile per hour zone. Upon stopping him I smelled alcoholic liquor
on his breath. Ten or twelve days after, or two weeks after, as a police officer I
worked night clubs in the City of New London, and Roy Perkins came into a
night club which is the Victory Restaurant on Bank Street, and knowing the
boy's age I ordered him out of there because no minors are allowed in there.
Now, on July 4, 1952 at 3:30 p.m. I arrested-Mr. Washton: I object to that Your Honor.
'The Court: Sustained.
'Q. You see, Officer, all I want you to tell us is what opinion you formed from
your observation of him as to his character, his character as a driver of a motor
vehicle. A. As a driver of a motor vehicle he drove pretty recklessly. * * *
'Q. Based upon your own observations and your discussions with others in
regard to Roy Perkins what is your opinion as to his reputation as a driver of a
motor vehicle? A. As a driver of a motor vehicle he drove awful recklessly.'
2

The following testimony was permitted to stand:

Police Officer Dupont:
'Q. Officer Dupont, were you acquainted with Roy W. Perkins? A. Yes.
'Q. Prior to July 21, 1952? A. Yes, sir.
'Q. For how long a period of time have you known him? A. The first
acquaintance I had with him was June, the 3rd. I have some memos here from
the records of the New London Department. * * *
'Q. I want you to confine your testimony to your knowledge of him and his
reputation as a driver of a motor vehicle. A. He was a very reckless driver. * * *
'Q. Are you acquainted with his reputation as a driver in the community in New
London? A. I am.

'Q. And what is your acquaintance? What is your opinion of his reputation as a
driver based upon, Officer? A. My observation of him.
'Q. And have you talked with other officers with reference to him? A. Yes. * *
*
'A. I have the motor vehicle record. * * *
'A. (continuing) Yes, I have spoken to other officers. We had his number and
his registration number in the Police Station. * * *
'Q. In the community in which you observed his operation as a motor vehicle
operator what is your testimony as to his reputation? A. He was a fast driver, a
reckless driver. * * *
'Q. Between June 3 of '52 and July 21 of '52 how many different times did you
observe him? A. I observed him four different times that I have had
conversation with him.
'Q. You had conversation with him on those particular occasions? A. Four
different occasions.
'Q. And those conversations related to his driving? A. They were related to his
driving.
'Q. The other one was with reference to what? A. To the night club.'
Police Officer Larizzo:
'Q. And when prior to July 21, 1952 did you first make his (Perkins')
acquaintance? * * *
'Q. Would you be good enough to answer the question? A. Yes, sir. My first
contact with Roy Perkins was either in the latter part of '51 or early part of '52. I
can't recall the exact date. I was sent on a complaint to his home--* * *
'Q. Did you have occasion to observe him in his conduct as an operator of a
motor vehicle on the highway of the State? A. I did, sir. * * *
'Q. And in addition to your own observations have you had occasion to talk
with other police officers with reference to Roy W. Perkins? * * *
'Q. Have you? A. Yes, sir, I have.
'Q. And based upon your own observations and what you have learned

concerning his reputation will you state to the members of the Jury and to His
Honor what your knowledge is of his reputation as a driver? A. He was a poor
driver.'
1

The parties last June entered into a stipulation as to the contents of the record
on appeal-- which was then printed; but this was hardly intended to, nor could
it, exclude other details below from our consideration. See our present Rule
11(b) and F.R. 75(h)

See Report by the Committee to Study Compensation for Automobile

Accidents to the Columbia University Council for Research in the Social
Sciences (Feb. 1, 1932), in which I participated; and see also Grad, Recent
Developments in Automobile Accident Compensation, 50 Col.L.Rev. 300
(1950); James & Law, Compensation for Auto Accident Victims: A Story of
Too Little and Too Late, 26 Conn.B.J. 70 (1952)

Holding further that 'where injury to earning capacity is involved, the actual
character may be material, and conceivably also the reputed character for skill
and the like,' thus making inappropriate the criticisms of the detailed and
subordinate rulings as in note 2, supra. Cases such as Black v. Hunt, 96 Conn.
663, 115 A. 429, and Ross v. City of Stamford, 88 Conn. 260, 91 A. 201,
concern the issue of negligence, not that of earning capacity

In view of this principle it seems unfortunate that Judge Smith's careful and
balanced approach to his decision on the plaintiff's motion for a new trial
should be somehow taken as an admission against interest on his part