tained the substance of notes which Mr. Steedle had made in his own handwriting on yellow sheets of paper at different times during the spring and summer of 1936 (R. 3686, 3687, 3710). The witness was somewhat uncertain as to the exact time when the notes were transferred to the typewritten pages, but was clear in her recollection that this occurred upon at least three occasions (R. 3692, 3702).

Although the witness became somewhat confused on cross-examination, I am satisfied that the above summary of her testimony is a fair statement of its meaning, and I find that a record of the incidents recited in the memorandum now offered in evidence was first written by Mr. Steedle on yellow sheets of paper at various times from May to October of 1936; that the contents of these sheets were transcribed in the form in which they are now offered either by Mr. Steedle himself or at his direction at least three different times during that period; and that the authenticity of the memorandum has been established.

The memorandum is offered as part of the res gestae. I find that it is not admissible on this ground. It is argued that the principal fact under consideration is whether Davis and Kaufman were attempting to influence Steedle and that the memorandum may be considered to be part of that transaction. The difficulty with this argument is that the statements made in the memorandum or the memorandum itself are not part of the transaction. The memorandum is rather in the nature of a narration by Mr. Steedle of facts such as statements made by Davis or by Kaufman, or by Steedle to them. These might be a part of the res gestae, but a memorandum made after the incidents had occurred is, in my opinion, a mere narration of events and not a part of the transaction itself.

There remains the much more difficult question whether the memorandum is admissible, either at common law or under any applicable statute, as an exception to the hearsay rule. The courts, even at common law, have admitted hearsay statements under some circumstances especially where the declarants were unavailable as witnesses and the facts were such as to afford a reasonable guarantee of the truthfulness of the statements. Dying declarations, statements against interest, declarations about family history, attestations of subscribing witnesses, statements of deceased persons under some circumstances, official statements, spontaneous exclamations, and regular entries in the course of business are instances of hearsay statements which are held admissible under the rule of the common law.

There are certain expressions in the opinions of the courts, both in England and America, which seem to suggest that statements of deceased persons concerning relevant facts, if fully authenticated, should be received in evidence from the necessity of the case wherever the circumstances are such as to show that the declarant was disinterested, that the declaration was made before the dispute involved in the litigation had arisen, and that the declarant had peculiar means of knowledge of the subject to which he referred. See, for example, the remarks of Jessel, M. R., in Sugden v. St. Leonards, L. R. 1 P. D. 154 (cited in Wigmore, 3d Edition, Vol. V, Sec. 1420, and a dictum of a similar nature in Chaffee & Co. v. United States, 18 Wallace 516, at p. 541).

Mr. Wigmore expresses the opinion that the rule should be that all statements of deceased persons should be admitted as evidence of facts stated by them, in view of the necessity of the case, “leaving the application of the rule to the trial Court" (Wigmore, 3d Edition, Vol. V. Sec. 1427). He also points out that some states have adopted this rule by statute (Wigmore, 3d Edition, Vol. V, Sec. 1576). Such a rule has been recommended by a committee of the American Bar Association and by the American Law Institute, which, in its Code of Evidence just published, provides in Rule 503:

"Evidence of a hearsay declaration is admissible if the judge finds that the declarant

"(a) is unavailable as a witness.

This rule is recognized by its authors to be in advance of the law as at present laid down by the decisions of the courts, but there are some cases which come very close to the case now under discussion.

In Nicholls v. Webb, 8 Wheaton 326, it was held that the books of a notary public were admissible in evidence after his decease to prove a demand of payment and notice of nonpayment of a promissory note. The court held, p. 337:

"We think it a safe principle, that memorandums made by a person in the ordinary course of his business, of acts or matters which his duty in such business requires him to do for others, in case of his death, are admissible evidence of the acts and matters so done. It is, of course, liable to be

impugned by other evidence; and to be encountered by an presumptions of facts which diminish its credibility or certainty. A fortiori we think the acts of a public officer, like a notary public, admissible, although they may not be strictly official, if they are according to the customary business of his office, since he acts as a sworn officer, and is clothed with public authority and confidence."

In LeBrun v. Boston & Maine Railroad, 83 N. H. 293, one question involved was the extent and nature of the plaintiff's injuries. The defendant offered in evidence the report of its surgeon (since deceased) made at the time he examined the plaintiff, containing certain statements which were inconsistent with the plaintiff's testimony. The court admitted the report, saying in the course of its opinion (pp. 299, 300):

*

"To qualify an entry under the exception to the hearsay rule there must be a necessity for its admission as evidence, and the circumstances under which it was made must be such as to guarantee that the statements therein are fairly trustworthy. Roberts v. Company, 78 N. H. 491, 494. The circumstantial trustworthiness of the report is supported by the fact that the examination, and the entry thereof, were made in the regular course of the business he had undertaken to perform and for the accuracy and truthfulness of which he assumed responsibility, there being an absence of evidence of any controlling motive to misrepresent.

"The fact that the record does not disclose the number and frequency of such entries by the defendant's surgeons in general, or by Dr. Stillings in particular, does not demonstrate the unreliability of the entry. The degree of regularity goes only to its weight as evidence in support of the trustworthiness of the recorded statements. The question of the fulfillment of the requirement of regularity presented a question in the first instance for the trial court."

In Kennedy v. Doyle, 92 Mass. (10 Allen) 161, the court held admissible a church record of baptism kept by a priest, who had since died, stating near the end of its opinion, p. 167:

"In the United States, the law is well settled that an entry made by a person in the ordinary course of his business or vocation, with no interest to misrepresent, before any controversy or question has arisen, and in a book produced from the proper custody, is competent evidence, after his death, of the facts thus recorded." Citing further decisions on similar points.

In Leland v. Cameron et al., 31 N. Y. 115, an entry made by an attorney who had since died, showing the issue on a fi. fa. on a certain date was admitted. The court said, p. 121:

"The rule of evidence applicable to entries made by deceased persons, is thus stated in 1 C. & H., note 675: that all entries or memoranda made in their course of business or duty by any one who would, at the time, have been a competent witness of the fact which he registers, are competent." Citing certain instances.

In Fisher et al. v. The Mayor et al., 67 N. Y. (Court of Appeals) 73, the court admitted an entry made by an attorney, since deceased, as proof of the confirmation of a report assessing damages for the taking of certain property, where the order of confirmation could not be found, saying:

*

"Entries made by third persons in the usual course of professional employment contemporaneously with the transaction recorded, are admissible to prove the fact stated, after the death of the person by whom the entry was made. There is no absolute duty resting upon an attorney to make such an entry, but this is not essential; it is sufficient if the entry was the natural concomitant of the transaction to which it relates, and usually accompanies it."

In Jameson v. First Savings Bank & Trust Co., 103 A. L. R. 1492 (New Mexico, 55 P. (2d) 743), the court admitted an entry in a memorandum book kept by a lawyer, since deceased, in which it was his custom to make entries of important matters of business happening during the day, for the purpose of proving that he

had by telephone conversation received authority to execute an assignment for a client. There is an annotation following the report of this case, 103 A. L. R. 1501, reviewing the cases on this subject which need not be further discussed. The tendency of the cases is clearly toward greater liberality in the admission of the declarations of deceased persons where the declarations are made under such circumstances as to indicate that they are trustworthy, this safeguard being considered a substitute in some measure for the right to cross-examine. The fact that a declaration is made in written form in the regular course of the business or professional work of the declarant is considered to be a sufficient test of its reliability where no element appears suggesting an intention or motive to deceive.

In the case before us it is clear that whether or not the memorandum was made in the course of Mr. Steedle's professional work (a point to be later discussed) he was disinterested in the present investigation as it was not begun until after his death It might be contended with some force that making a record of the incidents referred to was against Mr. Steedle's interest in view of the fact that he did not disqualify himself but continued to act as a Referee in Bankruptcy in the case of William Fox. If his rulings had been favorable to Mr. Fox, the memorandum might have led to the conclusion that he had been influenced by the acts of Messrs. Davis and Kaufman, whereas if his rulings were principally against Mr. Fox, as they were, a question might be raised as to whether he had not been unduly influenced against the bankruptcy by the incidents recorded in the memorandum. Considerations of this character have been held to be such interest as may affect the admissibility of a declarant's statement: Hines v. Com., 136 Va. 728, 117 S. E. 843; Brennan v. State, 151 Md. 265, 134 Atl. 149. See also Restatement, Evidence, Rule 509 (1).

It is unnecessary to decide whether the authorities above cited would sustain the admissibility of the memorandum under the rules of the common law, as main reliance has been placed upon statutes and rules of court which are clearly intended to extend further the rules of evidence.

The Federal statute, 28 U. S. C. A. § 695, reads as follows:

"In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of said act, transaction, occurrence, or event, if it shall appear that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term 'business' shall include business, profession, occupation, and calling of every kind. (Act of June 20, 1936, c. 640, § 1, 49 Stat. 1561.)"

Concerning the rules of evidence to be applied in the Federal courts, the Rules -of Civil Procedure provide, in Rule 43a, as follows:

"All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made." The Pennsylvania statute reads as follows:

"A record of an act, condition, or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission." (Act of May 4, 1939, P. L. 42, § 2 (28 P. S. § 91b).)

Both statutes provide that the "record" (to use the language of the Pennsylvania act) or the "memorandum or record" (to quote the Federal act) must have been made in the regular course of business, but the Pennsylvania Act is more liberal in omitting the requirement that it must have been the regular course of such business to make such a memorandum or record.

The word "business" is defined in the Pennsylvania Act to include—

"every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not." (Act of May 4, 1939, P. L. 42, § 1 (28 P. S. § 91a).)

The question then is presented whether the memorandum was made by Referee Steedle in the "regular course" of his profession as a Referee in Bankruptcy "at or near the time" of the incidents which it records and whether "the sources of information, method, and time of preparation were such as to justify its admission."

I find that the sources of information, method, and time of preparation were such as to justify the admission of the memorandum if it was made in the regular course of business within the meaning of the Act. While the dates when Mr. Steedle first recorded the incidents mentioned in the memorandum were not definitely fixed by the testimony, I do not consider this as important as it would be in a case where the record consisted of entries of figures or dates which it would be more difficult to remember with accuracy even for a short time. In substance, the memorandum consists of a recital of various incidents of which the exact dates are not very material and the yellow sheets were written and the memorandum was made at different times between May 2nd and October 4th, the period during which all the incidents are alleged to have occurred. I do not think the time which may have elapsed after the happening of the alleged events before Mr. Steedle made a record of them casts sufficient doubt upon the accuracy of his recollection to make the statement inadmissible under the statute.

We come then to the final question, was the memorandum made in the regular course of Mr. Steedle's profession as a Referee in Bankruptcy?

Counsel on both sides of this controversy have discussed Hoffman v. Palmer et al., 129 F. (2d) 976, a case construing the Federal statute, but it does not help us very much in the solution of this problem.

The court excluded the written report of an engineer who had been involved in a railway accident and was deceased at the time of the trial because very evidently his account would not be disinterested. It was assumed that the report was made in the course of business. There was a dissent by one member of the court on the ground that under the Federal statute the statement of a deceased person made in the regular course of business is admissible whether the witness was disinterested or otherwise.

Counsel have also cited Freedman v. The Mutual Life Insurance Company of New York, 342 Pa. 404, a case construing the Pennsylvania statute. In this case, the court admitted in evidence as documentary proof the written records of a physician, including, among other things, statements made to him by a deceased insured, although the physician was alive and a witness at the trial. The court held the evidence admissible at common law but also said if any doubt existed it was removed by the statute.

The court did not discuss, for it had no occasion to do so, the distinction between the Federal statute and the Pennsylvania statute, but the significance of the omission in the Pennsylvania statute is not to be ignored. Whereas the Federal statute requires not only that the record shall be made in the regular course of business, but that it shall have been the regular course of that business for such a record to be made, the Pennsylvania statute omits the latter requirement altogether. The Pennsylvania Act is a copy of the uniform act prepared by a Committee of the American Bar Association. It cannot be assumed that there was no reason for the omission of the clause referred to, particularly as the Pennsylvania Act was enacted later than the Federal statute. It seems clear that the intention of the Pennsylvania legislature was to liberalize further the rules of evidence by permitting a record to be admitted if it was made in the regular course of a business or profession, even though it was not usual or customary for such a record to be made in that particular business or profession. The argument that the Steedle memorandum is inadmissible, because it has not been shown that it was the regular course of business of a Referee in Bankruptcy to make such memoranda, must therefore be rejected.

It is argued, however, that the memorandum was not made in the regular course of Mr. Steedle's professional work because it relates to the actions of others rather than to anything which he did as a Referee and because, it is argued, the memorandum itself is "not consistent with a regular systematic practice of making entries recording contemporaneously events as they happened." The admission of a "record" under the Act, however, does not appear to be limited to cases where there is a "regular systematic practice." It evidently contemplates a record of a single "act, condition, or event" if made in the regular course of business and there is no requirement of a systematic practice of recording such or any events.

The question is one of unusual difficulty for I have found no record of any other instance where a judicial or quasi-judicial officer has had occasion to record acts which he believed were intended to corrupt his official action. Where he does so, however, I am unable to conclude that the record is not made in the course of his profession as a judicial officer. It certainly relates to his judicial work. Whether it is made in the regular course of his profession depends upon the meaning of the word "regular" as used in the statute. I am of opinion that it means no more than that the record should have been made during the progress of declarant's professional work and at times reasonably related to the happening of the events recorded.

I am mindful of the statement of the court in LeBrun v. Boston & Maine Railroad, supra, in which, referring to the record admitted in that case, it said:

"The degree of regularity goes only to its weight as evidence in support of the trustworthiness of the recorded statements. The question of the fulfillment of the requirement of regularity presented a question in the first instance for the trial court."

The memorandum in this case was not made all at one time. The notes which Mr. Steedle originally made in longhand on yellow sheets of paper and the contents of which were subsequently incorporated into the memorandum were made at various times reasonably related to the dates of the events themselves and the memorandum was made during the period of the happening of these events upon at least three different occasions. It was not made solely for the personal satisfaction of Mr. Steedle but because he was evidently disturbed by what he thought were efforts to obstruct justice. The care which he exercised in the preparation and custody of the memorandum indicates that he considered it to be a part of his official duty to record the facts stated therein. I conclude that the memorandum was made by Mr. Steedle in the regular course of his profession as a Referee in Bankruptcy.

The Rule of Civil Procedure quoted above (Rules of Civil Procedure 43a) provides in part: "in any case the statute or rule which favors the reception of the evidence governs." While this provision of the rule may not be intended further to enlarge the rules of evidence, it is indicative of the attitude of both rule makers and courts and suggests that if there is a doubt, it should be resolved in favor of the admissibility of evidence.

I overrule the objection and admit the memorandum in evidence.

I am the more willing to adopt this course because the memorandum refers to acts and statements of living persons, particularly Mr. Kaufman and Judge Davis, and to incidents which may be disproved, if the statements concerning them are untrue, by calling witnesses who are available. Kaufman and Davis have both testified and have admitted in part and denied in part the incidents mentioned in the memorandum. They are still available and may be recalled as witnesses if counsel believe the statements contained in the memorandum can be further refuted. Copies of the memorandum have been in the possession of all counsel for several weeks.

In making this ruling I decide nothing concerning the relevancy of the statements contained in the memorandum. T. R. WHITE, Master.

JANUARY 29, 1943.

EXHIBIT No. 160

Mr. COLEMAN ROSENBERGER,

JENKINS PETROLEUM PROCESS CO.,
Chicago, Ill., March 9, 1944.

Subcommittee on War Mobilization, Committee on Military Affairs,

United States Senate, Washington, D. C.

DEAR MR. ROSENBERGER: Your letter of March 1, 1944, enclosing galley proof of an exhibit filed with the Subcommittee on War Mobilization of the Committee on