Wilber D. Wiseman v. Arthur Reposa, A/K/A Arthur Raposa, 463 F.2d 226, 1st Cir. (1972)
Wilber D. Wiseman v. Arthur Reposa, A/K/A Arthur Raposa, 463 F.2d 226, 1st Cir. (1972)
Wilber D. Wiseman v. Arthur Reposa, A/K/A Arthur Raposa, 463 F.2d 226, 1st Cir. (1972)
2d 226
afterwards, he was able to avoid. At any rate, defendant was entitled to try.
2
It was also error not to permit defendant to explore, through the plaintiff, why
his original complaint alleged an accident on one date and a substitute
complaint added another. As a matter of pleading, the original complaint had
disappeared. As an admission against interest, it had not. See Kunglig
Jarnvagsstyrelsen v. Dexter & Carpenter, 2 Cir., 1929, 32 F.2d 195, 198; see
also Raulie v. United States, 10 Cir., 1968, 400 F.2d 487 and cases cited therein
at 526.
Defendant is entitled to a new trial. Possibly some of the other errors, if they
were such, will not appear again. We do say that we would prefer asking a
hypothetical question to an expert witness who was not consulted for treatment,
rather than using him to get a detailed history of the alleged accident before the
jury under the guise of a medical opinion. The effect of the method used in this
case is to introduce prior consistent statements, which would not otherwise be
an admissible procedure. See 4 Wigmore, Evidence Sec. 1124; McCormick,
Evidence Sec. 49, pp. 108-09. In addition, we rule that the parties can have no
valid objection to a six-man jury on a seaman's case.
The judgment is vacated. Costs on this appeal, since the errors were caused by
his palpably invalid objections, taxed against plaintiff regardless of the ultimate
outcome of the case. FRAP 39(a).
There was not involved, as the court thought, a matter of laying a foundation; a
foundation would not have been necessary. The court's position, although
mistaken, was comprehensible. The plaintiff's was not even that. Compare R.
218 with R. 533