Ritts v. American Overseas Airlines, 97 F. Supp. 457 (S.D.N.Y. 1947)

George L. Trumbull, Mudge, Stern, Williams & Tucker, New York City, for plaintiffs.

Everett W. Bovard, New York City, for defendants.

LEIBELL, District Judge.

I have considered Mr. Trumbull's letter of the 24th and Mr. Bovard's answer thereto dated the 25th concerning the interpretation to be given to § 581 of Title 49 U.S. *458 C.A. After a study of the language of the section, I am satisfied that the second paragraph prohibits the admission in evidence of only the "reports of the former Air Safety Board or the Civil Aeronautics Board relating to any accident, or the investigation thereof" and that it does not bar the use of the testimony of a witness examined by the Board in the course of the investigation. The language of the second paragraph makes a clear distinction between "records and reports", mentioned in the first line of the paragraph and "report or reports" referred to in the sixth line. The reason for the prohibition in respect to the use of "reports" of the Board most likely is based on the fact that the report would contain findings and conclusions, the receipt of which at a trial might be prejudicial to a party who had no part in the investigation of the Board and no opportunity to be heard by the Board. That same problem would not be presented where a witness, being examined in the trial of the action or before the trial, is confronted with his testimony given at the investigation in order to refresh his recollection or impeach him as a witness.

For the foregoing reasons I have concluded that my prior ruling was erroneous and that the objection to the questions put by plaintiff's counsel to the witness, Captain Farabaugh, should be overruled. Counsel will proceed in accordance with this ruling.