DeSantis v. Dobbins
Opinion
USCA1 Opinion
May 11, 1994
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-1688
EGIDIO DE SANTIS AS HE IS ADMINISTRATOR
OF THE ESTATE OF GIORGIO DE SANTIS,
Plaintiff, Appellant,
v.
THEODORE F. DOBBINS, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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David P. Angueira, with whom John H. Perten, William F. Ryan, and
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Bowditch & Dewey were on brief for appellant.
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Thomas M. Elcock, with whom Lawrence F. Boyle and Morrison,
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Mahoney & Miller were on brief for appellees.
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BOWNES, Senior Circuit Judge. At about 3:30 a.m.
BOWNES, Senior Circuit Judge.
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on the morning of September 19, 1991, there was a collision
at the intersection of Arlington and Stuart Streets in Boston
between an automobile driven by Giorgio DeSantis and a
newspaper delivery truck driven by Theodore Dobbins.
DeSantis was killed in the accident. At the time of his
death, DeSantis, a student, was an Italian citizen living in
West Roxbury, Massachusetts.
A diversity action was subsequently brought in the
federal district court of Massachusetts by Egidio DeSantis,
an Italian citizen, as administrator of his son Giorgio's
estate. Named as defendants were: Dobbins, driver of the
truck; News Group Boston, Inc. d/b/a The Boston Herald,
lessee of the truck; and Lily Transportation Corporation,
lessor and owner of the truck.1 The case was tried to a
jury and it returned a verdict finding that neither Dobbins
nor the Herald were liable. This appeal followed.
Plaintiff-appellant raises two issues: (1) whether
the trial court erred in excluding certain testimony and
proffered evidence; and (2) whether the trial court erred in
omitting a requested jury instruction. We affirm.
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1. On the fifth day of trial plaintiff voluntarily dismissed
his claim against Lily.
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2
THE EXCLUSIONARY RULINGS
THE EXCLUSIONARY RULINGS
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Plaintiff agrees, as he must, that the admission
and exclusion of evidence are reviewed under an abuse of
discretion standard. American Title Ins. Co. v. East West
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Financial, 16 F.3d 459, 460 (1st Cir. 1994); United States v.
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Spinosa, 982 F.2d 620, 629 (1st Cir. 1992); DCPB, Inc. v.
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City of Lebanon, 957 F.2d 913, 918 (1st Cir. 1992).
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A. Exclusion of Certain Testimony of Henry Moore
A. Exclusion of Certain Testimony of Henry Moore
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Henry Moore was the first witness at trial. He was
the route fleet supervisor for the Herald. Plaintiff
attempted to introduce a deposition statement by Moore that
he told Dobbins, after the accident, that the speed at which
Dobbins claimed to be going when he entered the intersection,
20-25 miles per hour, was "excessive or unsafe."
Plaintiff argues strenuously here, as he did below,
that the statement was admissible as a vicarious admission
against the Herald. There can be no doubt that the primary
purpose of seeking the admission of the statement was to show
that Dobbins was travelling at an "excessive or unsafe" speed
just before the accident. This does not make the statement
inadmissible, but it does add another ingredient to the
admissibility mix.
We reproduce part of the colloquy between
plaintiff's counsel and the court on the admissibility of
Moore's statement:
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MR. ANGUEIRA: Dobbins' evidence is
that he was traveling at 20 to 25 miles
per hour, and that's what the defendants'
experts are prepared to say, also. So,
assuming that to be true, Mr. Moore as
his supervisor --
THE COURT: But Mr. Moore's opinion
that 20 to 25 miles an hour is excessive
at 3:40 a.m., whatever the time may be,
is just a person's opinion. It isn't a
statement of fact binding on a party.
MR. ANGUEIRA: It's more than an
opinion, your Honor. In this case, in
his capacity as the route fleet
supervisor and engaged in his
responsibilities of meeting with the
driver after this accident, he asked Mr.
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United States v. Vincent D. Spinosa
982 F.2d 620 (First Circuit, 1992)
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