Before MOORE, FRIENDLY and SMITH, Circuit Judges.
Plaintiff is a young Palm Beach attorney who formerly served as a special agent for the Federal Bureau of Investigation. Defendant Hearst Consolidated Publications, Inc. is the owner and publisher of the New York Journal-American; Cassini is the author of the "Cholly Knickerbocker" column which appears daily in the Journal-American; The Hearst Corporation operates a newspaper service syndicate, King Features Syndicate, which reprints and sells numerous feature columns, including Cholly Knickerbocker, to various newspapers throughout the United States.
The complaint alleged that defendants defamed Hope in a Cholly Knickerbocker column which appeared in the April 21, 1958 Journal-American, the Palm Beach Times of a few days later and numerous other newspapers. The claimed libelous item read as follows:
"Cholly Knickerbocker Says:
Story of Rich Man's Wife Has Palm Beach Gossiping Palm Beach is buzzing with the story that one of the resort's richest men caught his blonde wife in a compromising spot the other day with a former FBI agent. Cameras, screams of anguish and the whole nawsty bit * * *"
The publication of such a gossip paragraph using no names, known in "the trade" as a "blind item," raised sharply at trial the issue of its applicability to the plaintiff. Hope claimed that he and most others in the community readily recognized the item as referring to himself and to Mrs. Gregg Sherwood Dodge wife of Horace Dodge - wealthy members of the so-called Palm Beach "International" or "Jet Set." Hope testified that he, as a comparatively new member of the County Solicitor's Office, had received extensive publicity as an ex-F.B.I. agent. His evidence was that he, unlike a number of other former agents in Palm Beach, was known primarily as an exagent., further, that he was the only one of the former F.B.I. men who traveled in the resort's high society circles.
In addition to his own testimony, plaintiff offered the live testimony of James J. Lynch, who had called Hope's attention to the column, and the deposition evidence, by written interrogatories, of approximately a dozen other citizens of Palm Beach. After having qualified those witnesses as being residents of the area and acquainted with Hope - and as having read the newspaper item in question - plaintiff's counsel asked them to "state whether at the time you read the article * * * you formed a conclusion as to the name of the former FBI agent referred to in such article." Interrogatory 20 requested the deponent to "state the name of the person you believed to be the former FBI agent referred to in the article * * *" and the next query continued, "state the reason or reasons why you believed such plaintiff to be the former FBI agent referred to in the article * * *" Similar questions were asked concerning the witnesses' recognition of Mrs. Dodge as the lady involved. Plaintiff was allowed, over objection, to read these foregoing questions and the answers of the witnesses to the jury; the correctness of that ruling on admissibility of evidence is the principal issue on this appeal.
Rule 43(a), F.R.Civ.P., 28 U.S.C.A., which governs the admissibility of evidence in Federal civil trials, provides in pertinent part:
"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 * * *"
No relevant Federal statute has been called to our attention and the New York case law calls for exclusion. Appellee attempts to distinguish the state cases as limited to situations where the witness was simply construing the four corners of the publication in issue rather than applying his own knowledge of outside facts; he argues that where the witness has been properly qualified as to his extrinsic knowledge, his opinion would be admissible. Such reasoning would distinguish two Court of Appeals decisions, Van Vechten v. Hopkins, 1809, 5 Johns. 211, where, indeed, there is language, at page 226, helpful to appellee, and Julian v. American Business Consultants, 1957, 2 N.Y.2d 1, 155 N.Y.S.2d 1, 137 N.E.2d 1. But in Gibson v. Williams, 1828, 4 Wend. 320, the Court, in holding similar evidence to have been properly excluded, placed its ruling on the broad ground that the subject was not one for opinion evidence and that witnesses may simply state the facts, leaving the conclusion for the jury. This was followed and approved in People v. Parr, 1886, 42 Hun 313, where the court added the ground that if the plaintiff could bring in such testimony, the defendant would have to be allowed to counter with evidence that others had not so understood the article - a conclusion that does not necessarily follow but which has been repeated by the New York courts as a basis for the exclusion, Stokes v. Morning Journal Ass'n, 1901, 66 App.Div. 569, 73 N.Y.S. 245; O'Brien v. Bennett, 1902, 72 App.Div. 367, 76 N.Y.S. 498. Although appellee is literally correct in urging that the opinion in Stokes does not indicate whether the witness had been asked to give the background of extrinsic facts supporting his opinion, the circumstances strongly suggest that the opinion testimony must have been founded on such facts rather than on mere interpretation of the publication. Finally, Michaels v. Gannett Co., 1960, 10 A.D.2d 417, 420, 199 N.Y.S.2d 778, contains a dictum confirming appellant's position; perhaps we would not be bound by this if it stood alone and there were any basis for a contrary view, but there is nothing since 1809 to the contrary and the Van Vechten case is generally cited to support the broad exclusionary rule.
Unless then the opinion evidence was admissible "under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity," the trial court erred in its ruling. As the scope and thrust of Rule 43(a) in general and of its "equity clause" in particular have been the source of considerable controversy, it is desirable in interpreting that provision to obtain some further perspective.
Immediately after the promulgation of the Rules, Professor Moore hailed Rules 43 and 44 as making a "frontal attack on the law of evidence * * * (It) is subdivision (a) of Rule 43 that revolutionizes federal evidence, and in general places admissibility upon the sole basis of relevancy and materiality." 5 Moore's Federal Practice 1313, 43.02. This sanguine view of the prospective operation of Rule 43(a) was probably based largely on the author's conclusion that equity courts were run much like present day administrative agencies, 5 Moore 1312, and that most proffered evidence, if relevant and material, was freely admitted. 5 Moore 1307, 43.02.*fn1 Wigmore took a position exactly counter to that of Moore; he deplored what he considered a hodgepodge of Federal evidence rules and felt that Rule 43(a) should have the effect of tying the rules of admissibility and exclusion by and large to the local state practice - except in the unusual case where a Federal statute was pertinent. He relegated the "Federal equity" provision to a virtually inoperative role in affecting admissibility both because the "equity rules" were inapplicable to common law actions and unascertainable due to a general lack of reported opinions; the one thing the courts were not to do was to invoke any general "Federal common law of evidence." See 1 Wigmore 201, § 6(c).*fn2
At least four Courts of Appeal, the Third, Fifth, Eighth and Ninth circuits, have spoken, implicitly at least, on the question of whether Rule 43(a) authorizes federal courts to make new rules, based on broad principles of relevancy and materiality, in the law of evidence. Wright v. Wilson, 3 Cir., 1946, 154 F.2d 616, 170 A.L.R. 1237 was a personal injury action wherein the plaintiff was the only surviving eyewitness to the accident. The trial court excluded his proffered testimony on the basis of the "survivor" rule. Judge Goodrich, writing for a unanimous panel, affirmed "without enthusiasm" because the rule was in the "almost unique situation of being condemned by all of the modern writers on the law of evidence." The Court found that the Pennsylvania statute, and its judicial interpretation, unambiguously demanded exclusion and, further, that there had never been a Federal rule in law or equity which called for a different result. Implicit in the Court's holding was a rejection of the Moore-Green-Barron & Holtzoff view that Rule 43(a) freed federal courts from all restrictions on admissibility save relevancy and materiality; the Court ...