Forman, Ganey and Freedman, Circuit Judges. Ganey, Circuit Judge (dissenting).
Plaintiff, Max Grossman (hereinafter appellant) is a citizen of New Jersey. Defendant, United States Slicing Machine Co., Inc. (hereinafter appellee) is incorporated and has its principal place of business in Indiana. Venue is properly laid in the Eastern District of Pennsylvania. In this diversity negligence action, the appeal is from a judgment entered in appellee's favor subsequent to a jury verdict exonerating appellee from liability and a denial of appellant's new trial motion.*fn1
Appellant, a meat cutter by trade, injured his left index finger on a cutting machine, a specialized band saw, manufactured by appellee. The theory of liability was that appellee had failed to repair and service the machine properly, for the blade allegedly loosened while appellant was cutting meat, catching the meat and simultaneously pulling appellant's hand into the blade. The theory was sought to be proven by testimony expressing the frequency of difficulty had with the machine and the failure of appellee's repairmen to do more than tighten a screw each time a call was placed for repairs. Appellant also qualified a safety engineer as an expert witness on proper repair techniques of meat cutting machines. The expert testified that appellee had not properly repaired the machine. Appellee introduced contrary proofs on the above points.
Shortly after the accident appellant had given a two page statement to a Mr. Garrigle, a claims agent of the compensation carrier of appellant's employer. The statement was not in appellant's handwriting but his signature admittedly appeared at the end of the second page, subsequent to the language: "I have rad [sic] the statement on Page 1 & 2. It is true and correct." The first page contained appellant's initials, but he, in the course of recross-examination, volunteered a denial that the initials were his. The second paragraph of the first page of the statement, above the middle of the page, reflects that appellant allegedly told Mr. Garrigle that his hand had slipped off the meat into the blade. This was in contradiction to appellant's direct testimony that the machine drew his hand into the blade. Cross-examination elicited from appellant that the first words on page two were a continuation of the last words on page one. Appellant also testified on cross-examination that the observation appearing on page one that his hand had slipped off the meat was false. Neither appellant's nor appellee's attorneys pressed questions specifically inquiring whether appellant had in fact, regardless of the veracity of the statement, told Mr. Garrigle that which was claimed to be an inaccurate observation.
Appellee sought the introduction of this two page statement as direct evidence of that which caused appellant's mishap. Mr. Garrigle was in court but was not called by appellee to authenticate the statement. Appellant objected to its introduction on the ground that his mere admission that his signature appeared on the second page of the statement did not suffice to authenticate it as a whole, in the light of his testimony as to the inautheniticity of the first page. The District Court admitted the two page statement into evidence. Appellant largely rests his appeal on his contention that the admission of the statement constituted reversible error.
In its memorandum denying appellant's motion for a new trial*fn2 the District Court agreed with appellee that it was not necessarily bound to follow the Pennsylvania rules of evidence*fn3 which, appellant argued, commanded the rejection of the proffered statement in the absence of an affirmative authentication by Mr. Garrigle. Rather it turned to Rule 43(a) of the Federal Rules of Civil Procedure which it held "makes evidence admissible if it would be admissible under any of the legal standards specified in that rule: (1) United States statutes; (2) preexisting rules of the United States equity courts; or (3) state rules of evidence. * * *" It cited the decision of this court in Wright v. Wilson*fn4 and correctly determined that in the federal courts, given a conflict between a state's and the federal rules of evidence, the rule that would admit the evidence is the one to apply.*fn5
The District Court found that appellant had admitted that he had signed a "continuous integrated two page statement." Relying on Wigmore's statement that "proof of the signature of the document is sufficient to charge him"*fn6 the District Court confirmed its admission of the statement commenting:
"When a party denies making a statement * * * it is incumbent on him to come forward with proof that he has been misquoted or his statement tampered with in some manner."
It called attention to the fact that the scrivener was in court and could have been called as a witness to testify about the facts surrounding the document. The District Court concluded that the admitted signature on page 2 was sufficient to authenticate both pages of the document.
The appellee rests upon the position taken by the District Court. It also urges that the Court's judgment should be affirmed on the ground that there was no "denial that the statement was actually made by the appellant nor any allegation that the statement was incorrectly recorded by the scrivener. It is merely a denial that the accident occurred as set forth in the statement."
Initially turning to this point, at the trial the attention of the appellant was drawn to the statement*fn7 on cross-examination by the appellee. In response to his question as to whether the signature on page two of the statement was that of appellant the answer was in the affirmative.
Thereupon counsel for appellee asked several questions based on the contents of the first paragraph of page one which were answered consistently. ...