(concurring).
I concur in the decision. I also concur in the opinion with one exception.
At the trial, where appellant was absent and unrepresented by counsel, the judge received in evidence an unauthenticated copy of the schedule of passengers’ payments, and the money judgment the judge entered cannot be sustained without reliance on that evidence. I think there was no error here, because of these peculiar circumstances: When libelant’s counsel offered the schedule, he advised the judge that, if necessary, he could introduce evidence authenticating it. I think the judge had discretion to rely on counsel’s assurance on that score; moreover, respondent, in his motion for a new trial made no showing that the schedule in evidence could not have been authenticated.
What bothers me about my colleagues’ opinion is that it seems, in part, to say this: (1) When a party is represented at a trial by a lawyer, if his lawyer does not object to the reception of hearsay evidence, he waives the objection. (2) If, then, a party and his lawyer fail to show up at a trial, the party waives, in advance, any such objection, at least to the extent that thereby he confers upon the judge discretion to receive hearsay evidence.
I think this a needlessly broad and dubious generalization. See, e. g., Frazier v. Frazier’s Ex’rs, 2 Leigh, Va., 642, *814650; cf. Lyman Co. v. Bechtell, 55 Iowa 437, 7 N.W. 673. I have found no contrary decisions, and my colleagues cite none.
Although some of us consider the hearsay rule (in civil actions) generally undesirable, nevertheless it is a part of our legal tradition which courts may not disregard. The rule embodies the policy that that sort of evidence is unreliable. It is therefore inadmissible, as thus untrustworthy, unless inferentially the opponent assents to its reception. When a party’s lawyer is present at the trial, his failure to object to hearsay evidence usually constitutes assent by waiver; for otherwise he can lay a trap, concealing a defect on which he will rely if judgment goes against his client. See, e. g., United States v. Rosenberg, 2 Cir., 195 F.2d 583, 596, note 9. In such a situation the lawyer exercises his judgment at the very time when the evidence is offered. But when the party and his counsel are not present at the trial, I think (1) the judge usually owes a duty to protect him by excluding hearsay of an important character, because it is deemed unreliable, and (2), if such a trial is by the judge without a jury, the judge should not ordinarily rest his decision on important hearsay which he has let in again because it is deemed unreliable. (I say “usually” and “ordinarily” to allow for exceptional circumstances such as those present in the instant case.)
For judges to indulge in broad generalizations is often delightful and sometimes essential. But I think we should usually not indulge in a generalization when it goes far beyond the need of deciding the case at hand and may be regarded as governing decisions in future cases, affecting other litigants not parties to that case and therefore unable now to voice their criticisms. As I said in an earlier opinion:1 “The intended consequences of efforts to govern the future often fail; the actual consequences — which may be good or evil — are, frequently, utterly different. Results are miscalculated; there is an ‘illusion of purpose.’ Of course, present problems will be clarified by reference to future ends, but * * * such ends, although they have a future bearing, must obtain their significance in present consequences, otherwise those ends lose their significance. For it is the nature of the future that it never arrives. ‘Tomorrow today will be yesterday.’ Any future, when it becomes the present, is sure to bring new and unexpected problems. There is much wisdom in Valery’s reference to the ‘anachronism of the future.’ * * * Courts should be modest in their legislative efforts to control the future, since they cannot function democratically, as legislative committees and administrative agencies can, by inviting the views of all who may be affected by their prospective rules. And, because they do not learn those views, and must largely rely on their own imaginations, (judges) should be cautious about attempting, in present cases, to project their formulations too far and too firmly into the days yet to come. To cope with the present is none too easy, in part because the present is only a moving line dividing yesterdays and tomorrows, so that reflections on what will happen are unavoidable elements of current problems. But, although . continuity, both backwards and forwards, is to some extent a necessity, judges should not shirk the present aspect of today’s problems in favor of too much illusory tinkering with tomorrow’s. The future can become as perniciously tyrannical as the past. Posterity-worship can be as l^id as ancestor-worship .”
. Aero Spark Plug Co. v. B. G. Corp., 2 Cir., 130 F.2d 290, 292, 295, 296 (concurring opinion).