## Facts

- Herzig, the administrator of a decedent’s estate, sued Swift & Co. in federal court under Florida’s wrongful-death statute.
- The case reached trial, and the dispute centered on proof of damages to the estate, including what the decedent likely would have accumulated had he lived.
- To show the decedent’s earning capacity, the plaintiff offered oral testimony from one of the decedent’s business partners about the partnership’s earnings and the decedent’s share.
- The district judge excluded the partner’s testimony, ruling that the partnership books were the “best evidence” of earnings and that the books had to be produced instead of testimony.
- The judge also refused to permit plaintiff’s counsel to argue the evidentiary point.
- With the damages proof limited by the exclusion, the trial court effectively withheld the damages question from the jury and entered judgment for the defendant.
- The plaintiff appealed to the United States Court of Appeals for the Second Circuit.

## Issues

1. Whether the best evidence rule required exclusion of oral testimony about partnership earnings because those earnings were recorded in the partnership’s books.
2. Whether, under Florida wrongful-death law, the plaintiff’s proof on damages (including evidence of the decedent’s health, habits, and industry) was sufficient to require submission of damages to the jury.

## Decision

- The Second Circuit reversed and remanded.
- The district court misapplied the best evidence rule by treating the existence of bookkeeping records as a bar to testimony about the underlying earnings.
- Even apart from the evidentiary ruling, Florida law did not require detailed proof of earnings as a mandatory condition for damages; the evidence was enough to let a jury determine damages.

## Legal Principles

- The best evidence rule, as applied in modern evidence law, generally requires production of a writing only when a party seeks to prove the contents of that writing; it does not exclude testimony about facts merely because those facts were later recorded in writing.
- Partnership books and similar business records may record events or results (such as earnings), but testimony about those events or results is not automatically an attempt to prove the contents of the records.
- Florida wrongful-death damages to an estate are measured by the difference between the estate at the time of death and what it likely would have been had the decedent not been killed.
- Evidence of earnings is relevant to that estimate, but it is not a required element without which damages must fail; other proof (including health, habits, and industry) may allow a jury to make a damages determination.

## Conclusion

Herzig v. Swift & Co. holds that excluding a partner’s testimony about partnership earnings on “best evidence” grounds was error because the testimony proved underlying facts rather than the contents of a writing, and that Florida wrongful-death damages could not be kept from the jury simply because earnings proof was not produced in documentary form; the judgment was reversed and the case remanded.


Herzig v. Swift & Co., 146 F.2d 444 (1945)