Scalzo v. Marsh’s Empirical Analysis

Citation profile

3 federal appellate · 7 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 10 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““. . . The general rule is that the weight to be accorded negative evidence is for the jury to determine. Conrardy v. Sheboygan County (1956), 273 Wis. 78, 82 , 76 N. W. (2d) 560 ; 2 Wigmore, Evidence (3d ed.), p. 777 et seq., sec. 664; comment note, Distinction between positive and negative evidence, 140 A. L. R. 530, 531. When the negative evidence is the absence of entries in books and records of account, 5 Wigmore, Evidence (3d ed.), pp. 392, 393, sec. 1531, states: “ 'The absence of an entry, where an entry would naturally have been made if a transaction had occurred, should ordinarily be equivalent to an assertion that no such. transaction occurred, and therefore should be admissible in evidence for that purpose. The same question arises for other kinds of evidence (post, secs. 1556, 1639). “ ‘The contrary attitude of some courts is lamentable. When a book purports to contain all items transacted within the scope of the book’s subject, the absence of an entry of transaction of a specific purport is in plain implication a statement by the maker of the book that no such transaction was had. The psychology of it is the same as that of testimony on the stand by a person who denies that a sound took place in his presence because he heard no such sound (ante, sec. 664). The practical reliability of it is shown by every day’s practice in every business house. All industry and commerce is daily conducted on the negative as well as on the affirmative showings of the regular book”

   1 later decision quote this exact passage
   e.g. 51 Wis. 2d 92 - Resseguie v. American Mutual Liability Insurance

2. ““. . . Not only did the evidence establish that each of the 13 tank cars of Skelgas, from one of which the gas that caused the explosion had been drawn, had been odorized with the proper amount of such chemical, but the expert witness, Statz, who tested the gas remaining in such two cylinders after the explosion, testified that such gas had been properly odorized. Any testimony of a casual observer, to the effect he did not smell gas just prior to the explosion, is not sufficient to raise a jury issue as to the odorization of the gas where the same has been verified conclusively as a scientific fact by proper expert testimony.” (p. 150.)”

   1 later decision quote this exact passage
   e.g. Hendrix v. Phillips Petroleum Co.