Gorman v. Bratka

• Decision Date: 21 November 1941
• Docket Number: 31062
• Citation: 300 N.W. 807,140 Neb. 575
• Parties: THOMAS GORMAN, APPELLANT, v. JOHN BRATKA, APPELLEE
• Court: Nebraska Supreme Court

300 N.W. 807

140 Neb. 575

THOMAS GORMAN, APPELLANT, v. JOHN BRATKA, APPELLEE

No. 31062

Supreme Court of Nebraska

November 21, 1941

APPEAL from district court for Douglas county: JOHN W. YEAGER JUDGE. Supplemental opinion on motion for rehearing of case reported in 139 Neb. 718. Former opinion adhered to.

Case remanded.

Syllabus by the Court.

If a party to a suit makes a written statement which is prepared by a third person, where the party denies the authenticity and correctness of the instrument, the party preparing the instrument, or some one cognizant with the facts, should be called to lay a proper foundation for its admission in evidence.

Appeal from District Court, Douglas County; Yeager, Judge.

On rehearing.

Former opinion modified and, as modified, adhered to.

For former opinion, see 139 Neb. 718, 298 N.W. 691.

David O. Mathews, for appellant.

Crofoot Fraser, Connolly & Stryker, contra.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER and MESSMORE, JJ.

OPINION

PAINE, J.

The original opinion in this case is found in 139 Neb. 718, 298 N.W. 691, in which the cause was remanded for a new trial.

In the motion for a rehearing, it is argued at length that there was no error in the refusal of the trial court to admit the written statement of the defendant, John Bratka, in evidence.

The record shows that, at about noon of the same day on which the automobile collision had occurred about 9:30 a. m., the defendant, Bratka, went to the office of Al Hummel, an insurance agent, in the Keeline building, Omaha, and sat in a chair next to Mr. Hummel, who took down the statement on a typewriter, making carbon copies, and the entire statement makes a long page of typewriting, each paragraph being single-spaced.

Mr Bratka testified that Mr. Hummel would ask him some questions, and then he would write, and when it was completed Mr. Hummel read it to him, and then he signed the statement, and admits his signature on the bottom of exhibit No. 15. Near the end of this statement appear the words, "I have read the above report and it is true and correct." This is followed by the sentence, "Correction: My son was riding in the rear seat with my sister-in-law instead of the front seat as mentioned above," showing a very minor correction in the interest of accuracy, for Bratka had first told Mr. Hummel to write that his son, John D., aged three, was in the front seat with him and his wife, and below this correction is repeated the statement just above his signature, "I have read the above report and it is true and correct." Then follows his admitted signature.

On...