588 F.2d 551 (6th Cir. 1978), 76-2474, Baker v. Elcona Homes Corp.

Docket Nº:76-2474.
Citation:588 F.2d 551
Party Name:Cindy A. BAKER, by and through her father, Joseph Baker, et al., Plaintiffs-Appellants, v. ELCONA HOMES CORPORATION and Joseph L. Slabach, Defendants-Appellees.
Case Date:December 08, 1978
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 551

588 F.2d 551 (6th Cir. 1978)

Cindy A. BAKER, by and through her father, Joseph Baker, et

al., Plaintiffs-Appellants,

v.

ELCONA HOMES CORPORATION and Joseph L. Slabach, Defendants-Appellees.

No. 76-2474.

United States Court of Appeals, Sixth Circuit

December 8, 1978

        Argued April 19, 1978.

Page 552

[Copyrighted Material Omitted]

Page 553

        John J. McCarthy, William A. Davis, Harlan M. Gordon, Komito, Nurenberg, Plevin, Jocobson, Heller & McCarthy, Cleveland, Ohio, for Baker.

        Thomas Murray, Jr., Murray & Murray Co., Sandusky, Ohio, for Banks et al.

        John W. Hackett, Jr., Thomas G. Pletz, Schumaker, Loop & Kendrick, Toledo, Ohio, for defendants-appellees.

        Before ENGEL and KEITH, Circuit Judges and JOHNSTONE, District Judge. [*]

        ENGEL, Circuit Judge.

        Early in the evening of June 7, 1973, a 1968 Plymouth Valiant automobile travelling southbound on State Route 4 and a Ford semi-tractor truck travelling westbound on U.S. Route 20 collided at the intersection of the two routes, seriously injuring one and killing the other five occupants of the Valiant. The driver of the truck did not sustain serious injury. U.S. Route 20 at that intersection was a four-lane divided highway running generally east and west; State Route 4 was a two-lane highway running generally north and south. The intersection was controlled by a traffic light. 1

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        The occupants of the automobile were returning home from a high school outing when their car was struck by the truck. Joseph Slabach, the driver of the truck, was returning home after making a delivery for his employer, Elcona Homes Corporation. It is not disputed that Slabach was operating the truck in the course of his employment for Elcona Homes Corporation.

        A complaint invoking the diversity jurisdiction of the district court and filed by the administrators of the estates of the four deceased passengers of the Valiant was consolidated for trial with a similar complaint brought on behalf of the seriously injured passenger, Cindy Baker. Named as defendants were Slabach and Elcona Homes Corporation.

        The plaintiffs' causes of action were based on the alleged negligence of the defendant Slabach. The primary factual issue in the lawsuit was which vehicle had the right-of-way at the time it entered the intersection. Since Slabach testified that he could not see the light because he was blinded by the sun, and since Cindy Baker had no recollection of the accident, there was no direct eyewitness testimony concerning this fact and the jury's resolution of the issue had to depend upon circumstantial evidence and such inferences as could be made from it. The burden of proof, of course, rested upon the plaintiffs. A jury trial resulted in a judgment in favor of the defendants; the plaintiffs appeal. We affirm.

       I.

        The principal issue upon appeal concerns the admission into evidence of the police accident report prepared by Sgt. John N. Hendrickson, a twenty-eight year veteran of the Ohio State Highway Patrol. Hendrickson, as assistant post commander, was on duty at the Norwalk Post when the accident occurred and, upon receiving the accident report, sped directly to the scene, arriving approximately six minutes after the collision.

        Sgt. Hendrickson was called as a witness by the defense, although he had been subpoenaed but not called by the plaintiffs. He testified at length about the physical circumstances at the accident scene, including the measurements taken and careful descriptions of the locations of the vehicles and physical markings, refreshing his recollection from time to time from the police accident report. He further testified to having visited the defendant Slabach at the hospital and to having taken a statement from him in which Slabach, while admitting that because of the sunlight he could not see the color of the traffic light controlling the intersection, described the location and speed of the Valiant when he first observed it emerging from behind a house located on the northeast corner of the intersection. Sgt. Hendrickson also identified a diagram of the accident scene on which were placed, on transparent overlays, the locations of the two vehicles at the point of impact and as they came to rest, calculated by the sergeant from his investigative materials and from his use of vector analysis. 2

        While Sgt. Hendrickson was examined and cross-examined at length concerning the factual data which he incorporated in the accident report and the vector analysis he employed, he was not questioned concerning any opinion he might have as to who had the right-of-way, although he had

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qualified as an expert in accident reconstruction and although the plaintiffs had, in their case-in-chief, employed similarly an accident reconstruction expert who opined that the light was green for the Valiant at the time it entered the intersection.

        After Sgt. Hendrickson had left the stand, however, the defense introduced the police accident report into evidence, over the hearsay objection of plaintiffs. Plaintiffs particularly objected to Sgt. Hendrickson's record of the statement of defendant Slabach 3 and to Sgt. Hendrickson's notations concerning the fault for the accident. The report included the observation that "apparently unit # 2 (the Valiant) entered the intersection against a red light." Likewise, on the same page of the accident report under "contributing circumstances," Sgt. Hendrickson had checked the box provided on the form for failure of vehicle # 2 (the Valiant) to yield the right-of-way and had also checked the boxes next to "driver preoccupation" for drivers of both the truck and the Valiant.

        In admitting the accident report and the addenda to it, the district judge appears to have concluded that the report was admissible as a recorded recollection under Fed.R.Evid. 803(5). 4 We conclude, however,

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that the report was more properly admissible as a public record under Fed.R.Evid. 803(8):

Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

        The relatively little case law which has developed since the adoption of Rule 803(8) supports the admissibility of the police report. A police report is, in our judgment, a "public record and report" within the meaning of the first part of Rule 803(8). The direct observations and recorded data of Sgt. Hendrickson in the course of his investigation which were placed upon the report clearly are "matters observed pursuant to duty imposed by law as to which matters there was a duty to report," under Rule 803(8)(B), 5 and are thereby not inadmissible under the hearsay rule. The principal concerns, however, are whether Slabach's statement as recorded in the police report and whether the findings of Sgt. Hendrickson as to the color of the light at the time of the accident and his markings on the boxes relative to the contributing circumstances of the accident were properly allowed to be put before the jury as substantive evidence.

        We address first the question of whether...

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