Calhoun v. Chappell
| Decision Date | 15 May 1968 |
| Docket Number | No. 43407,No. 3,43407,3 |
| Citation | 162 S.E.2d 300,117 Ga.App. 865 |
| Parties | Harry C. CALHOUN v. Cecil H. CHAPPELL |
| Court | Georgia Court of Appeals |
Henry N. Payton, Newnan, for appellant.
Neely, Freeman & Hawkins, Edgar A. Neely, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
1. A police officer may not testify on the trial of a tort action resulting from a motor vehicle collision as to the manner in which the collision occurred where his testimony is based merely on statements of what the parties told him, since this is hearsay. Augusta Coach Company v. Lee, 115 Ga.App. 511, 154 S.E.2d 689.
2(a). Nor is the same narration made admissible because written down by the police officer in an accident report. There is indication in Stubbs v. Daughtry, 115 Ga.App. 22, 153 S.E.2d 633, that such reports, insofar as they reflect facts actually seen by the officer investigating the scene, may be introduced under Code, Ann. § 38-711 as business entries, where a proper foundation is laid but this does not include statements which are hearsay, opinion evidence, or conclusions. Stubbs refers to Martin v. Baldwin, 215 Ga. 293, 110 S.E.2d 344, and the latter case makes it crystal clear that Code Ann. § 38-711 is primarily adapted to allowing testimony of business records the authentication of which is otherwise difficult against a hearsay objection because it is 'the routine product of an efficient clerical system.' Its purpose is not to bolster the witness on the stand but to serve in place of a witness by giving the manner of entry within the usual course of the business enterprise an independent prima facie probative value of its own, thus broadening an exception to the hearsay rule. This report, proepared and filed by Officer Smith, could not serve as an exception to the hearsay rule in regard to anything Officer Smith himself saw at the scene because he was on the stand testifying; that part of the report which related to statements made to him by others, which he could not testify to because as to him it was hearsay, is subject to the same objection when the document is offered in evidence.
2(b). Various cases have discussed the admission in evidence of police reports in tort actions or criminal prosecutions under the Federal Business Records Act (28 U.S.C.A. § 1732) which is substantially similar in form to Code Ann. § 38-711. In Bridger v. Union Ry. Co., 6 Cir., 355 F.2d 382 it was stated: 'It is the 'business' of local police departments to investigate accidents within th emunicipal boundaries; these investigations enable the police to determine what, if any, violations of law occurred, what citations, if any, should issue, and what future safety measures might be employed to prevent the recurrence of such an accident. Therefore we must conclude that police accident reports ar within the ambit of the term 'business records' contained in the Act.' Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48, 57 was cited as a precedent. But the report is not admissible if it contains hearsay, conjecture or conclusions. Levin v. Green, D.C.Mun.App., 106 A.2d 136; Gncarella v. Fyfe, 1 Cir., 171 F.2d 419; Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517. It is admissible whether used to attack the credibility of the investigating officer (Salsberg v. Modern Transfer Co., 2 Cir., 324 F.2d 737) or in conjunction with the testimony of the state trooper or policeman who prepared it in the first instance. Hawkins v. Gorea Motor Exp., Inc., 2 Cir., 360 F.2d 933; McWilliams v. Lewis, 75 U.S.App.D.C. 153, 125 F.2d 200. These rules, which appear sound when applied to our Code Ann. § 38-711, do not conflict with what was held in Stubbs v. Daughtry, supra, to the effect that portions of the report were properly admitted because dealing with matters of fact, and the admission of other portions, dealing with hearsay and conjectural opinions were not reversible error because the same facts were testified to without objection. Examination of the record shows that the police officer testified without objection and substantially verbatim to the material in the report, including the opinions, conjecture, etc. We think the sounder rule would be, if it is desired by either side that a police report of accident be introduced in evidence under Code Ann. § 38-711 after the foundation is laid, the report not be offered unless all parts of it containing objectionable material are first deleted. Where the officer who prepared and filed the report is present, it can add little to his testimony; where he is not present but the report is proved it may not contain any facts to which the author, had he been present, would be incompetent to testify.
3. The only objection made to the police report was to the portion designating 'DESCRIBE WHAT HAPPENED,' under which the following language appears: . It is clear that the first two sentences would not be inadmissible under the objection raised since the undisputed testimony of both the plaintiff and the...
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Brown v. State
...and conclusions, it is not generally admissible. See Wesley v. State, 225 Ga. 22(2), 165 S.E.2d 719 [(1969)]; Calhoun v. Chappell, 117 Ga.App. 865(2a), 162 S.E.2d 300 [(1968)]. Pickett v. State, 123 Ga.App. 1, 2(2), 179 S.E.2d 303 (1970). Police reports that contain conclusions, opinion, es......
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