Elder v. Robert J. Ackerman, Inc., 76-2669

• Decision Date: 27 September 1978
• Docket Number: No. 76-2669,76-2669
• Citation: 362 So.2d 999
• Parties: Earl E. ELDER, Sr., as Administrator of the Estate of Earl E. Elder, Jr., Appellant, v. ROBERT J. ACKERMAN, INC., a Florida Corporation for profit, Robert J. Ackerman, Jr., Continental Insurance Company, a Foreign Corporation, and Highlands Insurance Company, a Foreign Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 999

362 So.2d 999

Earl E. ELDER, Sr., as Administrator of the Estate of Earl E. Elder, Jr., Appellant, v. ROBERT J. ACKERMAN, INC., a Florida Corporation for profit, Robert J. Ackerman, Jr., Continental Insurance Company, a Foreign Corporation, and Highlands Insurance Company, a Foreign Corporation, Appellees.

No. 76-2669.

District Court of Appeal of Florida, Fourth District.

Sept. 27, 1978.

Phillips & Babbitt and Larry Klein, West Palm Beach, for appellant.

Kirk Sullivan and Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellee-Highlands Ins. Co.

Stephen C. McAliley, of Brennan, McAliley, Albury & Hayskar, West Palm Beach, for remaining appellees.

DOWNEY, Chief Judge.

This appeal involves the admissibility of a statement by a driver of a vehicle given to a police officer at the scene of an accident.

Appellee, Robert J. Ackerman, Jr., a 16 year old high school boy, while driving a truck at about 5:00 a.m. in Palm Beach County, collided with appellant's decedent, Earl Lee Elder, Jr., who, with a passenger, was driving a motorcycle through an intersection controlled by a traffic light. Elder and his passenger were killed and this wrongful death action resulted.

Shortly after the accident Deputy Sheriff Jon McDonough arrived on the scene and proceeded with a traffic accident investigation. Immediately thereafter Detective Walsh arrived and proceeded to assist McDonough with the investigation. McDonough interrogated Ackerman to obtain information for his accident report, required by Section 316.066, Florida Statutes (1975). Ackerman was placed in the back of a police car and interrogated further by McDonough, who testified he read Ackerman his Constitutional rights. After McDonough had obtained sufficient information for his accident report, Walsh proceeded to interrogate Ackerman further about the accident. Walsh testified that he did not advise Ackerman that there might be criminal charges involved, and as far as Ackerman knew, Walsh was one of the policemen working on the accident. Walsh testified further that Ackerman told him he was not sure what color the light was when he entered the intersection.

Walsh's testimony was elicited during a proffer by appellant. It was particularly vital because Ackerman testified at the trial that he had a green light as he entered the intersection. The trial judge rejected the proffer on the grounds that the evidence did not show that when Ackerman made the critical statement he knew the accident investigation had terminated, and the criminal investigation had commenced. ¹ The trial resulted in a defense verdict and the trial judge's ruling on the proffer of Walsh's testimony is the judicial error assigned for review.

The parties don't agree on the point involved in this appeal. However, the issue as we see it is whether the proffered testimony was admissible in evidence or whether it was protected by Section 316.066, Florida Statutes (1975).

Appellant contends that McDonough was at the scene to investigate the accident and to make the Section 316.066 report but that Walsh was there to conduct the criminal investigation, if such an investigation were called for. That is not an entirely fair analysis of the proffered testimony. We agree with the trial judge that the evidence does not make it clear that Walsh's function at the scene was purely criminal investigation in fact, his conduct there was in part assisting McDonough with the accident investigation. However, that is not decisive of the real point in the case.

Ackerman was required by law to make a report of the accident §§ 316.062; 316.066; 316.068 (1975). As a consequence of that statutory mandate he was entitled to the protection of § 316.066(4), Florida Statutes (1975), which makes such report inadmissible as evidence in any trial, civil or criminal, arising out of the accident. Stevens v. Duke, 42 So.2d 361 (Fla.1949). That protection does not apply with regard to a voluntary statement made during the course of an investigation of the criminal aspects of an accident. The same officer may conduct both the accident investigation for the § 316.066 report and the criminal investigation or different officers may be involved. The important point is that the person being questioned must be apprised of the distinction between the accident investigation phase and the criminal investigation phase.

In Nash Miami Motors, Inc. v. Ellsworth, 129 So.2d 704 (Fla. 3rd DCA 1961), the defendant driver gave Officer McCracken a statement regarding the accident. Thereafter, and while McCracken was still conducting his investigation, Officer Fontana arrived to conduct a special investigation. He advised the driver he wanted to take his statement and drove the driver to the police station to do so. At the station Fontana advised the driver that he was being questioned regarding the subject accident; that the driver was not required to answer any questions, but that any statements made might be used against him in some future criminal proceedings. The driver gave a statement which was transcribed but was not used by McCracken in his accident report. In reversing a judgment for plaintiff because the driver's statement to Fontana was admitted in evidence, the District Court stated:

"But appellee urges that the second report given to officer Fontana was not an 'accident report' within the meaning of the statute. He argues that the statement given to officer Fontana was not for the purpose of making an accident report but was for discovery of possible criminal charges which might arise from the accident. From the viewpoint of the person interrogated there is little difference.

The distinction, to have meaning, would require realization by a person charged with giving such a report that one officer was reporting the accident, while a second, who asked the same questions, was not reporting the accident. It further appears that for the statement of a defendant to be privileged under this statute it is not necessary for it to be given to an investigating officer, or given at the scene of the accident, or that the statement be used in a subsequently filed report of the accident." 129 So.2d at 706.

The facts in Nash, supra, are stronger than those in the case at bar with regard to what the officer did to put Ackerman on notice of the termination of the accident investigation and commencement of the criminal investigation. As the Supreme Court in State v. Coffey, 212 So.2d 632, 635 (Fla.1968), stated:

" . . . In the Nash case, after relating his version of the accident to one officer, the driver of the motor vehicle which struck a pedestrian was taken to the police station and interrogated by a special accident investigator a second time as to his version of the accident. The purpose of this second investigation was 'for discovery of possible criminal charges which might arise from the accident', to quote the decision of the appellate court, 129 So.2d p. 706 . . . (t)he stereotype 'warning' given to the driver in the Nash case was insufficient to alert him to the fact that the accident-report phase of the investigation had ended, even if it could be said that some type of criminal investigation had begun."

In the case at bar the only...