Ernst v. Greenwald

• Decision Date: 30 June 1967
• Citation: 151 N.W.2d 706,35 Wis.2d 763
• Parties: Timothy P. ERNST, by L. E. Vaudreuil, his gdn. ad litem, et al., Respondents, v. Thomas E. GREENWALD et al., Appellants.
• Court: Wisconsin Supreme Court

Page 706

151 N.W.2d 706

35 Wis.2d 763

Timothy P. ERNST, by L. E. Vaudreuil, his gdn. ad litem, et al., Respondents, v. Thomas E. GREENWALD et al., Appellants.

Supreme Court of Wisconsin.

June 30, 1967.

Rehearing Denied Sept. 11, 1967.

Foley, Capwell & Foley, Racine, for appellants.

Vaudreuil & Vaudreuil, Kenosha, for respondents.

HEFFERNAN, Justice.

Was a letter from an employee of the state highway

commission to plaintiff's attorney, stating that

flashing signals were used at the time

of the accident, properly

admitted in evidence?

The plaintiff called as a witness Gordon Mueller, an accident traffic engineer employed by the state highway commission. He identified plaintiff's Exhibit 2 as a letter from the plaintiff's counsel to the state highway commission requesting information in regard to how the traffic signals were being operated at the intersection at the time of the accident. He also identified plaintiff's Exhibit 1, the commission's reply to the inquiry of the plaintiff's attorney. Both of these letters were received into evidence over the objection of defendant's counsel on the basis that they were irrelevant and immaterial and were not the best evidence. Plaintiff's Exhibit 1, commission's reply, stated:

'The time clock on the signal controller was set to place the signals on flashing operation at 10:00 P.M. each evening. On September 6, 1964 at 11:35 P.M. (the time of the accident), the signals should have been flashing a red indication on S.T.H. 43 and an amber indication on S.T.H. 31.'

Despite the statement of defendant's counsel made in chambers on the record that the proferred exhibit was in error and that the highway commission had, by letter, retracted the information set forth in plaintiff's Exhibit 1 and counsel for defendant's renewed objection that the letter was not the best evidence, the exhibits were nevertheless received. These exhibits tended to prove that the plaintiff, who was proceeding on highway 31, was confronted with only an amber warning blinker, while the defendant, who was proceeding on highway way 43, was confronted with a red blinker. After the exhibits were received, the defendant's attorney attempted to cross examine the witness in regard to the records themselves, but the trial judge sustained the plaintiff's objection that such an inquiry was beyond the scope of direct examination. Subsequently, however, when the defendant presented his case, he called a Mr. White, the district traffic engineer, who identified the plaintiff's exhibits but stated that the information contained in plaintiff's Exhibit 1 was in error. The district traffic engineer testified that a letter was then sent to the plaintiff's attorney stating:

'Upon further scrutiny of our files, we find that the latest service report indicating work on the time clock was submitted on August 30, 1961. At that time, the clock was set to flash the signal from midnight to 6:00 A.M.

'Between August 30, 1961, and September 6, 1964, there is no report indicating a change in operation of the time clock. From this, we can only assume that our letter of October 31 gave you erroneous information. We are sorry if this has caused you any inconvenience.'

White then proceeded to testify that he had with him the original service records pertaining to the light sequence of the traffic controls at the intersection and, from those records, he testified that the traffic signals at the time of the accident were programmed to operate in a green, amber and red sequence.

We conclude that the only admissible evidence in regard to the operation of the lights was that given by the defendant's witness in testifying from the official records and which appeared in defendant's Exhibit 2, the state highway commission electrical work order and service report form, which indicated that the flashing lights were installed to operate only from midnight to 6:00 a.m., and not from 10:00 p.m., as plaintiff's Exhibit 1 indicated.

The admissibility of the records, as introduced by the defendants, is recognized not only by the case law of the state of Wisconsin but by the statutes. Sec. 889.18, Stats., provides:

'(1) As evidence. Every official record, report or certificate made by any public officer, pursuant to law, is evidence of the facts which are therein stated and which are required or permitted to be by such officer recorded, reported or certified * * *.

'(2) Copies of Evidence. A certified copy of any written or printed matter preserved pursuant to law in any public office or with any public officer in this state, or of the United States, is admissible in evidence whenever and wherever the original is admissible, and with like effect.'

Jones on Evidence states the policy reason for permitting the use of such records:

'Where a person in public office has been required by statute or by the nature of his office to write down particular transactions occurring in the course of his public duties and under his personal observation, the record is generally held to be admissible in evidence. Such entries are generally made by those who can have no motive to suppress the truth or to fabricate testimony. Moreover, they are made in the discharge of duty, pursuant to an oath of office, and to satisfy the rule against hearsay have the earmarks of inherent trustworthienss.' 3 Jones on Evidence (5th ed.), p. 1057, sec. 544.

The same rule and rationale are recognized in 3 Am.Jur. (2d), Evidence, p. 128, sec. 999, and 32 C.J.S. Evidence § 626, p. 793. The latter citation states:

'Public records and documents are ordinarily admissible in evidence. As a general rule, where some enactment or rule of law requires or authorizes a public official to make a certificate or written statement as to some matter or fact pertaining to and as a part of his official duty, such writing is competent evidence of the matter of fact therein recited. The general rules governing the relevancy, competency, * * * apply * * *.'

It is thus apparent that, both under the recognized common-law rules and the statutes of the state of Wisconsin, defendant's Exhibit 2, the report form, was properly admitted into evidence. However, plaintiff's Exhibit 1, the letter of an employee of the highway commission, does not come within the exceptions permitted by the statutes or by the case law. Neither an official record nor a certified copy was submitted. Rather, this evidence was submitted by a letter from a highway commission employee to the plaintiff's attorney. The applicable rule of evidence is not satisfied thereby. Moreover, the evidence offered by the plaintiff in this respect runs afoul of the best-evidence rule. As stated by McCormick, Evidence (hornbook series), p. 409, sec. 196:

'The rule is this: in proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason * * *.'

We conclude that a mere letter from an employee of the department that keeps public records does not constitute admissible evidence of the contents of such records. In this case the soundness of the policy reasons for the best-evidence rule were demonstrated in a striking manner, for the writing, plaintiff's Exhibit 1, inadmissible under the rule, was proved to be in error when the original records were produced.

On oral argument in this court, counsel for the plaintiff contended that, although the evidence presented by him in his Exhibit 1 was erroneous, it was nevertheless admissible to impeach the contrary testimony that was subsequently offered from the official records. While it might have been admissible for that purpose, it was not introduced in such a context during the course of trial, and it is clear that the jury reasonably could have taken the position that the plaintiff's exhibit was introduced for the purpose of showing the truth of the matters asserted therein rather than to impeach an inconsistent statement of the highway commission representative. We conclude that the introduction into evidence of plaintiff's Exhibit 1 under those circumstances was erroneous and prejudicial to the defendant.

Looking at the admissible evidence only, we conclude that the plaintiff failed to produce any evidence tending to prove that, under the programmed operation of the traffic lights at the time in question, the flashing lights were red for

the defendant and amber for the plaintiff. Was there

sufficient credible evidence to support the jury verdict?

The jury found both parties to be causally negligent and apportioned 20 percent to the plaintiff and 80 percent to the defendant. The defendant, the appellant in this court, takes the position that there is no credible evidence to support the verdict. This court takes the position that, when a jury verdict is attacked, it will be sustained if there is any credible evidence under any reasonable view that supports the verdict. This is particularly true when, as here, the jury's verdict has been given the approval of the trial court. Schwalbach v. Antigo Electric & Gas, Inc. (1965),...