Friesen v. Schmelzel

• Decision Date: 12 November 1957
• Docket Number: No. 2770,2770
• Parties: Thomas FRIESEN, Plaintiff and Appellant, v. Carol R. SCHMELZEL, Defendant and Respondent.
• Court: Wyoming Supreme Court

Page 368

318 P.2d 368

78 Wyo. 1

Thomas FRIESEN, Plaintiff and Appellant, v. Carol R. SCHMELZEL, Defendant and Respondent.

No. 2770.

Supreme Court of Wyoming.

Nov. 12, 1957.

Murane & Bostwick, R. R. Bostwick, Casper, for appellant.

William J. Wehrli, Casper, for respondent.

Heard before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

This case arose out of a collision between automobiles driven by Thomas Friesen, plaintiff, and Mrs. Carol R. Schmelzel, defendant. The accident occurred about 5 p. m., May 5, 1955, at the intersection of Fourteenth and Spruce Streets in Casper, while plaintiff was proceeding easterly on Fourteenth and defendant was traveling southerly on Spruce. Plaintiff filed suit against defendant, attributing as the cause of the wreck defendant's excess speed, her failure to maintain a proper lookout, and her failure to keep the car under proper control--claiming damages for $29,016. The case was tried to a jury which returned a verdict for defendant and against plaintiff. From the resulting judgment plaintiff has appealed, specifying as error the court's rulings in (a) permitting defendant's counsel to cross-examine plaintiff's witness, a police officer, regarding his official report of the accident to the Casper Police Department; (b) permitting an inflammatory statement of counsel in asking whether the patrolman had charged both of the parties as being negligent and later saying to the court that he should not have used the term 'negligent'; (c) sustaining an objection when plaintiff sought to show by the officer that the police court charge against Friesen was dismissed; (d) giving an instruction on the subject of 'unavoidable accident' which was not pleaded; (e) giving an instruction on the statutory requirements relating to brakes when evidence in the case did not show defective brakes on plaintiff's car; and (f) admitting portions of the brakes of plaintiff's car as exhibits in the case when such parts had been taken off the car in the yard of the body shop only a few days before the trial, many months after the wreck, and when there was no showing that such parts were in the same condition as when the wreck occurred.

The record of Officer Brandon's testimony shows as follows regarding the challenged cross-examination, defendant's use of the word 'negligent' and the rejection of plaintiff's offer to show dismissal of the police court charge against him:

'577 Q. Now, is it a fact that upon your report you listed as one of the causes of the accident the failure on the part of Thomas Friesen to grant the right-of-way?

'Mr. Bostwick: I object to that as calling for a conclusion; a matter of traffic violation; improper cross examination.

'The Court: 'It's a question of whether he put that on his report.

'Mr. Bostwick: He is talking about a determination of fact before he put it on the report.

'The Court: Overruled.

'(Exception allowed.)

'Witness: I may answer?

'The Court: Yes.

'A. Yes, I thought Mr. Friesen had failed to grant the right-of-way.

* * *

* * *

'590 Q. Well, what you really came up with then as far as your report is concerned, is that you charged both of them with being negligent; that is the effect of your report?

'Mr. Bostwick: I object to that, calling for a conclusion of the witness.

'The Court: That's right. I'm going to sustain that, Mr. Wehrli.

'Mr. Wehrli: Well, maybe I can ask it another way.

'The Court: All right.

'Mr. Wehrli: I shouldn't have used the term 'negligent.'

'591 Q. From your report it appears that you said both drivers were at fault. Is that what your report means?

'Mr. Bostwick: I object to that as calling for a conclusion; not the best evidence; and invading the province of the jury.

'The Court: Overruled. We are into it, gentlemen. I don't think we should have gotten into it, but we are into it, and we might as well go ahead.

'(Exception allowed.)

'A. That's right. I believe on both parties, if they had been more careful and a little more considerate, they could have avoided the accident.

* * *

* * *

'594 Q. In police court isn't it a fact the matter was dismissed as to Mr. Friesen?

'Mr. Wehrli: I object to that and think it's immaterial. I don't know if anybody was tried, as a matter of fact, but supposing anybody was tried. It has no bearing as evidence in this case.

'The Court: Sustained.

'(Exception allowed.)'

A review of the testimony shows that the officer had made an official report to the Casper Police Department, had such report on the stand with him, and consulted it during the direct questioning. It is difficult to determine whether or not counsel intended Question 577 to be an impeachment of the witness. The question seems to have had as its purpose the showing of a statement inconsistent with the testimony given; but the statement itself was not introduced or quoted. If impeachment were intended then it would have been proper for the witness to have been asked whether he made the supposed contradictory statement. See 3 Wigmore on Evidence, 3d ed., § 1025. See also Froeming v. Stockton Electric R. Co., 171 Cal. 401, 153 P. 712, Ann.Cas.1918B, 408; and St. Louis Southwestern Ry. Co. of Texas v. Bishop, Tex.Civ.App., 291 S.W. 343. Surprisingly, the propriety of a question (whatever its form) to an official about his highway accident report has not often been discussed by the courts. One instance is cited by defendant in which a highway patrolman's report was found by the court to be admissible for the purposes of impeachment. See Brown & Root, Inc., v. Haddad, 142 Tex. 624, 180 S.W.2d 339. See also Annotation, 153 A.L.R. 163, 174, and Annotation, 165 A.L.R. 1302, 1317, citing this case. We think such principle is applicable in the present situation even though there was no true attempt to impeach, but rather an effort to discredit by an argumentative question. Wide latitude should be permitted in cross-examination of an adverse witness. See 70 C.J. 619. We expressed this view in Henderson v. Coleman, 19 Wyo. 183, 115 P. 439, 451, 115 P. 1136, when it was said:

'The latitude of cross-examination is so largely within the discretion of the trial court that it must, as a general rule, appear to have been flagrantly abused before a verdict will be disturbed on that ground.

'But there was clearly no error in allowing the cross-examination as to the statements made in the affidavit; the purpose being to show the making of statements contradicting his testimony. * * *'

This decision was cited with approval in Boyer v. Bugher, 19 Wyo. 463, 120 P. 171, 180. To us it would be inequitable that a litigant be permitted to call an official as a witness, allow him to testify from a report which is identified to the fact-finding body as an official document, and thereafter deny the opponent a right to cross-examine him as to the contents of the instrument. We think there was no abuse of discretion in allowing the question to be answered, nor does this view alter the principle in Borzea v. Anselmi, 71 Wyo. 348, 258 P.2d 796, 804, that 'the question of negligence is ordinarily one for the jury.'

We pass then to the previously quoted discussion between court and counsel following Question 590. This occurred after plaintiff on redirect examination had elicited testimony that Officer Brandon (a) had listed Carol Schmelzel on the report 'for careless driving,' and (b) had charged Thomas Friesen with 'failure to grant the right of way.' Thus, plaintiff put the entire matter in issue and thereby placed himself in a position where he cannot properly raise his present objections to defendant's questions. We think that the word 'careless' thus used by counsel and the witness is so closely related to 'negligent' to which plaintiff now objects that the statement of defendant's counsel was not prejudicial under the circumstances.

In view of the trial court's admitting in evidence the answers to Questions 577 and 591, tending to show how the officer had listed the cause or fault of the accident, it is now urged that the officer should have been permitted to answer a query as to the dismissal of a traffic charge against plaintiff. No authorities are cited by counsel, but it appears to be clear that evidence regarding the arrest or even the conviction of a driver of a motor vehicle is inadmissible in an action to recover damages. See 61 C.J.S. Motor Vehicles § 516, p. 259; 42 C.J. 1230; and 9C Blashfield, Cyclopedia of Automobile Law and Practice, perm. ed. 1954, § 6196. Such rule is subject to an exception if the evidence embraces an admission of one of the parties, but there is no claim of admission in this instance. We think that evidence of the dismissal of the traffic charge was properly rejected.

Plaintiff alleges error of the court in giving an instruction which stated that the defendant was not guilty of negligence if the collision occurred as a result of an 'unavoidable accident'--defining these words. He urges that defendant had interposed no defense of 'unavoidable accident,' that such defense is an affirmative matter, and must be pleaded and proved. Many different definitions of 'unavoidable accident' have been given by the authorities. For example see 43 Words and Phrases, Unavoidable Accident, p. 38 ff., and 5 Fifth Decennial Digest, Automobiles, k246(22)j. As relates to motor vehicle accidents, we would say that the words mean an accident in which there is no negligence by either party. This view is substantiated in many of the cases mentioned in the foregoing references.

Appellant cites only one case to substantiate his contention that the instruction was erroneous. State Compensation Insurance Fund v. Lamb, 96 Cal.App. 236, 273 P. 1080, apparently for...