Hewitt v. Grand Trunk Western R. Co.

• Decision Date: 06 May 1983
• Docket Number: Docket No. 56751
• Citation: 123 Mich.App. 309,333 N.W.2d 264
• Parties: Dorothy HEWITT, administratrix of the estate of David R. Hewitt, deceased, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellee. 123 Mich.App. 309, 333 N.W.2d 264
• Court: Court of Appeal of Michigan — District of US

Page 264

333 N.W.2d 264

Dorothy HEWITT, administratrix of the estate of David R.

Hewitt, deceased, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellee.

Docket No. 56751.

123 Mich.App. 309, 333 N.W.2d 264

Court of Appeals of Michigan.

Submitted Dec. 7, 1982.

Decided Feb. 23, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 312] Zeff & Zeff by A. Robert Zeff and Gromek, Bendure & Thomas by James G. Gross, Detroit, of counsel, for plaintiff-appellant.

Patterson & Patterson, Whitfield, Manikoff, Ternan & White by Gerald G. White and Robert G. Waddell, Bloomfield Hills, for defendant-appellee.

Before RILEY, P.J., and WALSH and WAHLS, JJ.

RILEY, Presiding Judge.

Following a two week jury trial in Oakland County Circuit Court of plaintiff's wrongful death action, the jury returned a verdict [123 MICHAPP 313] in favor of defendant of no cause of action. Plaintiff appeals as of right.

I Facts

On January 23, 1972, plaintiff's decedent, David Hewitt, then 55 years old, was at home with plaintiff, to whom he had been married for 35 years. When Mrs. Hewitt left their home to attend a baby shower that afternoon, Mr. Hewitt appeared to be in good spirits. Shortly thereafter, Mr. Hewitt left their Oak Park home and drove to a drug store in Royal Oak. He purchased a newspaper and a few incidentals and chatted for a few minutes with the store owner who was a friend of his. The store owner testified that he noticed nothing unusual about Mr. Hewitt. Mr. Hewitt left the store sometime between 3 and 3:30 p.m. Shortly thereafter, between 3:30 and 4 p.m., Mr. Hewitt was killed when he was struck by a train owned by defendant near the Fifth Street pedestrian crossing in Royal Oak.

Plaintiff alleged that Mr. Hewitt was knocked into the train when he was struck by a broken metal band that defendant had negligently allowed to extend over the edge of the train. The evidence at trial indicated that the band had been used to secure a load of wooden crates on a flatcar near the caboose. Some of the crates had collapsed causing the load to shift, which in turn caused the metal band to break from the added pressure.

Defendant's theory of the case, on the other hand, was that Mr. Hewitt jumped into the train, in effect, taking his own life. The only known eyewitnesses were two boys, 14 or 15 years old. Although neither eyewitness was available at trial, [123 MICHAPP 314] one had been deposed and his deposition was admitted into evidence and read to the jury. The deposition revealed that as the boys were throwing snowballs and watching the train go by, they noticed Mr. Hewitt standing approximately six feet from the passing train and about ten feet south of the pedestrian crossing. Mr. Hewitt's car was parked on the other side of the tracks. The deponent's attention was next drawn to Mr. Hewitt when the other witness exclaimed, "Hey, look at that guy. He just got hit by the train". The deponent stated emphatically that he couldn't tell whether Mr. Hewitt had either walked or jumped into the train, as Mr. Hewitt was already in motion and was being struck by the caboose by the time he looked over.

Although it would appear that the other eyewitness was not deposed, he made a statement to a police officer who was investigating the accident. The officer testified that, although he had absolutely no recollection of the interview with the witness, he made notes of the interview from which he subsequently prepared an accident report, which the officer admitted on voir dire was not a verbatim account of the witnesses' statements. This accident report stated that "as the caboose was approaching the crossing, the compatent (sic) jumped into the side of the train".

At the conclusion of the trial, the case was submitted to the jury pursuant to a special verdict form. The jury found that the defendant was negligent but that its negligence was not the proximate cause of plaintiff's injuries. Plaintiff's sole contention on appeal is that the officer's accident report was admitted in violation of the hearsay rule, MRE 802.

[123 MICHAPP 315]

II Trial Court Ruling

Defense counsel offered the accident report as an exception to the hearsay rule pursuant to MRE 803(1), present sense impression; MRE 803(2), excited utterance; and MRE 803(5), recorded recollection. In ruling that the report was admissible, the trial court did not specify which exception was applicable, rather the court merely stated that:

" * * * [the witnesses' statements] were made within a reasonable length of time in this particular matter and I think it comes within the exception to the hearsay rule and I think the officer's, the way he recorded the particular matter, would not allow me to strike or not allow it into evidence at this time."

III The Hearsay Rule

There is no question that the report in question was hearsay. In fact, the report constituted multiple hearsay or "hearsay within hearsay". MRE 801(c) defines "hearsay" as:

"[A] statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

In the case at bar, the report was out of court statement, MRE 801(a), offered in evidence to prove the truth of the matter asserted, i.e., that Mr. Hewitt jumped into the train. Similarly, the report itself was based on the officer's hearsay notes which in turn were based on the hearsay statements of the witnesses. In order for such [123 MICHAPP 316] hearsay within hearsay to be admissible, each part of the combined statement must conform with an exception to the hearsay rule. MRE 805. Henson v. Veterans Cab Co. of Flint, 384 Mich. 486, 495, 185 N.W.2d 383 (1971); People v. Kirtdoll, 391 Mich. 370, 395-396, fn. 15, 217 N.W.2d 37, 69 A.L.R.3d 1 (1974). Our analysis then necessarily begins with an examination of the witnesses' statements to the investigating officer at the scene of the accident. Inasmuch as the witnesses' statements to the investigating officer formed the basis from which the report in question was ultimately derived, we must determine whether their statements fell within one of the enumerated exceptions to the hearsay rule.

IV

Hearsay Exceptions

A

Present Sense Impression

MRE 803 provides in part as follows:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

"(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."

MRE 803(1) is identical to FRE 803(1). The Federal Advisory Committee Note to FRE 803 states:

"The underlying theory of Exception (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation.[123 MICHAPP 317] * * * Morgan, Basic Problems of Evidence 340-341 (1962)."

In United States v. Narciso, 446 F.Supp. 252, 288 (E.D.Mich.1977), the Court discussed the "present sense impression" exception:

"Underlying Rule 803(1) is the assumption that statements of perception substantially contemporaneous with an event are highly trustworthy because: (1) the statement being simultaneous with the event there is no memory problem; (2) there is little or no time for calculated misstatement; and (3) the statement is usually made to one who had equal opportunity to observe and check misstatements." (quoting Weinstein and Berger, Weinstein's Evidence, p 803(1).) (Emphasis added.)

In the case at bar, as in Narciso, supra, all of these requirements are lacking. The statements were not made while the witnesses saw Mr. Hewitt being struck by the train or even "immediately thereafter". While the record is not clear, it is apparent that at least several, and possibly as many as 30, minutes passed before the officer took the witnesses' statements. Moreover, the reporting officer could in no way corroborate the truth of the witnesses' statements since he was not present at the scene of the accident until after the fact. While our conclusion in this regard could perhaps be viewed as imposing an unduly restrictive interpretation of the phrase "immediately thereafter", a more expansive interpretation would only serve to further blur the distinction between the "present sense impression" exception and the "excited utterance" exception which we have concluded, as discussed below, is also inapplicable. The purpose and intent of subrule 803(1) can be served most effectively by limiting the scope of that exception [123 MICHAPP 318] to statements made while describing the event or condition or instantly thereafter.

B

Excited utterance

Defendant also urged the trial court to admit the report as a hearsay exception pursuant to MRE 803(2), which provides as follows:

"(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

The rationale underlying this exception is "the special reliability which is regarded as furnished by the excitement suspending the declarant's powers of reflection and fabrication". McCormick, Evidence (2d ed.), Sec. 297, p. 704. Stated another way, it is the emotional shock produced by the startling event which "stills the reflective faculties and removes their control" that is the gravamen of the exception. People v. Ivory Thomas, 14 Mich.App. 642, 649, 165 N.W.2d 879 (1968) (Levin, J., concurring), quoting 6 Wigmore on Evidence (3d ed.), Sec. 1747, p. 135.

Although the elements of the excited utterance exception to the hearsay rule have been variously defined, the definition set forth in People v. Gee, 406 Mich. 279, 278 N.W.2d 304 (1979), has gained general acceptance:

"To come within the excited utterance exception to the hearsay rule, a statement must meet three criteria: (1) it must arise out of a startling occasion; (2) it must be made before there has been time to...