Hutchinson v. Plante

• Decision Date: 25 April 1978
• Citation: 175 Conn. 1,392 A.2d 488
• Court: Connecticut Supreme Court
• Parties: Mary E. HUTCHINSON v. Alfred PLANTE, Jr., et al.

Page 488

392 A.2d 488

175 Conn. 1

Mary E. HUTCHINSON v. Alfred PLANTE, Jr., et al.

Supreme Court of Connecticut.

Argued Dec. 15, 1977.

Decided April 25, 1978.

Anthony P. Copertino, Jr., Bridgeport, for appellant (plaintiff).

Frederick W. Christie, Bridgeport, for appellees (defendants).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

LONGO, Associate Justice.

This appeal concerns an automobile negligence action tried to a jury under the doctrine of comparative negligence. In her complaint the plaintiff alleged the following: On or about January 4, 1974, at approximately 6 a. m., the plaintiff was driving her automobile on the Fairfield Avenue eastbound entrance ramp of the Connecticut turnpike in Bridgeport. She entered the main travel portion of the turnpike and while proceeding in an easterly direction her automobile was struck in the rear by a vehicle owned by the defendant New Penn Company and negligently operated by its employee, the named defendant, Alfred Plante, Jr., causing her serious personal injuries. The defendants denied negligence and pleaded contributory negligence.

Answering an interrogatory, the jury found that the plaintiff failed to prove negligence and proximate cause and returned a verdict for the defendants. The plaintiff has appealed from the judgment rendered on the verdict, assigning error in a ruling admitting into evidence a police report of the accident and in the denial of her motion to set aside the verdict as contrary to the law and the evidence.

The plaintiff's evidentiary claim arose when defense counsel called a state police trooper as a witness and showed him a two-page police report of the accident signed with his name. In voir dire examination the trooper testified that he recognized the report as his and recalled investigating the accident, but he had no independent recollection of the parties or his conversation with them or the facts of the accident; that it was the regular business of the state police to investigate and report on automobile accidents; and that the report was made in the regular course of business on the day of the accident. After extensive arguments the plaintiff's objection to the admission of the report as a business entry was sustained. Subsequently the court, on its own initiative and outside the presence of the jury questioned the plaintiff and the trooper further on the circumstances relating to the making of the report. The court reversed its prior ruling and admitted the report into evidence, ordering the deletion of references to the plaintiff's excessive speed. Counsel for the plaintiff emphatically excepted to the ruling.

We may briefly dispose of the plaintiff's contention that the trial court improperly assumed the role of advocate and assisted defense counsel when it questioned the two witnesses sua sponte. Whether a trial court elects to question a witness is within its sound discretion, as is the extent of the examination. Its exercise will not be reviewed unless it abused its discretion. McWilliams v. American Fidelity Co., 140 Conn. 572, 580, 102 A.2d 345; State v. Cianflone, 98 Conn. 454, 469, 120 A. 347; 3 Wigmore, Evidence (Chadbourn Rev.) § 784. We have examined the pertinent testimony printed in the appendices to the parties' briefs and are satisfied that in further questioning the witnesses the trial court was endeavoring only to bring out the facts in order to resolve a doubt it apparently had as to the admissibility of the report. It did not assume the role of advocate but acted reasonably and within its sound discretion so that justice might be done. Goggins v. Fawcett, 145 Conn. 709, 713, 147 A.2d 187.

Whether the report was properly admitted presents a more difficult question. In accordance with the provisions of Connecticut's business-entry statute, General Statutes § 52-180, ¹ we have held that a police report of an accident generally is admissible as a business entry if it was made in the regular course of business, if it was the regular course of business to make such a report, and if the report was made when the accident occurred or within a reasonable time thereafter. Mucci v. LeMonte, 157 Conn. 566, 570, 254 A.2d 879. Those three requirements were satisfied here. That the trooper had no independent recollection of the accident or the parties is of no moment, so long as there was sufficient evidence for the court to find that the report met the statutory criteria. We have also said, however, that the fact that an accident report is generally admissible under § 52-180 does not require that everything in it be admitted into evidence. Mucci v. LeMonte, supra, 569, 254 A.2d 879.

An item in a business entry based on the entrant's own knowledge is an out-of-court declaration and therefore hearsay, but it is admissible because the statutory indicia of reliability are present. The accident report in question, which is before us as an exhibit, contains remarks about the parties, their vehicles, the weather, the road conditions and the like that apparently are based on the trooper's personal observations after he arrived at the scene of the accident. Those observations were properly admitted into evidence. Mucci v. LeMonte, supra, 568-69, 254 A.2d 879.

Items in a business entry not based on the entrant's personal knowledge add another level of hearsay; McCormick, Evidence (2d Ed.) § 310; and some exception to the hearsay rule must be found to justify their admission. A common exception is embodied in the business-entry statute itself, for information acquired by the entrant in the regular course of business includes information of others whose business duty it was to transmit it to the entrant. Mucci v. LeMonte, supra, 569, 254 A.2d 879; D'Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893. As this principle applies to accident reports, the leading case of Johnson v. Lutz, 253 N.Y. 124, 170...