Kleinschmidt v. Scribner

Citation30 P.2d 362,54 Idaho 185
Decision Date02 March 1934
Docket Number6010
PartiesH. G. KLEINSCHMIDT, Respondent, v. R. E. SCRIBNER, Appellant
CourtUnited States State Supreme Court of Idaho

EVIDENCE-LAWS OF OTHER STATES-JUDICIAL NOTICE-PROOF OF OFFICIAL DOCUMENTS - INSTRUCTIONS - INVITED ERROR - EXHIBITS - MAPS AND CHARTS-ADMISSIBILITY.

1. Idaho courts will not take judicial notice of laws of sister state.

2. Certified copy of report of automobile accident, made under Oregon Laws, held inadmissible as copy of official document or of public record of private writing, because not certified by legal keeper of the record, copy being certified only by chief clerk of Oregon department of state police (I. C. A sec. 16-313, subd. 7, and sec. 16-314).

3. Erroneous admission of improperly authenticated copy of Oregon automobile accident report held prejudicial, though other purported copy was admitted without objection, where discrepancies appeared between drawings of scene of accident on back of report (I. C. A., sec. 16-313, subd. 7, and sec 16-314).

4. Where, under governing Oregon law, speed of automobile in excess of statutory "indicated speed" of forty-five miles per hour was unlawful only if driver was violating basic statutory rule respecting reasonable speed, instruction that it was lawful to drive at speed not exceeding 45 miles held harmfully misleading as permitting inference that higher speed would necessarily be unlawful, and error was not invited or waived by defendant's requested instruction (Laws Or. 1931, p. 637, sec. 20).

5. Rule that error is invited and thereby waived when requested instruction is substantially same as given instruction is applicable when error in given instruction is some new and distinct error imported into it.

6. Maps and charts may be admitted, in trial court's discretion for purpose of illustrating relative location of objects involved and to aid jury in that regard, and their admission will not be deemed erroneous in absence of showing of abuse of discretion.

7. Where map is admitted for purpose of illustrating testimony of relative location of objects involved, better practice is not to permit any writing thereon about which there is dispute to be considered by jury.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. A. O. Sutton, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Reversed and remanded for new trial.

Reversed and remanded with instructions. Costs awarded to appellant. Petition for rehearing denied.

Smith & Smith and Frank D. Ryan, for Appellant.

A map, plat or exhibit must not contain matters thereon which may be taken by the jury as evidence. Plaintiff's Exhibit "A" contained written statements thereon on various phases of the case that went to vital points of difference between the testimony of witnesses for plaintiff and those of defendant. This exhibit was admitted while the plaintiff was on the stand and there is no evidence to show that the exhibit was prepared by him or under his direction, and consequently the things shown thereon are simply hearsay. (Silvey v. Harm, 120 Cal.App. 561, 8 P.2d 570; 22 C. J. 913; Zinser v. Chicago Sanitary Dist., 175 Ill.App. 9.)

Plaintiff's Exhibit "E" is an alleged certified copy of a report of the accident by defendant to the Secretary of State of Oregon under section 55-518, Oregon Code, 1930. Under this section such report is not admissible in evidence for any purpose in any trial, either civil or criminal.

Also this exhibit is not certified in accordance with subdivision 7, section 16-313, I. C. A., and was not admissible for that reason, and also put the plaintiff in the position of impeaching his exhibit "E" with exhibit "D." (Sec. 55-518, Oregon Code, 1930; subdivision 7, sec. 16-313, I. C. A.) George Donart, for Respondent.

Public record of a private writing is proven by a copy certified by the legal keeper thereof. (Sec. 16-314, I. C. A.; People v. Hagar, 52 Cal. 171.)

The error, if any, in admission of evidence is harmless and does not constitute reversible error, if the facts involved are fully and clearly established by other competent evidence. (Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616; 4 C. J. 975; Rio Grande Oil Co. v. Upton Oil Co., 33 Ariz. 474, 266 P. 3.)

BUDGE, C. J. Givens, Holden and Wernette, JJ., concur. MORGAN, J., Dissenting.

OPINION

BUDGE, C. J.

On November 3, 1931, appellant, driving his automobile on a rural highway about two miles south and west of the city of Ontario, and within the state of Oregon, struck respondent who was walking across said highway. Thereafter respondent brought this action for damages because of personal injuries alleged to have been sustained, alleging, among other things, that appellant was driving at a terrific and dangerous rate of speed, or about sixty miles per hour. From a judgment entered upon a verdict in favor of respondent and from an order denying appellant's motion for new trial this appeal is prosecuted.

Of the several errors assigned three only need be discussed. Assignment of error number two seeks to predicate error upon the admission in evidence, over appellant's objection, of respondent's exhibit "E," one of the reasons specified being that the same was not so certified as to entitle it to admission as a certified copy. Exhibit "E" purports to be a certified copy of a report of accident made by appellant shortly after the accident in conformity with the requirements of the laws of the state of Oregon. When exhibit "E" was offered counsel for appellant made the following objection thereto:

"I have an objection in mind. I do not have the statute; but, it does not comply with the statutes of Idaho in that it does not appear that the officer making the certification had custody of the records and he does not state he is in custody of the records but is merely the Chief Clerk, and, there is no certification he is the officer, and under the laws of the State of Idaho the certification must be made by the Secretary of State or some person having knowledge of the fact."

The objection was overruled and the court admitted the whole of exhibit "E" in evidence. The point is sought to be made that the certificate attached to exhibit "E" does not comply with the provisions of I. C. A., section 16-313, subdivision 7, in that there is no certificate of the Secretary of State or other designated officer, certifying that the copy is duly certified by the officer having the legal custody of the original. I. C. A., section 16-313, provides in part as follows:

"Other official documents may be proved as follows: . . . .7. Documents of any other class in another state or territory, by the original, or by a copy, certified by the legal keeper thereof, together with the certificate of the secretary of state, judge of the Supreme, district, superior or county court, or mayor of a city of such state or territory, that the copy is duly certified by the officer having the legal custody of the original."

Exhibit "E" is not an original but admittedly a copy, and, an examination of the certificate attached thereto discloses that, if said exhibit comes within the class of documents referred to in I. C. A., section 16-313, and subdivision 7 thereof, it is not certified in the manner prescribed since there is no certificate by the Secretary of State or other designated officer certifying "that the copy is duly certified by the officer having the legal custody of the original." The only certificate to exhibit "E" recites as follows:

"I, H. G. Maison, Chief Clerk, Department of State Police of the State of Oregon, do hereby certify:

"That I have carefully compared the annexed copy of Accident Report dated November 3, 1931, with the original thereof which is on file in the office of the Department of State Police of the State of Oregon and that the same is a full, true and correct transcript therefrom and of the whole thereof, together with all endorsements thereon.

"H. G. MAISON,

"Chief Clerk,

"Department of State Police."

It is urged by respondent that exhibit "E" is not, however, an official document, but, is a public record of a private writing and its authentication is to be governed by the provisions of I. C. A., section 16-314, which provides as follows:

"A public record of a private writing may be proved by the original record, or by a copy thereof, certified by the legal keeper of the record."

Whether exhibit "E" was an official document within the meaning of I. C. A., section 16-313, or a public record of a private writing within the meaning of I. C. A., section 16-314, it purported to be, in either case, a certified copy of a record of the state of Oregon requiring the certification of the officer of the state of Oregon who was the legal keeper of the record. A portion of appellant's objection to the admission of this exhibit was that: "It does not comply with the statutes of Idaho in that it does not appear that the officer making the certificate had custody of the record." It is well settled that the courts of this state will not take judicial notice of the laws of a sister state. (Cummings v. Lowe, 52 Idaho 1, 10 P.2d 1059; Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, 47 L. R. A., N. S., 634.) The only evidence in the record showing or tending to show who was the legal keeper of the record is that excerpt from the laws of Oregon printed upon the back of exhibit "E" and likewise upon Respondent's Exhibit "D," which latter exhibit was admitted without objection, and contains the following excerpt:

"NOTE: The driver of any vehicle involved in an accident resulting in injuries or death to any person, or property damage, shall, within 24 hours, forward a report of such accident to the sheriff of the...

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15 cases
  • Hayward v. Yost
    • United States
    • Idaho Supreme Court
    • 3 Abril 1952
    ...aid the jury. Proper foundation was laid for the admission of such exhibit, and its admission was not erroneous. Kleinschmidt v. Scribner, 54 Idaho 185, 30 P.2d 362; Papesh v. Weber, 27 Idaho 557, 149 P. 1064; see also 22 C.J. Sec. 1114, p. 910, 32 C.J.S., Evidence, § Appellants assign as e......
  • McKee v. Chase
    • United States
    • Idaho Supreme Court
    • 20 Febrero 1953
    ...one marked 'Exhibit 18' we do not regard as of such character as to render it inadmissible within the admonition of Kleinschmidt v. Scribner, 54 Idaho 185, 30 P.2d 362. The legends here considered concern only the physical characteristics of the gouge marks. If such characteristics are conf......
  • Treinies v. Sunshine Mining Co
    • United States
    • U.S. Supreme Court
    • 6 Noviembre 1939
    ...& Metals Nat. Bk. v. Pingree, 40 Idaho 118, 129, 232 P. 5; State v. Martinez, 43 Idaho 180, 192, 250 P. 239; Kleinschmidt v. Scribner, 54 Idaho 185, 189, 30 P.2d 362. While none of these cases involved a stipulation, the decision of the Supreme Court of Idaho (Mason v. Pelkes, 57 Idaho 10, ......
  • Mason v. Pelkes
    • United States
    • Idaho Supreme Court
    • 23 Julio 1936
    ... ... 5; State v ... Martinez , 43 Idaho 180, 250 P. 239; Cummings v ... Lowe , 52 Idaho 1, 10 P.2d 1059; Kleinschmidt v ... Scribner , 54 Idaho 185, 30 P.2d 362.) ... Certain ... constitutional and statutory provisions of Washington were ... alleged by ... ...
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