Lobree v. Caporossi, 2502

• Decision Date: 14 March 1962
• Docket Number: No. 2502,2502
• Parties: Harold S. LOBREE, as personal representative and administrator of the Estate of Maurice Lobree, Deceased, Appellant, v. Michael F. CAPOROSSI, Appellee.
• Court: Florida District Court of Appeals

Page 510

139 So.2d 510

Harold S. LOBREE, as personal representative and administrator of the Estate of Maurice Lobree, Deceased, Appellant, v. Michael F. CAPOROSSI, Appellee.

No. 2502.

District Court of Appeal of Florida, Second District.

March 14, 1962.

Rehearing Denied April 9, 1962.

Gardner W. Beckett, Jr., of Askew & Beckett; and Mann, Harrison, Mann & Rowe, St. Petersburg, for appellant.

H. Rex Owen of Bussey, Simmons & Owen, St. Petersburg, for appellee.

SMITH, Judge.

This is an action of the appellant as plaintiff against the appellee as defendant on a complaint for damages for the death of Maurice Lobree, alleged to have been caused by the negligence of the defendant as the result of an automobile accident. At the trial, the plaintiff called two police officers of the City of St. Petersburg. In the course of the preliminary examination of the first officer, he testified:

'I recall from having made an accident report on that date that the weather was cloudy and the streets were dry.'

The defendant then requested the withdrawal of the jury, and in their absence propounded questions which revealed that this officer, after call, proceeded to the scene of this accident, investigated, and subsequently made a written accident report. The officer then stated:

'My testimony will be based on my own recollection. However, my memory was refreshed by reading the accident report prior to the deposition taken.'

He further testified to the effect that at the time of taking a prior deposition, and again prior to the time of the trial, he found it necessary to refer to the accident report which he made in order to remember some of the details which he observed in the course of his investigation of the accident. The defendant then objected to the question propounded to the witness and objected to any further questions on the ground that it affirmatively appeared that the witness made an accident report which is privileged and that such an accident report may not be used to refresh the memory of the witness. The court sustained the objection. None of the questions propounded to the witness pertained to any conversations or information furnished to the officer by the defendant (as in Ippolito v. Brener, Fla.1956, 89 So.2d 650), nor did they pertain to statements made by one officer and incorporated in another officer's official report (as in Stevens v. Duke, Fla.1949, 42 So.2d 361), and neither did they pertain to testimony overheard by the witness while being made to an officer (as in Herbert v. Garner, Fla.1955, 78 So.2d 727). The plaintiff made a proffer of the testimony of the other police officer and the same objection was made and sustained. They, by stipulation, the plaintiff made a proffer of all of his evidence pertaining to damages. The plaintiff then announced that he had no further testimony to offer and rested; whereupon, upon motion of the defendant, the court directed a verdict in favor of the defendant upon which final judgment was entered and the plaintiff appeals.

The objections to the testimony of the officers was sustained by the court on the basis of the opinion of the Supreme Court of Minnesota, Hickok v. Margolis, 1946, 221 Minn. 480, 22 N.W.2d 850, the court being of the opinion that the Minnesota Statutes and the Florida Statutes were similar and that the court was bound by the Minnesota opinion even though the court stated that it was its own opinion that such testimony should be permitted. Opinions from other jurisdictions are not binding upon the courts of this state, but are only persuasive. Stevens v. Duke, supra.

In Hickok v. Margolis, supra, the Supreme Court of Minnesota took the view that officers' reports were privileged under the Minnesota Statutes. From this, that court concluded that the testimony of an officer was also inadmissible where he had refreshed his recollection by use of notes made at the accident in connection with his privileged report. Subsequently, in Garey v. Michelson, 1949, 227 Minn. 468, 35 N.W.2d 750, that court noted that the legislature of Minnesota had changed the Statutes to make it clear that the legislature intended testimony of that kind to be admissible and held that an officer may use his notebook to refresh his memory where he was testifying to facts within his knowledge.

Section 317.13, Florida Statutes, F.S.A. requires the driver of a vehicle involved in an accident resulting in injury to, or death of, any person or certain property damages to make a written report of such accident to the Department of Public Safety. It permits the Department to require any driver of a vehicle involved in an accident who must make a report to file supplemental reports and the Department may require witnesses of such an accident to render reports. Subsection (3) is as follows:

'Every law enforcement officer who, in the regular course of duty, investigates a motor vehicle accident of which report must be made as required in this section, either at the time of and at the scene of the accident, or thereafter by interviewing participants or witnesses shall, within twenty-four hours after completing such investigation, forward a written report of such accident to the department.' Section 317.17, Florida Statutes, F.S.A., is as follows:

'All accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other state agencies having use of the records for accident prevention purposes, except that the department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when...