McGrath v. Mance, 44019

• Decision Date: 10 April 1965
• Docket Number: No. 44019,44019
• Citation: 400 P.2d 1013,194 Kan. 640
• Parties: Olive M. Yankoviz McGRATH, Appellant, v. Joseph Charles MANCE, Appellee.
• Court: Kansas Supreme Court

Page 1013

400 P.2d 1013

194 Kan. 640

Olive M. Yankoviz McGRATH, Appellant, v. Joseph Charles MANCE, Appellee.

No. 44019.

Supreme Court of Kansas.

April 10, 1965.

Syllabus by the Court

1. A police report of an accident investigation which contains statements of a hearsay character and conclusions on the part of the officer preparing the report, is not admissible as substantive evidence.

2. Out-of-court statements previously made by a witness which conflict with his testimony given at the trial are admissible to impeach his credibility.

3. The record is examined and it is held that the testimony of a police officer was not in conflict with a prior accident report prepared by him and that the report was erroneously admitted in evidence.

Buford L. Shankel, Overland Park, argued the cause, Buford E. Braly, Kansas City, with him on the briefs, for appellant.

J. Milton Sullivant, Kansas City, argued the cause, Lewis C. Smith, Gerald L. Rushfelt, Clifford T. Mueller, Richmond M. Enochs, Jr., and Ralph D. Lamar, Kansas City, with him on the briefs, for appellee.

FONTRON, Justice.

This is an action to recover damages resulting from an automobile collision occurring in Kansas City, Kansas. The case was tried to a jury which returned a verdict in favor of the defendant and the plaintiff has perfected her appeal to this court.

It is necessary to summarize the evidence only as it depicts the conflicting contentions of the litigants. The only point on which the parties are in agreement is that the accident occurred on Wood Avenue, along the north curb of which the plaintiff had parked her automobile, and on which the defendant was driving his car in a westerly direction.

Evidence on the part of the plaintiff tended to show that on returning to her car, which was headed west, the plaintiff backed eight or ten feet east along the curb and then shifted into the 'drive' gear; that before moving forward she heard a horn, put her foot on the brake and looked to the rear where she saw the defendant's car coming from the east; that she remained standing still to allow the defendant's car to pass; and that while she was so stopped, the defendant's car struck her automobile at the left rear fender.

Conversely, the defendant's evidence was to the effect that the plaintiff's automobile had pulled away from its parked position at the curb and was moving out into the traveled portion of Wood Avenue; that her automobile was headed in a southwesterly direction and was blocking the defendant's lane of traffic at the time of impact; and that the right front part of defendant's car collided with the left front of plaintiff's automobile, after which the back parts of the cars slapped together.

The question presented by this appeal is whether it was error for the trial court to admit into evidence a report of the accident prepared by one of the investigating police officers.

The admission of the report came about in this manner. Harry G. York, the officer in question, was called by the plaintiff as a witness and testified on her behalf. During the course of his direct examination, he was handed his report of investigation for use in refreshing his recollection. As part of York's cross-examination, the police report was offered as a defense exhibit and, over the plaintiff's objection, was admitted into evidence.

The admissibility of a police officer's report of an accident investigation presents no new or novel problem in this jurisdiction. In three recent cases the question has been before this court for consideration and has been passed upon. (Morlan v. Smith, 191 Kan. 218, 380 P.2d 312; Allen v. Ellis, 191 Kan. 311, 380 P.2d 408; Letcher v. Derricott, 191 Kan. 596, 383 P.2d 533.) Without attempting a detailed analysis of each decision, we deem it sufficient to say...