McGraw v. Horn, 19513

• Decision Date: 06 June 1962
• Docket Number: No. 2,No. 19513,19513,2
• Citation: 134 Ind.App. 645,183 N.E.2d 206
• Parties: Katherine McGRAW, Appellant, v. Roy Francis HORN, Appellee
• Court: Indiana Appellate Court

Page 206

183 N.E.2d 206

134 Ind.App. 645

Katherine McGRAW, Appellant, v. Roy Francis HORN, Appellee.

No. 19513.

Appellate Court of Indiana, Division No. 2.

June 6, 1962.

Rehearing Denied July 10, 1962.

Sydney L. Berger, Evansville, for appellant.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellee.

PFAFF, Judge.

Appellant brought this action against appellee to recover damages for injuries received when the automobile in which she was riding and an automobile being driven by appellee were involved in a collision at the intersection of Madison Avenue and South Harlan Avenue in the city of Evansville, Indiana. The cause was originally filed in the Vanderburgh Probate Court and venued to the Posey Circuit Court. Trial by jury resulted in a verdict for the appellee and consistent judgment was entered thereon.

Alleged errors urged are the admission of certain evidence, the giving of appellee's instruction No. 17, and the failure to give appellants' instruction No. 4.

It appears from the evidence that at the time of the accident appellant was riding in an automobile driven by one Tommy Smith, who it not a party to this action nor was he a witness for either appellant or appellee at the trial. Appellant testified that she did not know of his whereabouts but heard that he had left the state and was living somewhere in the State of Michigan.

The evidence further reveals that a half hour or more after the accident the appellant and Smith were in the emergency room of the St. Mary's Hospital, a fairly large room, where a police officer talked with Smith. The officer testified that he could not say if appellant heard the conversation. Over appellant's objection, the police officer was permitted to testify as to the conversation with Smith to the effect that Smith said that he saw appellee's car approaching the intersection; that he did not see the Yield Right of Way sign; that he was unfamiliar with the neighborhood and that he attributed that factor for his failure to see the sign. As a result of the officer's investigation, both at the scene of the accident and at the hospital, he issued a ticket to Smith for failure to yield right of way.

The basis of appellant's objection to the court's ruling is that the evidence was hearsay and inadmissible. The evidence contains statements by Smith, driver of the car in which appellant was riding, but who was not a party to this action. It is undisputed that these statements were made out of the immediate presence of and not heard by the appellant; that they were made long after the accident and therefore not part of the res gestae. Appellant further contends that the law of this state is clear that such hearsay statements made by a witness to an accident who was not a party is inadmissible as hearsay unless it comes within an exception to the hearsay rule.

In Liberty Coach Co., Inc. v. Butts (1956), 126 Ind.App. 515, 523, 132 N.E.2d 149, 133 N.E.2d 66, this court said: 'Generally speaking, the rights of an individual cannot be affected by written communications or statements of persons who act in an unofficial capacity in respect of matters to which he is a stranger. They are nothing more than hearsay and res inter alios. Hegler v. Faulkner, 1893, 153 U.S. 109, 14 S.Ct. 779, 38 L.Ed. 653; Bates v. Preble, 1893, 151 U.S. 149, 14 S.Ct. 277, 38 L.Ed. 106; State v. Rozeboom, 1910, 145 Iowa 620, 124 N.W. 783, 29 L.R.A.,N.S., 37. The reason being for this rule is the principle that unsworn written statements of living persons who may be produced in court as witnesses are not admissible.' The court also pointed out that if such statements were admissible cross-examination of the maker of the statements was not possible. Even though right and justice prevailed, as appellee contends, such facts, however highly motivated they may be, do not liberalize the long established rules of admission of evidence.

It is stated in 20 Am.Jur., Evidence, § 556, p. 467, as follows:

'An important exception to the hearsay rule is that which pertains to declarations against interest. The general rule is that a declaration against the interest of the person making it is admissible in evidence, notwithstanding its hearsay character, if the declaration is relevant and the declarant has died, become insane, or for some other reason is not available as a witness. On the other hand, declarations against interest are not admissible if the declarant is available as a witness. There is authority to the effect that the absence of a declarant from the jurisdiction does not render him unavailable within this rule. Furthermore, in order that such a declaration may be admitted in evidence, the statement must have been against the pecuniary or proprietary interest of the declarant. The fact that the declaration would probably subject the declarant to a criminal liability is not sufficient to render it admissible as against interest. In addition to the foregoing conditions, some authorities state that admissibility of a declaration against interest depends upon the declarant's knowledge of the facts stated and the absence of a motive on his part to falsify. The true test in reference to the reliability of the declaration is not whether it was made ante litem motam, as is the case with reference to some classes of hearsay evidence, but whether the declaration was uttered under circumstances justifying the conclusion that there was no probable motive to falsify. In fact, declarations against interest are generally admitted without reference to the time at which they were made. The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further, that the reliability of such declarations is generally to be depended upon since a person does not ordinarily assert facts which are against his own pecuniary interest. A declaration against interest is admissible notwithstanding the declarant is neither a party nor in privity with a party to the action.'

With reference to the above quoted statement that the fact that the declaration would probably subject the declarant to a criminal liability is not sufficient to render it admissible as against interest, it is stated in the cumulative supplement to this work that: 'However, a number of cases, and probably the modern trend, is to the contrary.'

In 31 C.J.S. Evidence § 219, p. 962, discussing the nature of the interest of the declarant, it is stated: 'Accordingly an unsworn statement of a third person is not admissible merely because it appears to have been against the interest of the declarant by subjecting him to a civil action or to a criminal prosecution.' The cumulative pocket part cites cases where a penal interest was involved, some of which hold that a penal interest is sufficient to render the declaration admissible.

In the American Law Institute Model Code of Evidence, Rule 509, p. 255, Comment a., appears the following comment: 'The great majority of decisions admit only declarations against pecuniary or proprietary interest. They definitely reject declarations against penal interest.'

Where declarations of persons not parties to the action or witnesses at the trial are received they are 'generally considered a weak class of evidence, by reason of the fact that the party making them may not have clearly expressed his meaning, or may have been misunderstood, or the witness, by unintentionally altering a few words of the expressions really used, may give an effect to a declaration completely at variance with what the party did actually say.' The weight, however, is for the trier of the facts. Culp et al. v. Wilson (1893), 133 Ind. 294, 296, 32 N.E. 928.

In Keesling, Treasurer, et al. v. Powell (1898), 149 Ind. 372, 373, 49 N.E. 265, 266, which was an action by appellee against the treasurer, auditor and commissioners of Cass County to enjoin the sale of certain real estate for alleged delinquent taxes, the issue was whether the taxes in question had been paid. Appellee was permitted to testify that before purchasing the property he inquired of a deputy treasurer, since deceased, whether the taxes had been paid and was assured that they had been. Our Supreme Court said:

'The evidence shows that the deceased deputy treasurer whose declarations were put in evidence had the requisite means of knowing whether the matter declared was true. It also appears that it would be against the interest of the deputy treasurer, who practically performed all the duties of the county treasurer, to admit or declare that these taxes had been paid if they in fact had not. It might result in making the treasurer liable on his bond for the same, and the deputy liable to the treasurer, if in fact they had been paid to the deputy treasurer. In Royse [Exr.] v. Leaming, 72 Ind. , at page 184, Woods, J., speaking for the court, said: 'If the action of the court in admitting this testimony can be upheld, it must be on the ground that the declarations in question were secondary evidence, receivable only because of the death of the person who made them. Upon this subject the following language is found in 1 Greenl.Ev. § 147: 'This class embraces, not only entries in books, but all other declarations or statements of facts, whether verbal or in writing, and whether they were made at the time the fact...