Moncrief v. City of Detroit

• Citation: 398 Mich. 181,247 N.W.2d 783
• Decision Date: 07 December 1976
• Docket Number: No. 6,6
• Parties: Willie MONCRIEF, Plaintiff and Appellant, v. CITY OF DETROIT, a Municipal Corporation, Department of Street Railways, Defendant and Appellee. 398 Mich. 181, 247 N.W.2d 783
• Court: Supreme Court of Michigan

Page 783

247 N.W.2d 783

Willie MONCRIEF, Plaintiff and Appellant, v. CITY OF DETROIT, a Municipal Corporation, Department of Street Railways, Defendant and Appellee.

No. 6.

398 Mich. 181, 247 N.W.2d 783

Supreme Court of Michigan.

Dec. 7, 1976.

Posner, Posner & Posner, Detroit, for plaintiff and appellant.

City of Detroit Law Dept., Kermit G. Bailer, Corp. Counsel, Jack F. Weiss, Asst. Corp. Counsel, Detroit, for defendant and appellee.

COLEMAN, Justice.

The parties propose two dispositive issues: ¹

1. Did the trial court err in refusing to consider the police officer's testimony regarding the contents of the police report on the issue of negligence?

2. Did the trial judge err in ruling that the facts did not support a finding of negligence on behalf of the bus driver?

We find that the judge did not err in either instance and therefore affirm the Court of Appeals.

I--Facts

The appeal revolves around the testimony of three persons--plaintiff, the bus driver and a police officer.

Plaintiff testified that on January 7, 1968 she was a passenger on a bus operated by defendant. She stated that the weather conditions included 'sleeting and snowing and raining'. When her attorney asked about the incident, she replied:

'A. Well, this bus driver--all I know, when I knowed anything, I was on the aisle in the bus, but what happened I don't know.

'Q. You don't know?

'A. No, I don't.

'Q. Now, do you know what speed the bus was driving at?

'A. No, I don't.

'Q. Do you know whether he was driving slow, medium or fast?

'A. He was driving kinda fast, but I don't know how many miles he was going though.'

After further questioning, counsel elicited testimony that the bus was 'going wigwag', that she fell from her seat and that the bus drove up and stopped on the shoulder of the street.

On cross-examination plaintiff could not recall the name of the street where the accident occurred, distance of the accident from the corner, or the lane in which it happened. It was revealed that the bus had stopped several times prior to the accident without incident. Plaintiff also indicated, contradicting earlier testimony, that the bus was traveling south on Beaubien.

Plaintiff's attorney next introduced testimony from the police officer investigating the accident. The officer had a photostatic copy of the accident report and defendant objected to the testimony because the officer did not have the original. Plaintiff's attorney stated: 'I am not introducing the original. He can refresh his memory from anything he wants.' The trial court responded: 'He can testify from memory as to what happened; whatever papers he has.' The court further noted: 'I don't know what it is. He can use anything that he did to refresh his memory.' The officer indicated that he did not have any notes independent of the accident report, but that the report was in his own handwriting.

During the ensuing examination of the police officer, it became apparent that he had no independent recollection of the events surrounding the accident. The trial court observed that the officer was able to give testimony only by direct reference to the report, and concluded that his present memory of the accident was exhausted. Because the report was neither offered nor admitted into evidence, and no other foundation was laid for its use, the trial court disregarded the officer's testimony.

The third portion of disputed testimony came from the bus driver. He testified that there was packed snow on the street, that he was traveling at 10--15 miles per hour, had made several stops without incident and began to slow down preparing to stop for a traffic light one block ahead. There was no back and forth movement of the bus. The bus was in the curb lane and it touched the curb (but did not go over it). He applied the brakes, the bus traveled about 5 more feet and came to a stop on a dry spot. When the bus stopped, passengers brought to the driver's attention that a lady had fallen.

The trial court returned a judgment of no cause of action. In so holding, he found the bus driver to be a more credible witness than plaintiff:

'The testimony of Mrs. Moncrief is, at best, sketchy, it isn't her fault, she cannot remember the events of January 7th, 1968. Not only can she not remember where she got on the bus, she cannot remember where it happened. I tried to find out when the bus swerved, how long before the accident it began to swerve. I couldn't nor counsel, find out what she meant by 'too fast.'

'Her testimony is such that she simply says the bus was going too fast. She testified it swerved back and forth and in the next breath she would say she didn't remember anything about it because she couldn't remember anything after she fell. I questioned her three different times and had to remind her that she testified last Thursday the bus had swerved, today she didn't know that.

'I don't know if she knows what happened that day and it simply is the law that the plaintiff must prove the case, the defendant doesn't have to prove anything. The plaintiff has to prove the operator was driving at a speed inconsistent what that of a normal, ordinary, prudent person and I don't know if he was doing that or not because I don't think that her testimony is too reliable on other things.'

In regard to negligence, the court stated:

'I don't believe there is any liability on the part of the defendant because I can't find negligence. I can't find that merely because an accident happened gives cause of negligence. The simple fact that a bus hit the curb does not make it negligence, that can happen.'

Further, considering the driver's actions leading up to the stop, the court stated, 'I don't know what more a man can do.'

Plaintiff subsequently made a motion for new trial, which was granted by the trial court. The court later vacated the order for new trial, holding that there was no negligence and that the police officer's testimony and report were properly excluded. The Court of Appeals affirmed and this Court granted leave to appeal.

II--Police Report

There has been much confusion in this state regarding the use of police accident reports as evidence in trial.

To maintain perspective, it is necessary to review some 'first principles'. Because police reports are generally offered to prove the truth of their contents, their use as evidence at trial constitutes hearsay. Therefore, before they may be admitted into evidence, read into the record, or read to the fact finder by a witness in the course of his testimony, the proponent of the evidence must lay a foundation which establishes an exception to the hearsay rule.

The police report is a writing. It could be admitted into evidence as an exhibit if the proponent can show that it meets the requirements of the business records exception. However, because of the 'nature' of police business and the circumstances under which such reports are usually made, the possibility of police reports so qualifying is unlikely. ² Nevertheless, the report could be received into evidence if the proponent is able to demonstrate that the report constitutes its author's past recollection recorded. We reviewed the requirements of this hearsay exception in Jaxon v. Detroit, 379 Mich. 405, 151 N.W.2d 813 (1967), a case dealing with the use of police accident reports at trial.

'To qualify a writing otherwise objectionable as hearsay to be admitted in evidence as a past recollection recorded, a proper foundation must be laid. That foundation should consist in the following: (a) a showing that the witness has no present recollection of the facts, (b) a showing that the witness' memory is not refreshed upon reference to the document, (c) a showing that the document is an original memorandum made by the witness from personal observation, (d) a showing that the document was prepared by the witness contemporaneously with the event and was an accurate recording of the occurrence and, (e) a showing that the substance of the proffered writing is otherwise admissible.' (p. 413, 151 N.W.2d p. 816.)

In this case, the first element was adequately established in the record but the report was purportedly a photostat of one in the officer's own handwriting which plaintiff's counsel said he was not introducing into evidence but using to refresh the officer's memory. Also there was no attempt by plaintiff's counsel to show that the document was made by the witness from personal observation or was prepared contemporaneously with the event and based on his personal knowledge rather than, for example, statements of bystanders or witnesses. The report would not have been admissible if plaintiff would have offered it as part recollection recorded because no adequate foundation was laid.

Finally, the report could have been properly used by the witness to refresh his recollection if the appropriate foundation was established. To permit the use of a writing in order to refresh the memory of a witness, the proponent must show: (1) that the witness' present memory is inadequate; (2) that the writing could refresh the witness' present memory; and (3) that reference to the writing actually does refresh the witness' present memory. ³ in this case, the trial court correctly found that the third element of this foundation was not established. The officer's reference to his report did not refresh his present memory. Further testimony based on the police report absent its qualification as an item of evidence as set forth above was properly disregarded by the trial court.

We mention in passing that M.C.L.A. § 257.622; M.S.A. § 9.2322 and M.C.L.A. § 257.624; M.S.A. § 9.2324 have no application in this case. These statutes deal with reports by local police to the Director of State Police concerning accidents resulting in injury, death or property damage in excess of $200. These particular reports, commonly referred to as 'red-line' reports, are made on forms supplied to the local police agencies...