Mucci v. LeMonte

• Decision Date: 26 February 1969
• Court: Connecticut Supreme Court
• Parties: Stefanie MUCCI v. Nicholas LeMONTE.

Page 879

254 A.2d 879

157 Conn. 566

Stefanie MUCCI v. Nicholas LeMONTE.

Supreme Court of Connecticut.

Feb. 26, 1969.

John J. Mahon, Manchester, for appellant (plaintiff).

Wayne G. Tillinghast, Norwich, for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

THIM, Associate Justice.

The plaintiff sought damages for personal injuries which resulted from a collision between an automobile owned by her and operated by her husband and an automobile owned and operated by the defendant. The jury returned a verdict for the defendant on the complaint and found the issues in favor of the defendant on his counterclaim for property damage. From the judgment thereon, the plaintiff has taken this appeal, claiming that the court committed error by admitting into evidence a police report concerning the collision.

During the trial, daniel Driscoll, a police officer, testified that he and Daniel Murtha, another officer, arrived at the scene of the accident before the vehicles had been moved. Driscoll directed traffic while Murtha investigated the accident. Murtha made out and signed the police report of the accident; he was, however, unavailable to testify because he had died before the trial. Driscoll had the police report with him at the trial, and he stated that it was made in the regular course of police work and that it was in the ordinary course of police business to make such records. Thereupon, the defendant offered the report as a business entry of the Norwich police department pursuant to § 52-180 of the General Statutes.

Although she conceded that the report was a business entry, the plaintiff objected to its admission on the ground that the defendant did not show the source of Murtha's information which formed the basis for the report. The court overruled the plaintiff's objection and admitted the entire police report as a business record of the police department. Immediately thereafter, the plaintiff objected to a portion of the report, stating that it was her only objection and that she had no objection to the rest of the report. Thereupon, the court deleted the portion to which the plaintiff specifically objected.

The police report contained items which were based on Murtha's own personal observation, such as the condition of the weather and the road surface, the time of day and the location of the vehicles when Murtha arrived at the scene. Moreover, Murtha concluded in the report that the driver of the vehicle in which the plaintiff was riding had failed to yield the right of way and that the defendant's vehicle had entered the intersection first. Murtha's opinions might have been based, at least in part, on information which Murtha had received from those who witnessed the accident because he was not present at the time of the collision.

The trial court did not commit error by overruling the plaintiff's objection and admitting the police report into evidence. A police report may be admitted as a business entry once the court finds that the requirements of General Statutes § 52-180 have been satisfied. Szela v. Johnson Motor Lines, Inc., 145 Conn. 714, 723, 146 A.2d 910. The fact, however, that a report is generally admissible under § 52-180 does not require that everything contained in the report be admitted into evidence. General Motors Acceptance Corporation v. Capitol Garage, Inc., 154 Conn. 593, 597, 227 A.2d 548; Maggi v. Mendillo, 147 Conn. 663, 667, 165 A.2d 603. For an item contained in a report to be admissible, it must be based on the entrant's own observation or on information of others whose business duty it was to transmit it to the entrant. D'Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893. Moreover, a police officer's conclusion about the cause of or responsibility for an injury is merely an opinion which the officer would not be permitted to give if he was on the witness stand. Giamattei v. DiCerbo, 135 Conn. 159, 163, 62 A.2d 519. There is all the more reason for excluding such an opinion when the officer is not under oath and subject to cross-examination. Note, 69 A.L.R.2d 1148, 1152; 30 Am.Jur.2d, Evidence, § 1002.

We shall not, however, order a new trial on the basis of the plaintiff's claim that the court committed error by failing to exclude from the report the officer's conclusions concerning the cause of the accident because the plaintiff did not make this claim before the trial court. Practice Book § 652; State v. Reid, 146 Conn. 227, 232, 149 A.2d 698; Brown v. Connecticut Light & Power Co., 145 Conn. 290, 294, 141 A.2d 634; Salvatore v. Hayden, 144 Conn. 437, 443, 133 A.2d 622; Sanderson v. Bob's Coaster Corporation, 133 Conn. 677, 681, 54 A.2d 270; Petrillo v. Kolbay, 116 Conn 389, 395, 165 A. 346. The trial court was not alerted to the claim which the plaintiff is now making to us. If the plaintiff had made, at the trial, the objection which she is now urging before us, the portion objected to should and probably would have been deleted or the jury charged concerning the matter. Guarnaccia v. Wiecenski, 130 Conn. 20, 25, 31 A.2d 464.

At the trial, the plaintiff's objection to the report was a general one, addressed to the report in its entirety. The purport of the objection was that the entire report could not be received into evidence until the defendant showed the source of Murtha's information for each of the items contained in the report. There is no merit to this claim.

The police report was generally admissible if it was made in the regular course of business, if it was the regular course of business to make such a record, and if the record was made when the act, transaction or event occurred or within a reasonable time thereafter. Szela v. Johnson Motor Lines, Inc., supra. If any portions of the report were not admissible, it was incumbent upon the objecting party to point out the inadmissible parts with specificity and to give reasons why the specified parts were not admissible. Lewis v. Havens, 40 Conn. 363, 369; Bissell v. Beckwith, 32 Conn. 509, 518; State v. Alford, 31 Conn. 40, 45; Ashmead v. Colby, 26 Conn. 287, 309. The finding does not disclose whether the trial court examined the report or whether the court was requested to do so before making its ruling. In any event, it was not the court's duty to separate the inadmissible parts of the report from the admissible parts. McCormick, Evidence § 52, pp. 119, 120.

In the instant case, the plaintiff made a general objection and failed to specify the inadmissible portions of the report. Under these circumstances, if any portion of the report is admissible, such a general objection is not well taken. Bradbury v. Bardin, 35 Conn. 577, 582; Morehouse v. Northrop, 33 Conn. 380, 387; Fitch v. Woodruff & Beach Iron Works, 29 Conn. 82, 91. The trial court was correct in overruling the plaintiff's gneral objection because many of the items contained in the report were clearly admissible.

Because of the view which we have taken in deciding this case, it is unnecessary to discuss the second claim pursued in the plaintiff's brief.

There is no error.

In this opinion KING, C.J., and HOUSE, J., concurred.

RYAN, Associate Justice (dissenting).

I am unable to agree with the majority opinion that the plaintiff's objection to the admissibility of the police record was general and that the trial court was not sufficiently alerted to the claim which the plaintiff is now making to us. Police officers Murtha and Driscoll arrived at the scene of the accident after it occurred. Murtha, who investigated the accident and made out the police report, died before trial. Driscoll testified on direct examination by the defendant that he was with Murtha in a police car when they went to the scene of the accident. Driscoll did not participate in the investigation but merely directed traffic. When the police record was offered by the defendant as a business entry the following occurred: 'Mr. Mahon: Your Honor please, I object, on the following grounds: To be admissible, the business record must be one based upon the entrant's own observation or upon the information transmitted to him by an observer whose business duty it was to transmit it to him. The observation of a mere volunteer is insufficient. I will continue. Officer Driscoll indicated he did not investigate this accident. He was just an onlooker. Officer Murtha made out the record, for whatever information is contained in there on the record. Obviously this officer doesn't know what source-at least, there is no testimony so far what source of information Officer Murtha used that is contained in the record. ...