Novakofski v. State Farm Mut. Auto. Ins. Co. of Bloomington, Ill.

• Court: Wisconsin Supreme Court
• Writing for the Court: CURRIE
• Citation: Novakofski v. State Farm Mut. Auto. Ins. Co. of Bloomington, Ill., 148 N.W.2d 714, 34 Wis.2d 154 (Wis. 1967)
• Decision Date: 28 February 1967
• Parties: , 21 A.L.R.3d 411 Mary NOVAKOFSKI, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INS. CO. OF BLOOMINGTON, ILL. a foreign corp., Appellant.

Page 714

148 N.W.2d 714

34 Wis.2d 154, 21 A.L.R.3d 411

Mary NOVAKOFSKI, Respondent, v. STATE FARM MUTUAL AUTOMOBILE INS. CO. OF BLOOMINGTON, ILL. a foreign corp., Appellant.

Supreme Court of Wisconsin.

Feb. 28, 1967.

Henry P. Hughes, Oshkosh, for appellant.

Adams & Woodrow, Menasha, Benton, Bosser, Fulton, Menn & Nehs, Appleton, Peter S. Nelson, Appleton, of counsel, for respondent.

CURRIE, Chief Justice.

The facts of the instant accident are strikingly similar to those in Wood v. Indemnity Co. ¹ In that case we held that an unexplained departure of a motor vehicle from the traveled portion of the highway invokes the doctrine of res ipsa loquitur which permits the jury to infer negligence from the mere occurrence of the accident.

The same contention is advanced here that was advanced in Wood, viz., that the doctrine of res ipsa loquitur is rendered inapplicable by evidence that the accident was caused by a heart attack sustained by the driver. In Wood we quoted with approval from Prosser ² that the mere introduction of inconclusive evidence suggesting another cause of the accident will not render the doctrine of res ipsa loquitur inapplicable so as to entitle the defendant to a directed verdict.

Essentially defendant's position on this appeal is that its moving papers establish prima facie that Mr. Novakofski's death was due to coronary thrombosis, which fact operates to rule out res ipsa loquitur, and that its prima facie whowing has not been rebutted. Defendant grounds its claim of a prima facie establishment of coronary thrombosis as the cause of death upon (1) the death certificate; (2) the police report; and (3) a statement by plaintiff in her adverse examination.

Sec. 889.18 (formerly sec. 327.18), Stats., provides in part as follows:

'Official records. (1) As evidence. Every official record, report or certificate made by any public officer, pursuant to law, is evidence of the facts which are therein stated and which are required or permitted to be by such officer recorded, reported or certified, except * * *

'(2) Copies as evidence. A certified copy of any written or printed matter preserved pursuant to law in any public office or with any public officer in this state, or of the United States, is admissible in evidence whenever and wherever the original is admissible, and with like effect.'

Both the death certificate and the police report qualify as an official record under the aforequoted statute. The death certificate lists 'coronary thrombosis' as the cause of death while the police report states under the heading 'Nature of Injuries' with respect to Mr. Novakofski 'apparently died of a heart attack before collision. Dr. Forkin d.o.a.' The letters 'd.o.a.' apparently stand for 'dead on arrival.'

The death certificate is signed by a lay coroner, not a physician. The statement therein that death was due to 'coronary thrombosis' is thus a medical conclusion drawn by a lay coroner. If the coroner were subpoenaed to testify as to the cause of death such a conclusion on his part would be inadmissible. ³ Therefore, his statement in the death certificate is not admissible to establish the cause of Mr. Novakofski's death. As this court stated in Smith v. Rural Mut. Ins. Co.: ^3a

'We have held that conclusions stated in official records are not admissible under this section (327.18(1)). Estate of Eannelli (1955), 269 Wis. 192, 212, 68 N.W.2d 791; Jacobson v. Bryan (1944), 244 Wis. 359, 368, 12 N.W.2d 789.

'If an official cannot testify upon the witness stand to the facts contained in the report, the statute does not apply and the report is inadmissible.'

Furthermore, even if it were held that the death certificate established prima facie the cause of death as coronary thrombosis, it is completely destroyed by Dr. Danford's affidavit that it is impossible for a layman to diagnose the cause of death as being due to coronary thrombosis. In Lubner v. Peerless, ⁴ where competent medical evidence established that it was impossible to determine by the procedure followed by a lay coroner that drowning was the cause of death, the coroner's statement as to the cause of death contained in a death certificate was held incompetent.

With respect to the police report we have a medical conclusion by lay police officers. Such a conclusion is inadmissible because the police officers could not testify to the conclusion if called as witnesses. ⁵ Furthermore, the statement with respect to the cause to death appears to be grounded on information supplied by a Dr. Forkin who is neither...