Osborne v. International Harvester Co.

• Decision Date: 05 December 1984
• Citation: 688 P.2d 390,69 Or.App. 629
• Parties: Patricia OSBORNE, Respondent-Cross-Appellant, v. INTERNATIONAL HARVESTER COMPANY, a Delaware corporation, Appellant, and Multnomah County, Oregon, a public body, Respondent-Cross-Respondent. A7908-03933; CA A28412.
• Court: Oregon Court of Appeals

Page 390

688 P.2d 390

69 Or.App. 629

Patricia OSBORNE, Respondent-Cross-Appellant, v. INTERNATIONAL HARVESTER COMPANY, a Delaware corporation, Appellant and Multnomah County, Oregon, a public body, Respondent-Cross-Respondent.

A7908-03933; CA A28412.

Court of Appeals of Oregon.

Argued and Submitted March 26, 1984.

Decided Sept. 5, 1984.

Reconsideration Denied Oct. 19, 1984.

Review Dismissed Dec. 5, 1984.

E. Joseph Dean, Portland, argued the cause for appellant. With him on briefs was Stoel, Rives, Boley, Fraser & Wyse, Portland.

Burl L. Green, Portland, argued the cause for respondent-cross-appellant. On brief were Robert J. Neuberger, and Green, Griswold & Neuberger and Larson & Sharp, Portland.

John B. Leahy, County Counsel, argued the cause for respondent-cross-respondent. With him on brief was Noelle Mair, Asst. County Counsel, Portland.

Before GILLETTE, P.J., and WARDEN and VAN HOOMISSEN, JJ.

VAN HOOMISSEN, Judge.

This is a products liability case. Plaintiff sued Multnomah County and International Harvester (IHC) for personal injuries. A jury returned a verdict in her favor against IHC. IHC appeals. It contends that the trial court erred in admitting certain evidence and in denying the admission of other evidence, in instructing the jury and in denying its motion for a directed verdict. Plaintiff cross-appeals from the judgment for the county. She contends that the trial court erred in excluding evidence that was objected to by the county and in admitting evidence offered by the county. She argues that any reversible error resulting from the county's trial conduct requires a new trial as to all parties and all issues. We affirm.

Ken Pinheiro, a county employe, was driving a county-owned truck that was involved in a collision with a passenger vehicle driven by plaintiff. The principal issue at trial was whether a fractured main leaf spring on the truck caused the collision. The evidence was in conflict. Plaintiff contended that the spring failed because of inclusions, or impurities, in the metal, which constituted a manufacturing defect. IHC contended that the spring failed because of the impact of the collision and that it was the county's negligence that proximately caused the accident.

We first consider whether the trial court erred in excluding accident reconstruction evidence concerning the truck's speed. IHC offered that evidence through its expert, Moffatt, who testified in an offer of proof that, based on standard formulas and facts concerning the road surface, grade, skidmarks and weight distribution of the truck, the truck was travelling 37 mph when it began skidding. IHC argues that that evidence was admissible under the rule explained in State v. Stringer, 291 Or. 527, 633 P.2d 770 (1981), rev'd on rehearing 292 Or. 388, 639 P.2d 1264 (1982), ¹ i.e., that such evidence is "judged by the same rules that are used in deciding the admissibility of opinion evidence on other issues." Plaintiff argues that Stringer should not be applied retroactively and that, in any event, the evidence was not admissible. She also argues that, even if the evidence was excluded erroneously, any error was harmless. Assuming that the trial court erred, we conclude that any error was harmless. ² See Kuffel v. Reiser, 268 Or. 152, 519 P.2d 365 (1974); Carter v. Moberly, 263 Or. 193, 206, 501 P.2d 1276 (1972).

The precise speed of the truck was not a central issue in the case. Pinheiro testified that, as he passed an intersection, he slowed the truck, put it into third gear and then accelerated, that he was going faster than 30 mph but less than 37 mph and that he then lost control of the truck. When he locked the truck's brakes, it skidded into the oncoming traffic lane. Pinheiro was unable to move the truck, because the driveline had pulled away from the differential. As he was climbing out of the truck, he said, plaintiff's car came around a corner and hit the truck. The jury was told that the truck could not be travelling slower than 30 mph nor faster than 37 mph in third gear. The jury also heard other evidence from which it could reasonably infer that Pinheiro was driving unsafely, because it was unsafe to go around the curve where the accident happened at over 30 mph. Pinheiro admitted that he was driving over 30 mph. Moffatt testified before the jury that, if Pinheiro's version of what happened was not correct, the most likely cause of the accident was that he lost control and the truck skidded into plaintiff, who could not avoid the collision. In short, the exclusion of the evidence was, at most, harmless error.

IHC next contends that the trial court erred in admitting a report from Evanson, plaintiff's metallurgical expert. He testified on direct examination that the main leaf spring cracked because of impurities in the metal at the time the spring was cast and that, over time, the defect worsened. His report was not offered by plaintiff. During cross-examination IHC's counsel read a major portion of Evanson's report to the jury. ³ Later, the county offered the report in evidence. The following colloquy then occurred:

"MR. LEAHY: I will offer 96, Your Honor.

"MR. CHADSEY: We would object on the grounds of hearsay, Your Honor.

"MR. LEAHY: It was read to the jury, Your Honor, by the witness at Mr. Chadsey's request.

"THE COURT: Mr. Green, do you have anything to say about this?

"MR. GREEN: I have no objection.

"THE COURT: Well, ordinarily--

"MR. CHADSEY: I had him read a paragraph of the report, Your Honor.

"MR. LEAHY: I will offer that paragraph that he read.

"THE COURT: Wait a minute.

"MR. LEAHY: Excuse me, Your Honor.

"THE COURT: Isn't the rule, when part of the document is made admissible, the entire document becomes admissible?

"MR. CHADSEY: I have no objection if he wants to read the whole document. I do object that the document itself is hearsay."

IHC argues (1) that the trial court improperly relied on the rule embodied in former ORS 41.880 (repealed by Or. Laws 1981, ch. 892, § 98) that allowed proof of a whole transaction when a part is admissible; see OEC 106; (2) that the evidence was inadmissible under the primary/secondary rule, a rule addressed to the cumulative aspect of evidence that prohibits introduction of secondary evidence, the report, after the primary evidence, Evanson's testimony, had been admitted; see Scanlon v. Hartman, 282 Or. 505, 579 P.2d 851 (1978); and (3) that the report was hearsay. IHC's first two arguments were not raised below. Therefore, we will not consider them. See Blue Ribbon Bldgs v. Struthers, 276 Or. 1199, 1205, 557 P.2d 1350 (1976).

IHC's objection that the report was hearsay appears to be in conflict with its counsel's statement that he had no objection to having the whole document read to the jury. IHC's counsel had read the most relevant part of the report to the jury. The remaining part of the report did little more than explain how the witness had reached his conclusions.

Evanson's short report was admitted during a long trial. The jury was told that the crucial issue was the cause of the fractured spring and that the evidence was in conflict on that issue. In addition, after its admission in evidence, neither plaintiff nor the county referred to Evanson's report. IHC read from it, however, in its closing argument. Assuming that the admission of the report over IHC's hearsay objection was error, we conclude that the error was harmless.

Following the accident, Pearson, a county employe, assisted in the county's investigation. He interviewed Pinheiro, the driver, and prepared an accident report and a workers' compensation claim form. Pearson had no firsthand knowledge of the accident and described the information contained in the two documents he prepared as his "impression" of what occurred. At trial, IHC attempted to introduce the two documents in evidence, arguing that, although they were hearsay, they fit exceptions to the hearsay rule. The trial court sustained objections to the evidence. ⁴ It also sustained the county's objection to IHC's questioning of Pinheiro concerning what Pearson had testified to regarding the documents earlier in the trial.

IHC concedes that the reports contain double hearsay. The contents of the report constitute out-of-court statements made by Pearson, and are therefore hearsay. Further, some of the statements authored by Pearson are based on declarations by Pinheiro, which constitutes hearsay upon hearsay. See Mayor v. Dowsett, 240 Or. 196, 236, 400 P.2d 234 (1965).

An otherwise admissible statement containing two types of hearsay must be excluded unless both come within exceptions to the hearsay rule. See Wynn v. Sundquist, 259 Or. 125, 132, 485 P.2d 1085 (1971); see also OEC 805. IHC argues that the contents of the reports are admissible as business records and that, assuming the reports in issue fit that exception, the further statements by Pinheiro are admissible as vicarious admissions of the county. See OEC 801(4)(b) (admission of a party opponent is not hearsay). It also argues that the statements were admissible for impeachment.

We hold that the reports were not admissible under the business records exception. We therefore need not consider whether Pinheiro's statements constituted vicarious admissions of the county. Even if that contention is correct, the reports are nevertheless inadmissible hearsay. Former ORS 41.690 (repealed by Or.Laws 1981, ch. 892, § 98), the statute then in effect, provided:

"A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."

See OEC 803(6). The statute required that the...