Rockwood v. Pierce

• Decision Date: 01 February 1952
• Docket Number: No. 35543,35543
• Parties: ROCKWOOD v. PIERCE.
• Court: Minnesota Supreme Court

Page 670

51 N.W.2d 670

235 Minn. 519

ROCKWOOD v. PIERCE.

No. 35543.

Supreme Court of Minnesota.

Feb. 1, 1952.

Syllabus by the Court.

1. Where statements are made to a highway patrolman relating to the manner in which an automobile collision occurred, such statements are not privileged under M.S.A. § 169.09, subd. 13, which renders reports made pursuant to the statute inadmissible, but does not prohibit proof of the facts to which the report relates.

2. Statements heard by a patrolman are as much facts as what he observes.

3. The mere presence of the county attorney does not render privileged, under § 595.02(5), the statements of defendant as to the manner in which a collision between two automobiles occurred.

4. Presence of the county attorney while defendant was questioned by a highway patrolman was neither improper nor did it affect the admissibility of the statements made, in the absence of a showing that the statements were made in confidence or that the public interest would suffer by a disclosure thereof. Under these circumstances, it was not necessary for the court to caution the jury to disregard all mention of the presence of the county attorney.

5. Ordinarily, a witness may be impeached by showing that he failed to assert a fact when it would have been natural for him to assert it.

6. Failure to assert a fact when it would have been natural to assert it may be used to contradict an assertion of the existence of the fact.

7. In a proper case, the entire testimony at a former trial or hearing may be used to show failure to assert a fact which ought to have been asserted, or that the witness has altered or added to his testimony in some material respects.

8. Where it appears that all a witness did at a coroner's inquest held prior to trial of a case was to answer questions put to him, it was not error to exclude the entire testimony at the coroner's inquest offered to show failure to assert a fact where it does not appear that the witness was questioned about the fact which it is claimed he failed to assert.

Catherwood, Hughes & Alderson, Austin, for appellant.

Plunkett & Plunkett, Austin, for respondent.

KNUTSON, Justice.

Appeal from an order denying plaintiff's alternative motion for judgment notwithstanding a verdict for defendant or for a new trial.

This case arises out of a collision between two automobiles. Only the facts pertinent to a determination of the issues raised by the appeal will be stated. Plaintiff, Phyllis E. Rockwood, and her husband, Ralph Rockwood, lived in Janesville, Iowa. They owned a fishing cabin on Lake Francis near Elysian, Minnesota, together with Mr. and Mr. Henry Bolt, who also resided in Janesville. About 1 a.m. on May 21, 1950, Mr. and Mrs. Rockwood and Mr. and Mrs. Henry Bolt left Janesville for their cabin in an automobile owned by Mr. Bolt. They were accompanied by Mrs. Rockwood's sister-in-law, Florence Shepard, and her husband, who drove their own car. At the beginning of the journey, Mr. Bolt drove his car, Mr. Rockwood riding in the front seat with him, while Mrs. Rockwood and Mrs. Bolt occupied the back seat. After they had driven some distance and had reached a point just north of Lyle, Minnesota, Mrs. Rockwood took over the task of driving. They drove through Austin, Minnesota, where they stopped and obtained some information regarding the roads from a highway patrolman, Norman Sollie, and then proceeded north on U.S. highway No. 218, followed by the Shepard car.

The other car involved in the collision was driven by defendant, Reuben Pierce. After working on a farm near Geneva, Minnesota, all day, he drove to Blooming Prairie about 8 p.m. From there he went to Austin, where he met a Mrs. Nina Pacholl by appointment. They then returned to Blooming Prairie. After visiting several places at that location, they left about 1 a.m. for Ellendale. Thereafter they returned to a night club near Blooming Prairie, following which they started for Austin on U.S. highway No. 218, driving in a southerly direction.

The Bolt car and the Pierce car approached each other at a point about eight or ten miles north of Austin. When about one-half mile apart, the lights of both cars were dimmed. Each car was going between 40 and 50 miles per hour. Up to this point there is not much dispute in the testimony. From this point on, however, the testimony of the parties differs radically. Mrs. Rockwood claims that she was in the center of her lane of the highway and that as she approached the Pierce car she noticed, when they were separated about a block and a half or two blocks, that the Pierce car had drifted toward the center of the highway. She then released her foot from the foot feed and watched to see what the driver of the Pierce car would do. She claims that when about 75 to 100 feet away the Pierce car swerved farther to her side of the highway, so that it occupied her lane. She thought of taking to the ditch, but it was dark and rainy, and she feared that she might be hit broadside if she turned to the right. According to her testimony, the left lane was clear, so she pulled to the left, believing that she could clear the Pierce car by so doing. She testified that there were no other cars coming from the north. The cars collided, and that is all she remembers. Mrs. Bolt and Mr. Rockwood were killed outright, Mr. Bolt died later, and Mrs. Rockwood was seriously injured.

Mrs. Rockwood is corroborated in her testimony by Richard J. Shepard. He testified that he followed the Bolt car at a distance of about a block and a half, and that Mrs. Rockwood was driving in her lane. He saw the cars dim their lights, and he dimmed his about the same time. He testified that he observed the Pierce car drive to the center of the highway; that in a short time one of the headlights was not visible; and that he then saw a large flash. Mrs. Shepard was dozing at the time, so she could add nothing to his testimony.

Defendant, Pierce, claims that he was at all times on his side of the highway and that the Bolt car turned sharply into his lane of travel. He is corroborated by one John Van Epps, Jr., who at the time of the trial claimed that he was following the Pierce car at a distance of about three blocks. He testified that the Pierce car remained on its side of the highway; that it never crossed the center line; and that the lights of the Bolt car disappeared and reappeared on the west side of the Pierce car. Prior to the trial, Van Epps testified at a coroner's inquest, and it is claimed that he then said nothing about following the Pierce car. When questioned about his failure to do so, he stated that he did not remember whether he said anything about it or not. In some other respects his testimony is not too convincing.

After the collision, the car driven by plaintiff ended up in the ditch on the west side of the highway, facing south, upside down, and about 25 feet north of the Pierce car. The Pierce car ended up facing in an easterly direction, the front end extending out onto the shoulder on the east side of the highway, with the rear wheels on the pavement, about half of the car being on the pavement and half on the shoulder. Most of the debris was on the west lane of the highway.

On the morning of the collision, Officer Sollie, Sheriff Albert Reinartz, two doctors, and a nurse called on defendant at the hospital, where he had been taken, and questioned him about the collision. Plaintiff sought to have the officer testify to what defendant then told him. Defendant objected, and the following proceedings then took place:

'Q. And did you ask Mr. Pierce as to how he thought the accident happened? A. Yes.

'Q. And what was his answer?

'Mr. Plunkett: Just a minute, I would like permission to ask the witness a question for the purpose of laying a foundation for an objection.

'The Court: You may do so.

'Examination by Mr. Plunkett:

'Q. Mr. Sollie, at the time you saw Mr. Pierce in the emergency room in St. Olaf Hospital on the morning in question, you were acting in your official capacity as a highway patrolman? A. I was.

'Q. And you went in there to investigate the accident and get information in regard to it in connection with your official duties as such? A. That's right.

'Q. For the purpose of making a report which you are required to do? A. Yes, sir.

'Q. In connection with an accident of this kind? A. That's right.

'Q. And you informed Mr. Pierce, did you, that that was the purpose of your visit to him and questioning of him? A. I don't remember whether he was told that it was for the purposes of a report or not.

'Q. Well, he was told that he was required to give you whatever information he had in connection with the accident, wasn't he? A. Yes, I believe so.

'Q. That the law required it because you had to make a report, isn't that true? A. Yes.

'Mr. Plunkett: We object to the question on the ground that it is not permitted by the statute.

'The Court: How does the statute read now?

'Mr. Kelley: I believe I have a copy of the statute here, your Honor. The report itself is confidential but not information concerning the investigation.

'Mr. Plunkett: He further testified that he told him he had to have this information, isn't that true? A. It would not be unusual if I did. As a matter of practice they are usually told that it is information we want for the reports. Whether I actually told Mr. Pierce that that morning or not, I don't recall.

'The Court: The Court, in view of the fact that the information that was elicited from the defendant Pierce was for the purpose of placing the same in the report, or in a report required by the statute, and not a voluntary statement at the scene of the accident or outside, which the witness or officer may have learned of, the court is of the opinion that the same is inadmissible under section 169.09, subdivision 13, having reference also to the amendment of 1947. The objection is sustained, and you may have an...