State ex rel. Pershall v. Woolsey

• Citation: 32 Or.App. 257,573 P.2d 771
• Parties: STATE of Oregon ex rel. Mary Diane PERSHALL, Appellant-Cross-Respondent, v. John Elmer WOOLSEY, Respondent-Cross-Appellant.
• Decision Date: 23 January 1978
• Court: Court of Appeals of Oregon

Page 771

573 P.2d 771

32 Or.App. 257

STATE of Oregon ex rel. Mary Diane PERSHALL Appellant-Cross-Respondent, v. John Elmer WOOLSEY, Respondent-Cross-Appellant.

Court of Appeals of Oregon.

Argued and Submitted Nov. 14, 1977.

Decided Jan. 23, 1978.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Dean A. Heiling, Roseburg, argued the cause for respondent. With him on the brief was Heiling & McIntosh, Roseburg.

Before SCHWAB, C. J., and BUTTLER and ROBERTS, JJ.

BUTTLER, Judge.

The state appeals from a judgment on a jury verdict in favor of respondent in a filiation proceeding (ORS 109.125 et seq.) and assigns as error the admission in evidence, over petitioner's objection, of a letter from an Assistant Attorney General to defense counsel which, it is contended, contained prejudicial hearsay statements not excepted from the exclusionary rule. Respondent cross-appeals, claiming abuse of discretion in the amount of attorney's fees awarded to him; our disposition of the case makes it unnecessary to consider this matter.

The relevant part of the letter involved in this dispute is:

"On March 17, 1976, my investigator and myself interviewed James Cowan, the former boyfriend of the Petitioner. His testimony would substantiate that of the Petitioner's in that he did date Miss Pershall and had sexual relations with her.

"However, they ceased their relationship approximately in the middle of February, 1975. He has not had sexual intercourse with her after that date. Since the Petitioner would testify her last menstrual period was on or about April 14th, 1975, Mr. Cowan is ruled out as a possible father of the child."

In overruling petitioner's objection, the trial court stated:

"My understanding is that it was sent in connection with Mr. Heiling's preparation of his case for the defendant here, and I'm going to let it in for the limited purpose of showing its information that was provided to Mr. Heiling, and not for the truth of it necessarily.

"It will be received for that purpose."

After a further offer of the letter for the purpose of proving the truth of the matter asserted, the court stated:

"I think I've allowed the introduction for consideration of the jury and I haven't read it yet, Counsel, but I'm going to leave it as it is, as a statement made by Mr. Cannady (state's attorney) to you, Mr. Heiling."

While it may be possible to rationalize a theory on which the letter might be admissible without considering the truth of the matters asserted therein, none has been suggested. In fact, respondent relies upon the content of the letter in support of his contention that Mr. Cowan is the father of the child, and that petitioner is not telling the truth.

Petitioner argues that the letter is double hearsay. We agree. The letter itself is an out-of-court statement containing a report of another out-of-court statement. If the letter is admissible, it must be by virtue of an exception to the hearsay rule.

Since the letter does not purport to contain an admission by petitioner or a statement of facts within the independent knowledge of petitioner's counsel who wrote the letter, it does not fall within the exception recognized as a representative admission by a party. That exception, as discussed in McCormick, Evidence 644, § 267 (2d Ed E. Cleary 1972), is:

" * * * The later cases, properly it seems, measure the authority of the attorney to make out-of-court admissions by the same tests of express or implied authority as would be applied to other agents, and when they meet these tests admit as evidentiary admissions the statements of attorneys in letters or oral conversations made in the course of efforts for the collection or resistance of claims, or negotiations for the settlement of suits or controversies, or the management of any other business in behalf of the client."

While it might be argued that the crucial sentence: "However, they ceased their relationship approximately in the middle of February, 1975," is an affirmation of the fact by petitioner's attorney, the context of the letter makes it clear that such a statement was not made of the attorney's own personal knowledge, but was only a repetition of what he was told by Mr. Cowan. Accordingly, the statement does not come within that exception.

Respondent argues that the statements made by the former boyfriend in the presence of petitioner's attorney are admissible under ORS 41.900(3). ¹ The plain language of the statute is limited to statements made in the presence of the party, and the party's "conduct in relation thereto." No case interpreting the statute has applied it to a situation other than one involving statements made in the presence of a party giving rise to the party's opportunity to deny the matter stated, and we decline to do so here. See, e. g., State v. O'Brien, 262 Or. 30, 32-34, 496 P.2d 191 (1972), and cases cited therein; State v. Chase, 15 Or.App. 369, 373, 515 P.2d 1337 ...