Steel v. Johnson

• Decision Date: 07 July 1941
• Docket Number: 28366.
• Parties: STEEL v. JOHNSON.
• Court: Washington Supreme Court

115 P.2d 145

9 Wn.2d 347

STEEL v. JOHNSON.

No. 28366.

Supreme Court of Washington

July 7, 1941

Department 2.

Action by Robert G. Steel against G. H. Johnson to recover damages for death of plaintiff's son in an automobile accident. From the judgment, the plaintiff appeals.

Reversed with instructions to grant a new trial.

Appeal from Superior Court, Clark County; Charles W. Hall, judge.

McMullen & Snider, of Vancouver, and Barnett H Goldstein and Mood W. Eckley, both of Portland, Or., for appellant.

Schaefer & Hall, of Vancouver, for respondent.

SIMPSON Justice.

This action was instituted by plaintiff to recover damages for the death of his son caused by the operation of an automobile driven by defendant.

The complaint alleges that plaintiff's son was of the age of three years, that November 7, 1939, while he was upon the paved portion of the intersection of Fourth Plain Avenue and 'O' steeet in the City of Vancouver, Washington, he was struck by an automobile driven by defendant. In addition the complaint charged several acts of negligence on the part of defendant which are not necessary to mention. Damages were demanded in the sum of twenty-five thousand dollars.

Defendant in his answer, denied the material allegations of the complaint.

Trial upon the merits Before the court sitting with a jury resulted in a verdict awarding to plaintiff $161.29. The record discloses that the amount of recovery was equal to the charges for hospital, doctor, undertaker and burial expenses.

Plaintiff presented a motion for judgment n.o.v., or in the alternative for a new trial. The motion was denied by the trial court and plaintiff appealed.

The assignments of error are in the admission of an exhibit in evidence, and in the denial of the motion for judgment n.o.v., or for a new trial.

It is not necessary to set out the facts regarding the accident except to say that the evidence was sufficient to justify the jury in finding that the defendant was guilty of negligence in the operation of his car at the time of the accident.

During the progress of the trial, respondent contended that the cost of rearing and educating a child would be in excess of the value of his services to his family during the period of his minority.

In order to sustain his contention, respondent called as a witness the administrator of public assistance for Clark county. The witness produced a mimeographed sheet of paper which was entitled 'State Department of Social Security--Suggested Budget for Self-Supporting Families April 1, 1939.' The paper contained figures which the witness explained showed a budget for minimum requirements for the care of children, as compiled by the state department of social security. The document was admitted in evidence over the objection of counsel for appellant.

Appellant contends that the exhibit was inadmissible for the reason that it contained figures and information which had no bearing upon any issue Before the court; that there was no showing that it had been compiled or prepared by an expert; that it was hearsay; that it was inadmissible because there was no showing that it applied to a family of the station of life as that occupied by appellant's family; and that appellant was given no opportunity to cross-examine the party or parties who had compiled the information.

The exhibit contained information which was purely hearsay and was clearly inadmissible unless it comes within an exception to the hearsay rule. Respondent argues that the report was prepared under the authority of Rem.Rev.Stat.Supp. § 10007-114a, relating to public assistance, and therefore, its admission was proper.

As an introduction to the discussion of the question touching upon the admissibility of the questioned document, we quote from Grant v. Fisher Flouring Mills Co., 190 Wash. 356, 68 P.2d 210, 215, as follows: 'Hearsay evidence is excluded by the courts principally because it is not sanctioned by the oath of the person who made the offered statement and no opportunity is afforded for cross-examination. To this rule there are many exceptions. One of these is that public documents or 'official written statements,' as the textwriters prefer to call them, are admissible even though the party who made the statements therein contained is not produced in court. The rule is partially founded upon expediency, but principally upon the presumption that the officer will do his duty. This is taken as a sufficient guarantee of trustworthiness.'

This court has passed upon a similar question several times.

Bardsley v. Sternberg, 18 Wash. 612, 52 P. 251, 524, presented a situation in which application was made for a peremptory writ of mandate commanding the treasurer of the city of Tacoma to pay certain city warrants. A report of the finance committee regarding the financial situation of the city treasurer made to and adopted by the city council was excluded from the evidence. This court held that the report was competent evidence because it was prepared by a distinct committee provided for and having its duties prescribed by law. Thus the report was a discharge of the committee's duty created by law and related to actual facts.

Cherry Point Fish Co. v. Nelson, 25 Wash. 558, 66 P. 55, was an action to enjoin the maintenance and operation of a fish trap. This court held that United States tide tables prepared for Puget Sound navigators were admissible in evidence to show the depth of the water at a given time.

In an action for breach of contract for failure to move a building, the defense being inclement weather, we held that the records of the United States weather bureau were competent evidence upon the issue presented in that case. We held that there was statutory authority for admission of the weather reports in evidence. Anderson v. Hilker, 38 Wash. 632, 80 P. 848.

In an action for damages caused by allowing a log jam to back up water in a river and injure adjoining land, we approved the introduction of the records of the nearest federal weather bureau station admitted to show the amount of rainfall in the vicinity. Peterson v. Arland, 79 Wash. 679, 141 P. 63.

State v. Bolen, 142 Wash. 653, 254 P. 445, 448, was a criminal action in which the defendant was charged with murder in the first degree. To identify the deceased, fingerprints from the records of the United States army in the war department were offered. The state contended that they were public records required by law to be kept and were admissible in evidence. This court used the doctrine of judicial notice of public documents as an exception to the hearsay rule, and upheld the admissibility of the exhibit. In passing upon the question we stated: 'We think the following may be gathered from the many authorities we have read on the subject: Documents of this general character, when relevant and material, are admissible in evidence if they are required to be kept by a major or important office or department of the federal government by virtue of statute or by virtue of rules and regulations reasonably necessary to the proper conduct of such office or department, such rules and regulations being either directly authorized by acts of Congress or are not inconsistent with, or violative of, any statute, and such document is of public interest, and its keeping is of such character as that it can be said that the general public has knowledge of it, and it is the record of a fact as distinguished from an opinion judgment, or discretion * * *.' (Italics ours.)

The case of Grant v. Fisher Flouring Mills Co., supra, was an action by plaintiff administratrix to recover for injuries alleged to have been sustained by deceased while in defendant's employ. To rebut the allegation of failure to provide sufficient ventilation, defendant offered in evidence three inspector's reports certified by the department of labor and industries. The trial court admitted them 'as records of the department.' This court upheld the admission on the same reasoning. In so doing, we called attention to the following statutes authorizing the admissibility of the reports: Rem.Rev.Stat. § 7591, P.C. § 3439, which provides that reports and returns made to the bureau and records of documents gathered or returned by the commissioner or inspectors are expressly 'declared public documents,' not to be destroyed without the permission of the governor; and, second, Rem.Rev.Stat.§ 1257, P.C. § 7776, provides for the admission of copies of records and documents on record or on file in the departments of the United States or this state when duly certified.

A search of other authorities discloses that much attention has been given to the question with which we are presently concerned. An excellent statement of the rule relative to the admissibility of public documents or reports is found in 20 Am.Jur. 866, § 1027, which reads: 'According to the theory advanced by some courts, a record of a primary fact made by a public official in the performance of official duty is, or may be made by legislation, competent prima facie evidence as to the existence of that fact, but records of investigations and inquiries conducted either voluntarily or pursuant to requirement of law by public officers concerning causes and effects, and involving the exercise of judgment and discretion, expressions of opinion and the making of conclusions, are not admissible in evidence as public records. This principle is not, however, universally applicable. It has been held that reports of a state engineer relative to water rights is a public document to be accepted as prima facie evidence. A determination by an immigration board that certain persons brought Before the board were aliens is admissible in an action to recover the prescribed...