Voigt v. Voigt

• Decision Date: 03 March 1964
• Citation: 22 Wis.2d 573,126 N.W.2d 543
• Parties: Viola VOIGT et al., Plaintiffs-Respondents, v. Robert B. VOIGT et al., Defendants-Respondents, Mary Ellen Beaton, Ex'x of the Estate of Thomas Phillip Beaton, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 543

126 N.W.2d 543

22 Wis.2d 573

Viola VOIGT et al., Plaintiffs-Respondents, v. Robert B. VOIGT et al., Defendants-Respondents Mary Ellen Beaton, Ex'x of the Estate of Thomas Phillip Beaton, et al., Appellants.

Supreme Court of Wisconsin.

March 3, 1964.

Bender, Trump, Davidson & Godfrey, Milwaukee, Kneeland A. Godfrey and Thomas W. Godfrey, Milwaukee, of counsel, for appellant.

Arnold, Murray & O'Neill, Milwaukee, for defendant-respondent.

Edward S. Levin, Milwaukee, for plaintiffs-respondents; John W. Emmerling, Milwaukee, of counsel.

GORDON, Justice.

Introduction of Accident Report.

The appellants contend that the trial court erred in refusing to admit into evidence the accident report which contained a statement attributable to Mr. Voigt. We conclude that the trial court properly rejected the offer of this report into evidence. The statement was taken about a half hour after the accident by Deputy Sheriff Joe Norris, who interviewed Mr. Voigt at the hospital. Norris submitted his accident report to the county sheriff's office, but he died before the trial. Under the heading 'remarks,' Norris reported Mr. Voigt's statement that the Voigt car slid into the west lane, into the path of the Beaton car.

The demise of the deputy sheriff before the trial effectively foreclosed Voigt's counsel from any cross-examination. It was thus impossible for counsel to test the circumstances under which the officer took the statement and the mechanics which he employed to incorporate the statement on the final report which he filed with the sheriff's department. It was also impossible to test the correctness or accuracy of the remark charged to Mr. Voigt.

The matter covered in the statement went to the heart of the issue at trial. We consider that the absence of the right to cross-examine was critical. We have carefully considered sec. 327.18, Stats. (official records of public officers) and sec. 327.25 (business entries in the usual course of business), and we are persuaded that neither of these sections authorizes the admissibility of the report when objection is made as it was in the instant case.

The Court's Instructions.

There are two main objections by the appellants regarding the court's instructions. One relates to the side of the road on which the accident happened, and the other relates to the burden of proof.

With reference to the location of the accident, the court gave an instruction which related to the prospect of the Beaton car being on the wrong side of the road. No similar instruction was given to the prospect that the Voigt car may have been on the wrong side of the highway. The following instruction on this subject was given by the trial court:

'If you find that Mr. Beaton's car was on the wrong side of the highway at the time of the collision, then he was negligent as to his position on the highway unless you also find that there was an explanation satisfactory to you for his being on the wrong side of the highway. The burden of proof is upon the Defendants, Thomas P. Beaton, to produce evidence which would overcome the inference of negligence arising from the fact that the Beaton automobile was on the wrong side of the highway, if you find that it was on the wrong side of the highway.' (Emphasis added.)

There was no oral testimony from the witnesses which would have required the submission of an alternative instruction designed to invite the jury to consider whether the accident took place in the southbound lane. We recognize that the trial court had excluded from evidence (and properly so) the deputy sheriff's report which placed the accident on the southbound lane. Nevertheless, the physical facts, in our opinion, warranted the alternative submission.

In Strnad v. Co-operative Insurance Mutual (1949), 256 Wis. 261, 273, 40 N.W.2d 552, 560, we stated:

'Long experience has shown that in all except in a very few cases the position of the cars and their condition after a collision has very little, if any, probative value.'

Carstensen v. Faber (1962), 17 Wis.2d 242, 116 N.W.2d 161; New Amsterdam Cas. Co. v. Farmers M. A. Ins. Co. (1959), 5 Wis.2d 646, 94 N.W.2d 175. The position of the cars after the accident, therefore, would probably not have been sufficient by itself to have contradicted the oral testimony.

However, the fact that the northbound Voigt car was struck on its right side by the southbound Beaton car presents a physical circumstance which in this case justified letting the jury weigh the question as to where the accident happened.

In Evjen v. Packer City Transit Line (1960), 9 Wis.2d 153, 161, 100 N.W.2d 580, we held that where there are conflicting inferences that may be drawn from credible evidence, it is up to the jury to draw the proper inferences. This is true even though one of the inferences may be drawn from the physical facts not supported by oral testimony. In Pagel v. Holewinski (1960), 11 Wis.2d 634, 641, 106 N.W.2d 425, 428, we stated:

'Strong reasons of public policy support the rule that a jury may reject the testimony of an eyewitness and base a finding of negligence on a conflicting reasonable inference deduced from the physical facts.'

Having thus concluded that the trial court should have given instructions relative to either driver invading the lane of the other, we must resolve whether the failure to do so in the instant case was prejudicial. We conclude it was not prejudicial. The italicized portions of the instruction quoted above demonstrates that the trial court did not purport to tell the jury where the accident occurred. The expression 'if you find that Mr. Beaton's car was on the wrong side of the highway' appears twice in the instruction, and we believe that this made it reasonably clear to the jurors that they were free to determine on which side of the road the accident happened.

This jury was further instructed on the subject of physical facts which could not be reconciled with the testimony. The following instruction was given, and it further supports our conclusion that the error was not prejudicial:

'If you find that a witness testified contrary to physical facts unquestionably established by the evidence, and if you find that such testimony cannot be reconciled with such established physical facts, then you should disregard such testimony. However, the testimony of a witness is not overcome by physical facts, unless such facts are established beyond any reasonable ground for doubt, and they admit only of a conclusion unquestionably contradicting such testimony.'

We also note that appellants' counsel was permitted to cross-examine Mr. Voigt relative to the statement contained on the deputy sheriff's report in which the Voigt car is placed on the wrong side of the highway. While the written statement was not admitted into evidence, the jury nevertheless was fully aware of the appellants' contention that Mr. Voigt had previously made this admission.

The appellants also complain that the trial court erred in regard to its instruction on the burden of proof. The challenged instruction provided as follows:

'Members of the Jury, you are instructed that skidding of a motor vehicle may occur without fault, and when it does occur, it may likewise continue without fault for a considerable space and time. It results in partial or complete...