Welch v. Medlock, 5964
| Decision Date | 18 July 1955 |
| Docket Number | No. 5964,5964 |
| Parties | George WELCH, Jr., as Administrator of the Estate of Delbert Clayton, Deceased, Appellant, v. Ira Jewell MEDLOCK and Magma Copper Company, a Corporation, Appellees. |
| Court | Arizona Supreme Court |
Rawlins, Davis, Christy, Kleinman & Burrus, Phoenix, by George H. Rawlins and George Welch, Jr., Phoenix, for appellant.
Snell & Wilmer, by Mark Wilmer, Phoenix, and Tom Fulbright, Florence, for appellees.
This is an action brought by George Welch, Jr., as administrator of the estate of Delbert Clayton, deceased, as plaintiff (appellant), against Ira Jewell Medlock and the Magma Copper Company, a corporation, as defendants (appellees), to recover damages for the death of the deceased which plaintiff alleges was caused by the negligence of defendants in an automobile collision between a Dodge pickup operated by decedent and a Ford truck operated by the defendant Ira Jewell Medlock, as employee of the defendant Magma Copper Company. Defendants answered denying negligence and affirmatively alleged contributory negligence. The case was tried before the court with a jury, and resulted in a verdict for the defendants signed by nine jurors. The plaintiff made a motion for a new trial, which motion was denied. He prosecutes this appeal from the order denying said motion and from the judgment entered therein. Appellant will be designated as plaintiff, and appellees as defendants.
The complaint in the lower court was based on the alleged wrongful death of decedent. The facts, stated in a light most favorable to sustaining the verdict and judgment, are as follows:
On August 15, 1952, at approximately 10:30 a. m., decedent-accompanied by two friends, Lee Hicks and his son, Bynum Hicks-was driving a 1937 Dodge pickup truck south along U. S. Highway 80-89, approximately 3 miles south of Florence Junction. From that point south the highway was under construction for a distance of approximately 1 mile; circumventing this construction zone was a parallel detour road along the west side of the highway, having a graded dirt surface approximately 24 feet in width.
As the Dodge truck driven by decedent approached the detour, there were two heavy Ford flat-rack trucks, belonging to defendant Magma Copper Company, being driven in a northerly direction along the detour and approaching its north terminus, where the detour curved upward in an easterly direction and entered the main highway, which is a two-lane paved thoroughfare.
The first of these two trucks entered the main highway and passed decendent's truck immediately before it entered the detour. The second truck was driven by defendant Medlock and was following approximately 150 to 200 feet behind the first truck through a dust cloud of some debatable magnitude and density, which had been stirred up by the first truck. Decedent's truck turned off the highway and had gone approximately 50 feet into the detour when it collided with the second truck driven by defendant Medlock, killing decedent.
The testimony of L. H. McMahan, Arizona Highway Patrolman, who investigated-but did not observe-the accident, indicated that the point of impact was 9 feet from the west side of the detour road. McMahan also testified that at this point there was a shoulder or strip of 'very soft, loose sand,' about 6 inches deep and from 4 to 5 feet in width, which extended along the east side of the detour and which was not 'used by the cars.' The flat-rack of the Ford truck driven by defendant Medlock was 7 feet 6 inches in width and extended outward beyond the cab about 18 inches. This overhanging bed of the truck collided with the left side of decedent's truck, shearing the left hand windshield post and ripping off the left door of the pickup.
There are four assignments of error, the first three upon the admission in evidence of a document entitled 'Arizona Highway Patrol Fatality Sheet' (defendants' Exhibit A) and the fourth upon an instruction on contributory negligence requested by defendants and given by the court. We will consider these assignments as grouped, in their order.
The import of Patrolman McMahan's testimony given at the trial was to the effect that at the point of impact defendants' truck was over the theoretical center line (unmarked) of the detour road. On cross-examination he identified defendants' Exhibit A (the fatality sheet) as having been prepared, signed and delivered by him to the coroner at Superior. Counsel for defendants offered the exhibit in evidence for the avowed purpose of impeaching the testimony of McMahan. Over the strenuous objection of plaintiff the entire report was admitted in evidence and read to the jury. Included therein was the following paragraph written in McMahan's handwriting:
(Emphasis supplied.)
Confronted with the inconsistency between his testimony and the report, witness explained he had made a mistake in the report, that where it read 'Possibility that No. 1 was just over c. l. of Detour' he intended to have stated it was the No. 2 car that was just over the center line.
Counsel for plaintiff requested that the court instruct the jury that the exhibit was being admitted solely for the purpose of impeachment and not to prove the truth of the statements therein made. The court denied counsel's motion-repeatedly made-for such an instruction regarding the exhibit, except finally the court did admonish the jurors that the last sentence, reading: 'Because of road condition of the time & place, Poor visibility-no citations issued', should be disregarded by them.
The plaintiff by appropriate assignments of error and supporting propositions of law contends that the trial court committed prejudicial error: (1) in admitting Exhibit A (the fatality report) into evidence for the reason that it was incompetent on account of its hearsy characteristics, being based for the most part on speculation as to what had happened; (2) that the prior contradictory statement of the patrolman contained therein, viz.: 'Possibility that No. 1 (car) was just over c. l. of Detour' was admissible only to impeach or discredit the witness and was not competent as substantive evidence of the facts to which such statement related; (3) that the jury must necessarily have been instructed-timely request having been made therefor-that such evidence was to be disregarded for all purposes other than that of impeachment; (4) that the unqualified admission of this Exhibit A into evidence was so highly prejudicial to plaintiff as to constitute reversible error.
As an abstract proposition of law, defendants do not seriously challenge the plaintiff's contention that ordinarily when a document is admitted solely for impeachment purposes the court should by an appropriate admonition tell the jury that it is being admitted for this limited purpose. Rather they seek to sustain the court's ruling admitting the exhibit in evidence upon the theory that it was admissible (1) either as a public record, under section 23-305, A.C.A.1939, or (2) as a 'business record' under the provisions of Laws 1951, chapter 62, section 1 (). Finally they urge that if there was error in the admission of such exhibit it was either waived by plaintiff or at most was harmless error.
We hold there was no waiver and that, far from being harmless, the admission of the statement without limiting instruction was highly prejudicial to plaintiff's rights. From a careful study of the authorities cited we are convinced that the exhibit in question is not a 'public record' within the...
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