Wilder v. Classified Risk Ins. Co., 263

• Decision Date: 02 June 1970
• Docket Number: No. 263,263
• Citation: 47 Wis.2d 286,177 N.W.2d 109
• Parties: Simon WILDER, Appellant, v. CLASSIFIED RISK INSURANCE COMPANY, and Phillip Campbell, Respondents.
• Court: Wisconsin Supreme Court

Page 109

177 N.W.2d 109

47 Wis.2d 286

Simon WILDER, Appellant, v. CLASSIFIED RISK INSURANCE COMPANY, and Phillip Campbell, Respondents.

No. 263.

Supreme Court of Wisconsin.

June 2, 1970.

This is a suit by Simon Wilder, a pedestrian, to recover for personal injuries he received on October 22, 1965, when struck by an automobile driven by the defendant Phillip Campbell. The defendant Classified Risk Insurance Company is the insurer of Campbell who, accompanied by Donald Walker, a passenger, was driving a Ford west on Center street between 10th and 11th streets in the city of Milwaukee. Wilder was crossing Center street from the south about 100 feet west of the 10th street crosswalk and had reached a line of parked cars on the north side of Center street when he was struck by Campbell's car. The jury found Wilder 70 percent negligent and Campbell 30 percent. Judgment was entered on the verdict dismissing the complaint and Wilder appeals.

S. A. Schapiro, Milwaukee, for appellant.

Giffin, Simarski, Goodrich & Brennan, Milwaukee, James P. Brennan, Milwaukee, of counsel, for respondents.

HALLOWS, Chief Justice.

The issue on appeal is whether the police traffic-accident report including statements attributed to witnesses of the accident is admissible in evidence. Officer Eddie Norris who investigated the accident took statements from defendant Campbell, his passenger Donald Walker, and Elizabeth Williams, a witness. Officer Albert Gordon took a statement from Donald Walker and from two other witnesses Joseph Gross and Ennis Smith. During the trial, Officer Norris was allowed to testify concerning the statements made to him by Campbell, Walker and Williams and that he made an official traffic-accident report and in doing so he relied upon the statements made by Joseph Gross and Ennis Smith to his fellow-officer Gordon. Without objection Officer Norris was allowed to testify to what Gross had stated to Officer Gordon and over objection to what Smith had stated to Officer Gordon. In both instances he read Officer Gordon's account of what these witnesses told him. Officer Norris was also allowed to sestify in effect to his conclusion of how the accident happened, as was stated in his report.

Later, the court, upon request of counsel for Wilder, instructed the jury that the statements of Gross, Smith, Williams, and Walker were received in evidence only to show these statements were made and not as proof of the facts therein. The report including these written statements was admitted into evidence and the jury was allowed over objection to take them into the jury room during its deliberation.

It has been a rule of some standing in this state that a police traffic report of an accident made by a traffic officer in the line of duty is not admissible in evidence as to those factual matters therein stated which are based on hearsay. Likewise, a conclusion in the report of the traffic officer is inadmissible. A police traffic report, even as to conclusions and hearsay statements, would be admitted in evidence as an official record under sec. 889.18, Stats., ¹ formerly sec. 327.18(1), if this statute were literally construed because it is a public report made by a public official pursuant to law. But it was early held in Jacobson v. Bryan (1944), 244 Wis. 359, 12 N.W.2d 789, that this section did not make admissible hearsay or conclusions of nonexperts under the guise of being an official record. The court stated that this section did not make admissible in evidence any matter to which the officer who made the report could not testify upon the witness stand.

This doctrine was affirmed in Estate of Eannelli (1955), 269 Wis. 192, 212, 68 N.W.2d 791, which held an official coroner's certificate of death was admissible in evidence under sec. 889.18, Stats. Against the objection that the certificate contained hearsay evidence as to the time of death, the court applied sec. 891.09(1), Stats., then sec. 328.09(1), which expressly provides that a death record of the state bureau of vital statistics shall be received as presumptive evidence of the death so recorded. Generally, under sec. 889.18 matters appearing therein founded upon hearsay are admissible, but this court has made a qualification for traffic-accident reports. In Novakofski v. State Farm Mut. Auto. Ins. Co. (1967), 34 Wis.2d 154, 148 N.W.2d 714, we stated a police report qualified as an official record but was limited in that the conclusion as to the cause of death was a medical conclusion by a lay police officer grounded upon hearsay and was inadmissible. In Voigt v. Voigt (1964), 22 Wis.2d 573, 126 N.W.2d 543, we inferred a police accident report was an official record under sec. 889.18 but the report was inadmissible because the officer was dead at the time of trial and thus could not be cross-examined concerning a statement he took from Mr. Voigt at the hospital to the effect his car slid into the path of the other car. It would have been better to have based the exclusion on the ground the statement was hearsay because the full application of official-records doctrine admits hearsay--that is the purpose of the exception. It is a bit misleading to state a police traffic-accident report is a public document under sec. 889.18 and then to limit its admissibility to only those facts of which the report maker has personal knowledge, i.e., measurements and observations, etc. However, that it is the result of Smith v. Rural Mutual Ins. Co. (1963), 20 Wis.2d 592, 123 N.W.2d 496. As to such facts a traffic-accident report is admissible without the testimony of the officer making the report. The death of the officer would not make such part of the report inadmissible and anything to the contrary in Voigt v. Voigt, supra, is withdrawn.

The testimony of Officer Norris of statements attributed to Gross was inadmissible but since it was not objected to it was not error. However, the testimony relating to Smith was objected to and since it constituted hearsay in the report, it should neither have been read nor the report admitted in evidence to that extent. Its admission is not justified on the ground Officer Norris relied on the statement in making his report and conclusion of how the accident happened because his conclusion was not admissible.

The statement of Smith was prejudicial because it stated that Wilder staggered and fell backwards against the passing car driven by Campbell. This account puts more blame on Wilder than if he had been struck while normally walking alongside the parked car. It was improper to get the conclusion of how the accident happened based upon this statement in evidence by framing a question containing such information and then asking the officer whether he wrote that conclusion in the report to explain a diagram contained therein. This question was objected to and overruled. The question was an attempt to get the inadmissible contents of the report into evidence by indirection. Diagrams made a part of a police report are governed by the same rules as the report. See Police Accident Reports, 43 Calif. S. B. Journal, p. 711 (1968); Official Written Statements, 30 Montana L.Rev. 227 (1969).

It was error for the court to instruct the jury the hearsay statements were not admissible to prove the truth of the facts therein stated but only that the declarer made the statement. For this purpose, the statements were wholly immaterial and irrelevant because...