Worsham v. Fletcher

• Decision Date: 13 July 1984
• Parties: Erline F. WORSHAM v. William G. FLETCHER, et al. 82-410.
• Court: Alabama Supreme Court

Page 946

454 So.2d 946

Erline F. WORSHAM v. William G. FLETCHER, et al.

82-410.

Supreme Court of Alabama.

July 13, 1984.

Norman J. Gale, Jr. of Clay, Massey & Gale, Mobile, for appellant.

Benjamen T. Rowe of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, for appellees.

FAULKNER, Justice.

Erline Worsham brought this action against William Fletcher and Saunders Leasing Systems for injuries she received when an automobile driven by Fletcher collided with Worsham's automobile. Following a trial on the merits, a jury returned a verdict for the defendants. Worsham appeals.

The collision occurred at the intersection of Interstate Highway I-65 and Government Boulevard in Mobile County. The descriptions of the accident as given by both drivers were essentially the same. Both automobiles were on a service road and were attempting to merge with traffic on Government Boulevard. Worsham was immediately ahead of Fletcher. Both vehicles stopped as they approached the intersection. Worsham thought she saw an opening in the traffic and started out as if to attempt to enter the line of vehicles on Government Boulevard. As she started to move, Fletcher began moving and at the same time he looked to the left to check the oncoming traffic. Worsham changed her mind and decided not to enter the line of traffic at that time and stopped. Fletcher's automobile collided with the rear end of Worsham's automobile.

Worsham raises one issue on appeal: whether the trial court erred in refusing to allow the introduction of the investigating police officer's report.

The appellant concedes that reports of investigating police officers are hearsay, and therefore are not ordinarily admissible. Nettles v. Bishop, 289 Ala. 100, 266 So.2d 260 (1972). She argues, however, that the report was admissible in this instance because it was a "past recollection recorded." See Dennis v. Scarborough, 360 So.2d 278 (Ala.1978).

In order to lay a predicate for the admission of a document under the "past recollection recorded" rule, the witness must testify to the following:

"(1) That he personally observed the event or facts referred to in the writing and that the writing was made or seen by the witness either contemporaneously with the event or when his recollection of the event was fairly fresh.

"It is not essential, to benefit from past recollection recorded, that the witness himself shall have made the writing. The writing may have been made by another person if the witness saw it when the event recorded was fairly fresh in his memory and he then knew the statements in the writing to be correct.

"(2) That he then knew the contents of the writing and knew such contents to be true and correct.

"Where the witness testifies that the writing is in his own handwriting, he may testify further that he knows from his general practice in making writings of that kind that what he wrote was true.

"(3) That he has no present recollection of the event other than his testimony to the matters stated in 1 and 2 above."

C. Gamble, McElroy's Alabama Evidence, § 116.03 (3d ed. 1977).

In Dennis, supra, the appellant sought to introduce only that portion of the report which recited an admission against interest made to the investigating officer by an adverse party. 360 So.2d at 278. The adverse party's admission was admissible as evidence of her negligence and the accident report containing the admission qualified...