Levin v. Green
106 A.2d 136
D.C.
1954
Check Treatment

*1 LEVIN v. GREEN.

Municipal for

Argued May 3, 1954. 21, 1954.

Decided June Sheeskin, Washington, C.,D. Jacob C., Seymour Berry, Washington,

whom D. brief, appellant. on the Pitts, C., Washington, Vaden S. D. Hollowell, Martin, Washing- & whom Pitts ton, brief, C., appellee. D. was on the CAYTON, Judge, Before Chief Judges. HOOD and Associate HOOD, Judge. in the Small sued Claims damages Court for

Branch resulting a collision between his auto- from appellee. that of Both vehicles mobile *2 isr other side' giving of counsel without street first same proceeding south: were However, opportunity examining an of it. an intersection they reached until prefer ques- more basic Be- police officer. stopped by they were admissibility tion of of officers’ the officer emergency of an cause report investigation of of accident. their commenced west. them turn completed his it before was turn but admissible its admissi was If by appellee’s. The was struck bility rest on must appellee judgment trial court awarded Act,2 makes admissible of an appellant applied for allowance business,” regular any course of “made in application be- granted the appeal.1 We “business, to include business defined question presented a substantial it cause occupation, every profession, calling evidence. question The whether that statute kind.”. appeared has appellant without admissible never .trial makes At the appear jurisdiction. Appellee squarely did not decided in this counsel. been had by After Circuit Court of counsel. The Third has officer as his made he called the ruled that a chief developed capacity Cross-examination in his official admissible witness. unit investigation “regular course” of his of the accident made in the busi officers ness, summary of the accident and the it though to the scene even contained a came making their them made witness aided statements witnesses to the police department. Further cross- v. Baking McKee accident. Jamestown developed Cir., Co., that the witness had 198 F.2d 551. The same examination 3 “that it knew reflected read admissible has held mine give full Mines, made the Bureau of disaster even ” ** and “indicated though attention contained conclusions part of improper driving on the the de- experts based on as well as ob Pittsburgh-Des fendant.” Moran v. servation. Moines Cir., Co., 3 183 F.2d 467. On the Steel appellee As before hand, containing a statement the trial. No witnesses were offered on at party to the made accident and a behalf, but at close entire affair made summation appellee case counsel for "stated that investigating officer was held inadmissible out made Accident by the of Appeals First Circuit Court be Investigation Unit and the Court asked him hearsay” “rankest cause The read it then returned for it.” Fyfe, Cir., Gencarella v. 1 but the was never sub- it the state courts inspection. for his mitted to reports held inadmissible in vestigating officers arrive at the scene appears Though it reports after the accident base their formally report was never offered and ad what others have told them. v. Johnson evidence, mitted in there is doubt it Lutz, 124, 517; 253 N.Y. 170 N.E. Appellee’s received in evidence. Co., Paliokaitis v. Checker Taxi 324 Ill. produced counsel it and the trial read 21, 216; App. 57 N.E.2d Davis’ v. Adm’x findings. Appellant making before it Gordon, Ky. 121, 409; 309 216 S.W.2d contends that the was not admissible. McKernan, Wagner 425, v. 198 Okl. 177 Snyder 511; itself not contained Co., in the P.2d v. Portland Traction 344, 563; the original report record. Whether was 182 Or. 185 P.2d v. Jacobson know, copy or a we do and we might Bryan, 244 Wis. 12 N.W.2d 789. See Hoffman, consider whether document 318 should be also Palmer U.S. in evidence on the mere admitted A.L.R. 719. 11-772. § 1732. 2. 28 U.S.C. Three cases in this touch on the officer toas fault or lack of fault of problem before respective us. McWilliams Hearsay drivers. and conclu Lewis, U.S.App.D.C. 153, gain sions no added evidentiary weight by

the officer who made the testified and reason of their inclusion in a report. refreshed his recollection means his Skoller Short, Ct., City 35 N.Y.S.2d 68. report apparently nothing except As stated earlier in opinion, what the officer had ob this the does record accident, served at the not contain scene the the because re port, but judicial the court take held that the in notice admission evi that the traffic accident dence of the form prejudicial commonly was not since used police department the practically it added calls nothing to the officer’s much information officer, Judge the Edgerton, writing unless an actual court, accident, witness to the the opinion stated that in the could re give by way hearsay. port was The form Shop admissible under the Federal calls for statements as to the speeds majority Book estimated Act but that the of the the vehicles, what the expressed opinion point. drivers were doing, on that In and what violations were Taylor, indicated. Obviously New York Life Ins. v.Co. 79 U.S. coming to the scene after App.D.C. the the accident court held has occurred hospital personal cannot have containing hearsay, that knowl edge speeds of the of the opinion diagnosis cars or were not and the admissible. actions of the drivers at the Edgerton Judge ground dissented the of the accident, per that records were such a admissible under son that a driver disregarded stop Shop sign Book Act. Universal or give failed to way Lines, U.S.App. pure Air is Airline v. Eastern conjecture unless based on an court, D.C. by the driver himself. dealing with investigator of the Civil Aeronautics In the case it is clear from lines, a suit air Board in between two ruled: the cross-examination officer, of the parte hearings “The ex and in did not make the it, but had seen excluded, generally vestigations are *. that the contained two conclusions: testimony reports, Such or such (1) That (appellant) reports, hearsay upon would be hear- give to full time and attention and (2) that say.” The decision made reference to improper there was no driving on part Shop the Federal Book Act.3 (appellee). of defendant prejudicial It was error cited to receive in The above cases from this evidence a con taining jurisdiction lead us to conclusion these that in conclusions. arising from an a civil action Appellee argues appel that since of the accident accident is object to put lant failed under Federal Shop not to be admitted evidence, it is too late ques in to raise the hearsay conjec it contains or Book Act if true, appeal. tion on this is or conclusions.4 Statements ture which are based on what the trial we counsel at have the to notice told others are officer was as much plain error even in the ab if stated on the witness stand objection. Appellee sence of argues also himself. by the officer Likewise inad the statute creating since Small conjectures are missible routine, to is limited rule clerical entries also Clainos v. United 3. See U. contemporaneously S.App.D.C. 163 F.2d 693. event charged person duty Schering Corp. Marzall, maintaining D.C.D.C., They the records. See do not F.Supp. 671, 673, Judge opinion wherein matters of to extend and similar ruled that under the Holtzoff decisions in matters.” “the Federal this Qaims judge con that the car standing on his would provides Court turn, to bound “shall make there ducting therefore duty practice, was a provisions responsibility rules of statutory or on him to' evidence, except glance at least in that pleading, direction to see what comm provisions relating privileged driver was doing. such The court dis unications”,5 had the found that negligent trial court both drivers were evi entered a judgment for cretion admit the defendant. Regardless not mere here is dence. But what we have accident was ample rule of evi there support a technical evidence failure invoke dence; judgment, departure from a serious and I believe that the action of *4 the trial claims court should established small affirmed. As Mr. recently appellant, was without stated in Gordon v. Justice Jackson United which was 344 U.S. protected against evidence not inadmissible, highly “Reversals should not be pro trivial, on quoted theoretical The statute and harmless as well. rulings.” shall be parties vides : “The and witnesses of this The admission sworn.” of unsworn amounted to grant with instructions to Reversed

new trial. Judge (dissenting). APPLIANCES, MID ATLANTIC Inc. agree it would I be error for trial set court to consider forth fact, did, if it in the accident con- et POTTER al. my opinion But it is that it sider them. error because based on the harmless testi- mony trial except negligence no alternative find part. May 24, Argued 1954. relatively

The facts in this case are simple. Appellant driving south June Decided lane nearest center line. 9th Street approached he O Street an officer As traveling traffic south on 9th

directed all ato On

Street to come halt. signaled then

right a cab. officer all on O Street traffic westerly direction.

travel in a turn and that he a wide with the rear fender cab collided cross-examination On car. signal from he received the

that after not look to at any he did

officer making the turn. This was while and, when -the emergency situation officer west on to travel O

Street, appellant knew or should have known (b). 11-808