In аn action for damages for personal injuries sustained by plaintiff struck by defendant’s car, the jury returned a verdict for defendant. This is an appeal from an order denying plaintiff’s motion for a new trial.
On appeal plaintiff contends principally that the trial court errеd (!) in permitting a witness to refresh her memory from her shorthand notes of statements made by plaintiff within five days of the accident and barred from evidence by virtue of M. S. A. 602.01 and thereafter to testify as to what plaintiff had said at such time; and (2) in receiving in evidence part of a written statement signed by a witness shortly after the accident, wherein the witness related a conversation with another witness in the presence of plaintiff immediately after the accident, in which statements were made by the two witnesses giving rise to the conclusion that when struck plain *468 tiff was intoxicated due to his drinking “canned heat” prior to the accident.
The accident occurred May 31, 1951, on highway No. 10, near Hastings when plaintiff, a pedestrian thereon, was struck and seriously injured by defendant’s car. On June 5, 1951, Mrs. Mabel Vandersteen, a stenographer, was еmployed by Mercury Indemnity Company, defendant’s insurer, to accompany their representative, Daniel Sears, to St. Eaphael’s Hospital, where plaintiff was confined, to take shorthand notes of an interview with him relating to the accident. At the hospital the interview was taken down in shorthand by Mrs. Vandersteen. Later she transcribed it and forwarded the transcription to Mr. Sears. It was not signed by plaintiff and no copies were forwarded to him. It is not disputed that at the time it was taken drugs and sedatives had been administered to plaintiff to ease his pain.
At the trial, to show that the statements made by plaintiff as noted by Mrs. Vandersteen were inconsistent with plaintiff’s testimony, Mrs. Vandersteen, after testifying that she had no independent recollection of the statements, was asked to refer to her shorthand notes to refresh her memory and then to relate what plaintiff had said at the interview. Upon objection of plaintiff’s counsel that § 602.01 prohibited the use of such statements where no copy thereof had been given to the injured person within 30 days, the trial court ruled:
“* * * there is a statutory provision that bars a statement of this kind, that is a statement taken unless a copy was given to this man within a certain time after it was taken, which wasn’t done, and the statement itself is excluded, but this Court has ruled that you may testify as to what questions were made or questions put and answers made, refreshing yоur recollection from the notes, but you may not read the direct answers.”
Thereafter, the witness was permitted to refer to her shorthand notes and testify as to the answers made by plaintiff to the questions asked by Mr. Sears during the interview.
As to the second contention, the reсord indicates that on July 30, 1951, James Dodge, who had assisted at the accident and helped *469 transport plaintiff to the hospital, had signed a written statement prepared by a representative of the insurer, wherein the following was set forth:
“* * * While we were cutting the clothеs [plaintiff’s] off, Sontag [the ambulance driver] made the remark that it was a good thing that Price was drunk because of the injuries. I said that it looked like a canned heat drunk and Price mumbled ‘I never use canned heat.’ ”
Mr. Sontag testified as a witness for plaintiff but had made no reference to the statement attributed to him as above, nor as to whether he had observed that plaintiff had been drinking. He testified that “both of his [plaintiff’s] legs were broken”; that while at the hospital he could not say whether plaintiff was conscious or not; and that plaintiff had “mumbled” in response to questions asked him there.
Mr. Dodge, testifying for plaintiff, stated that he did not smell any liquor on the latter at the time of the accident. He admitted that he had signed the statement above referred to. He testified that when plaintiff talked “he mumbled — talked heavy” — “like he hаd been hit about the face.” He was asked if he recalled Mr. Sontag making a remark at the hospital about plaintiff’s “apparent drinking habits or his use of intoxicants.” This was objected to by plaintiff’s counsel, but the court ruled that since the conversation was in the presеnce of plaintiff, the question was proper. The witness thereupon replied there was such remark and that plaintiff had replied to it. He was then asked to repeat the remark and the reply, but before he could do so, counsel for defendant offered the statement in evidence and over objection of plaintiff’s counsel as to foundation, the statements attributed to plaintiff, to Sontag, and to Dodge as above quoted were received and read to the jury.
Section 602.01
2
is divisible into two parts, one of which creates the presumption of fraud as to any statement taken from an injured
*470
person within 30 days after his injuries in the trial of any action therefor; and the other of which prohibits its use in evidence unless the injured party is given a copy of it within 30 days. No such copy was furnished plaintiff here. The statement was taken in shorthand, and a transcription thereof made and mailed to the insurer but not to plaintiff. The trial court correctly ruled that the transcription was inadmissible under the statute. This was circumvented by having the witness who had taken the shorthand notes refer thereto to refrеsh her memory and then relate in evidence plaintiff’s responses to the questions he was asked relative to the accident as noted therein. In permitting this procedure, we feel the trial court was in error. The statute seeks to prevent unfair practices in thе procurement of statements from injured parties. Yeager v. Chapman,
The situation is not unlike that in Lowen v. Pates,
“To admit testimony based upon the statements or memoranda taken for the purpose of preparing or making the report given immunity by the statute would circumvent the very intent and purpose of the act. Therefore, the evidence was inadmissible.”
See, also, Hickok v. Margolis,
Our decision in Lovel v. Squirt Bottling Co.
We have some doubt as to the sufficiency of the foundation for receiving in evidence the written statement signed by the witness Dodge. Ostensibly, it was offered to impeach his testimony. While prior inconsistent statements may be received to impeach a witness, before this can be done, it must appear that there is an inconsistency between the statement and the testimony of the witness. Bosell v. Rannestad,
Regardless of the ultimate admissibility of Dodge’s prior statement, however, the procedure followed resulted also in the admission of statements ascribed to Sontag and to plaintiff. These were read to the jury and no doubt created the impression that plaintiff was intoxicated at the time of the accident as the result of his use of “canned heat” or other strong stimulants. There was no foundation whatever for the admission of Sontag’s statement carrying this suggestion. He had previously testified and was asked nothing with reference to plaintiff’s condition or to the statement ascribed to him. Without such preliminary foundation, we can conceive of no basis upon which that part of the statement attributed to him should have been received. Bosell v. Rannestаd, supra; O’Neill v. Minneapolis St. Ry. Co. supra.
Plaintiff had testified that prior to the accident he had consumed several bottles of beer but denied using anything stronger. While it has been held that the impeaching statement of a party to an action may be introduced without the preliminary foundation required for that of а witness (Lovel v. Squirt Bottling Co.
supra;
Johnson v. Farrell,
Apрellant has assigned several additional errors. Because the circumstances under which they took place are not likely to arise in the next trial, we deem it unnecessary at this time to determine questions relative thereto.
The order appealed from is reversed and a new trial ordered.
Reversed.
Notes
“Any statement secured from an injured person at any time within 30 days after such injuries were sustained shall be presumably fraudulent in the trial of any action for damages for injuries sustained by such person *470 or for the death of such person as the result of such injuries. No statement can be used as evidence in any court unless the party so obtaining the statement shall give to such injured person a copy thereof within 30 days after the same was made.”
L. 1947, c. 114, § 1, amended § 169.09, subd. 13, to permit a person filing the required report to testify as to “facts within his knowledge.” See, Garey v. Michelsen,