115 P.2d 145 | Wash. | 1941
Trial upon the merits before the court sitting with a jury resulted in a verdict awarding to plaintiff $161.29. The record discloses that the amount of recovery was equal to the charges for hospital, doctor, undertaker, and burial expenses.
Plaintiff presented a motion for judgment n.o.v., or in the alternative for a new trial. The motion was denied by the trial court, and plaintiff appealed.
The assignments of error are in the admission of an exhibit in evidence, and in the denial of the motion for judgment n.o.v., or for a new trial.
It is not necessary to set out the facts regarding the accident except to say that the evidence was sufficient to justify the jury in finding that the defendant was guilty of negligence in the operation of his car at the time of the accident. *349
During the progress of the trial, respondent contended that the cost of rearing and educating a child would be in excess of the value of his services to his family during the period of his minority. In order to sustain his contention, respondent called as a witness the administrator of public assistance for Clark county. The witness produced a mimeographed sheet of paper which was entitled "STATE DEPARTMENT OF SOCIAL SECURITY — SUGGESTED BUDGET FOR SELF-SUPPORTING FAMILIES April 1, 1939." The paper contained figures which the witness explained showed a budget for minimum requirements for the care of children, as compiled by the state department of social security. The document was admitted in evidence over the objection of counsel for appellant.
Appellant contends that the exhibit was inadmissible for the reason that it contained figures and information which had no bearing upon any issue before the court; that there was no showing that it had been compiled or prepared by an expert; that it was hearsay; that it was inadmissible because there was no showing that it applied to a family of the station of life as that occupied by appellant's family; and that appellant was given no opportunity to cross-examine the party or parties who had compiled the information.
The exhibit contained information which was purely hearsay and was clearly inadmissible unless it comes within an exception to the hearsay rule. Respondent argues that the report was prepared under the authority of Rem. Rev. Stat. (Sup.), § 10007-114a [P.C. § 6233-244] (Laws of 1939, chapter 216, p. 873, § 14), relating to public assistance, and therefore, its admission was proper.
[1, 2] As an introduction to the discussion of the question touching upon the admissibility of the questioned *350
document, we quote from Grant v. Fisher Flouring Mills Co.,
"Hearsay evidence is excluded by the courts principally because it is not sanctioned by the oath of the person who made the offered statement and no opportunity is afforded for cross-examination. To this rule, there are many exceptions. One of these is that public documents or `official written statements,' as the text writers prefer to call them, are admissible even though the party who made the statements therein contained is not produced in court. The rule is partially founded upon expediency, but principally upon the presumption that the officer will do his duty. This is taken as a sufficient guarantee of trustworthiness."
This court has passed upon a similar question several times.
Bardsley v. Sternberg,
Cherry Point Fish Co. v. Nelson,
In an action for breach of contract for failure to move a building, the defense being inclement weather, *351
we held that the records of the United States weather bureau were competent evidence upon the issue presented in that case. We held that there was statutory authority for admission of the weather reports in evidence. Anderson v. Hilker,
In an action for damages caused by allowing a log jam to back up water in a river and injure adjoining land, we approved the introduction of the records of the nearest Federal weather bureau station admitted to show the amount of rainfall in the vicinity.Peterson v. Arland,
State v. Bolen,
"We think the following may be gathered from the many authorities we have read on the subject: Documents of this general character, when relevant and material, are admissible in evidence, if they are required to be kept by a major or important office or department of the Federal government by virtue of statute or by virtue of rules and regulations reasonably necessary to the proper conduct of such office or department,such rules and regulations being either directly authorized byacts of Congress or are not inconsistent with or violative of anystatute, and such document is of public interest and its keepingis of such character as that it can be said that the generalpublic has knowledge of it and it is the record of a fact asdistinguished from an opinion, judgment or discretion; . . ." (Italics ours.) *352
The case of Grant v. Fisher Flouring Mills Co., supra, was an action by plaintiff administratrix to recover for injuries alleged to have been sustained by deceased while in defendant's employ. To rebut the allegation of failure to provide sufficient ventilation, defendant offered in evidence three inspector's reports certified by the department of labor and industries. The trial court admitted them "as records of the department." This court upheld the admission on the same reasoning. In so doing, we called attention to the following statutes authorizing the admissibility of the reports: Rem. Rev. Stat., § 7591 [P.C. § 3439], which provides that reports and returns made to the bureau and records of documents gathered or returned by the commissioner or inspectors are expressly "declared public documents," not to be destroyed without the permission of the governor; and, second, Rem. Rev. Stat., § 1257 [P.C. § 7776], provides for the admission of copies of records and documents on record or on file in the departments of the United States or this state when duly certified.
A search of other authorities discloses that much attention has been given to the question with which we are presently concerned. An excellent statement of the rule relative to the admissibility of public documents or reports is found in 20 Am. Jur. 866, § 1027, which reads:
"According to the theory advanced by some courts, a record of a primary fact made by a public official in the performance of official duty is, or may be made by legislation, competent prima facie evidence as to the existence of that fact, but records ofinvestigations and inquiries conducted either voluntarily orpursuant to requirement of law by public officers concerningcauses and effects, and involving the exercise of judgment anddiscretion, expressions of opinion, and the making ofconclusions, are not admissible in evidence as public *353 records. This principle is not, however, universally applicable. It has been held that reports of a state engineer relative to water rights is a public document to be accepted as prima facie evidence. A determination by an immigration board that certain persons brought before the board were aliens is admissible in an action to recover the prescribed penalty for violating the contract labor provisions of the alien immigration act of 1907." (Italics ours.)
In a criminal action for embezzlement of a public school fund, the court, in Bridges v. State,
Where a lessor sought to recover against his lessee for injury to the premises by fire, the court, in Cawley v. Northern WasteCo.,
In Sandel v. State,
"Since no authority can be implied from the nature of the State Health Officer's position to make an `official record' of matters outside his personal knowledge and that of his subordinates, the report of Dr. Coward lacked the express sanction of law essential to impressing a report containing such hearsay matters with the probative dignity and value of an admissible official record."
In the case of State v. Ray,
"We think the report of a deputy state examiner as to the result of his investigation of a county office, while possibly admissible for certain purposes in a proper case, is not a public or official book or record, within the meaning of section 10570 and that it is not admissible as evidence of the facts stated therein. The reports are simply intended for the guidance of the county commissioners and county attorney and, in themselves, are not a source of evidence as to the facts stated in them."
In an early Massachusetts railroad condemnation case, Cushingv. Nantasket Beach R. Co.,
"The acts of Major Raymond and assistant-engineer Bothfield, in surveying the headland in the town of Hull, cannot be called acts of state, nor are the facts stated in the reports public facts, in the sense that they are facts which the United States have, under the authority of law, undertaken to ascertain and make public for the benefit of all persons who may be interested to know them."
Thus, it will be seen that a report relating to a subject matter which cannot be called state acts or public facts because not made under authority of law for the *355 benefit of all persons is not admissible as a public document.
In Big Thompson Platte River Ditch Co. v. Mayne,
That the presence or absence of express statutory authority is a determining factor in reported cases is clearly illustrated by the case of Stockton v. Vote,
In Steiner v. McMillan,
"To constitute a public record, it must be a written memorial made by a public officer, which he must be authorized by law to make. (34 Cyc. 586.) None of these papers come within this definition. They were not memorials, nor were they authorized or required to be kept by law. They were merely incidental to the administration of the affairs of the office. They were in the nature of correspondence and private memoranda of a public official, which, while they may relate to public records, do not in themselves constitute public records."
In Birmingham v. Pettit, 21 D.C. 209, a personal injury action was instituted because of a boiler explosion in defendant's factory. Plaintiff offered in evidence a report made by an official board of examiners as to the cause of the explosion. To sustain its position, plaintiff cited Evanston v.Gunn,
In Vallejo Northern R. Co. v. Reed Orchard Co.,
The court in Commonwealth Irr. Co. v. Rio Grande *357 Canal Water Users Ass'n,
In a number of war risk insurance cases, the courts have upheld the admission of physical examination reports found in the files of the United States Veterans' Bureau when they were properly identified and a sufficient foundation was laid. Runkle v.United States,
The case of Commonwealth v. Slavski,
"The principle which seems fairly deducible from them [the authorities] is that a record of a primary fact, made by a public officer in the performance of official duty is or may be made by legislation competent prima facie evidence as to the existence of that fact, but that records of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions *358 of opinion, and making conclusions are not admissible in evidence as public records. This principle may not be universally applicable and there may be exceptions, but it appears to be available in general as a practical working rule."
In order to be admissible, a report or document prepared by a public official must contain facts and not conclusions involving the exercise of judgment or discretion or the expression of opinion. The subject matter must relate to facts which are of a public nature, it must be retained for the benefit of the public and there must be express statutory authority to compile the report.
The exhibit in question meets none of these requirements except that of a statutory direction to prepare the report. Its content was the result of the exercise of judgment founded upon personal computations and opinions made by officials or employees of the department. The subject matter did not relate to facts of public interest. Moreover, the report was not retained for the public benefit, but was designed merely for the use of the department, its officials, and the various boards of county commissioners.
It was error to admit the document in evidence.
[3] Appellant contends that the court should have granted his motion for judgment n.o.v., and entered judgment in his favor for a substantial sum. His counsel argue that by its verdict the jury fixed the responsibility for the accident upon respondent, and that the only question before the court was that of the adequacy of the damages. Counsel desired, as we understand their position, to have the court fix the amount of the damages that appellant should recover and then give respondent the opportunity to accept the award or consent to a new trial.
As authority for their contention, appellant's counsel *359 call our attention to Rem. Rev. Stat. (Sup.), § 399-1 [P.C. § 8225-1], which reads in part:
"If the trial court shall, upon a motion for new trial, find the damages awarded by a jury to be so excessive or inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice, the trial court may order a new trial or may enter an order providing for a new trial unless the party adversely affected shall consent to a reduction or increase of such verdict, . . ." Laws of 1933, chapter 138, p. 482, § 2.
We are unable to agree with counsel for appellant.
Before the trial court would be justified in granting the motion, it would have to conclude that the verdict of the jury in denying general damages was influenced by passion and prejudice. In passing upon this question, the trial court stated in its memorandum decision:
"I cannot see how it would be proper for the Court to grant a new trial for the lack of an award of general damages unless it is able to conclude from the evidence and circumstances that the jury was affected by passion or prejudice in some way and did not conscientiously try to apply the measure of damages given by the Court. This conclusion, I am unable to reach in the instant case,. . ."
We have read the statement of facts and are unable to say that the trial court arrived at a wrong conclusion. On the other hand, it appears to us that his decision was entirely justified by the record.
The judgment is reversed, with instructions to grant a new trial.
ROBINSON, C.J., BEALS, MILLARD, and JEFFERS, JJ., concur. *360