dissenting.
The majority recognize that the critical question, both as to who was negligent and to what degree, is whether defendant’s car passed plaintiffs’ truck, pulled in front of the truck and then slowed down. Notwithstanding the significance of that issue, the majority conclude that it is not necessary to decide whether the trial court erred in permitting plaintiffs to call, as their lead-off witness, the Oregon state police officer, to set the stage by telling the jury what happened consistent with plaintiffs’ theory of the case, because, if it erred, the error was harmless. Because I conclude that the evidence was hearsay at the time it was offered, and therefore it was not admissible, it was error and I cannot conclude that the error was harmless.
Under OEC 801-(4)(a)(B), the officer’s testimony would not have been hearsay if it had been offered “to rebut an inconsistent statement or an express or implied charge of recent fabrication or improper influence or motive.” The reason it ceases to be hearsay when it is so offered is that witness is testifying to a fact: that the declarant said such and such. Here, however, the officer was the lead-off witness and was permitted to testify as if the statements he reported were true. Defendant’s hearsay objection should have been sustained. It may be infrequent that taking a witness out of order constitutes reversible error; however, it does in this case: with an aura of official authority, he set the stage for plaintiffs’ case, based on what was hearsay at the time it was offered.
Accordingly, I would reverse and remand for a new trial.