No. 86-507
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
MARGARET HEISLER,
Plaintiff and Respondent,
-vs-
RITA GAYLE BOULE, Personal Representative
of the Estate of Robert Boule, Deceased,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Conklin, Nybo & LeVeque; E. Lee LeVeque, Great Falls,
Montana
For Respondent:
Dennis P. Conner, Great Falls, Montana
Submitted on Briefs: Jan. 15, 1987
Decided: April 7, 1987
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Rita Gayle Boule, as personal representative of the
estate of Robert Boule, appeals a July 30, 1986 order for a
new trial granted by the District Court of the Eighth
Judicial District, Cascade County. We affirm the District
Court's order.
This is a civil action in which the plaintiff, Margaret
Heisler, sued the estate of defendant Robert Boule seeking
recovery for injuries she sustained in an automobile accident
in March of 1983, at an intersection in Great Falls, Montana.
Trial was held in Cascade County in July, 1986. The jury
returned a special verdict finding the defendant 36%
negligent (by an 8-4 vote) and the plaintiff 64% negligent
(by a 12-0 vote), thereby allowing the plaintiff no recovery.
Plaintiff moved for a new trial, alleging error in the
admission of a tape recorded statement made by Boule
following the accident. Heisler's motion for a new trial was
granted by the District Court and the defendant has brought
this appeal.
Three issues are raised on appeal:
1. Whether the decedent's tape recorded statement, made
to his insurance claims representative six days after the
accident, was admissible under the residual exception to the
hearsay rule
2. Whether the admission of the Boule tape recorded
statement was harmless error because it was cumulative
evidence or prejudicial error entitling Heisler to a new
trial.
3. Whether the trial judge abused his discretion by
granting plaintiff-respondent Heisler's motion for a new
trial.
On March 10, 1983, two automobiles, operated by Margaret
Heisler and Robert Boule, collided at the intersection of 9th
Street and 8th Avenue North in Great Falls. Heisler had made
a left-hand turn at the intersection in front of the oncoming
Boule vehicle and the two cars collided, causing injuries to
both drivers. Heisler was cited by the investigating Great
Falls City Police Officer for a right-of-way violation.
Heisler filed a personal injury lawsuit against Boule's
estate in May, 1985, claiming that his car was traveling at
an excessive speed and that his negligence was, therefore,
the proximate cause of the injuries she sustained in the
accident. Boule had died in October from injuries he
suffered in another automobile accident in which he was a
passenger.
Immediately following the accident, a Great Falls Police
Department traffic investigator interviewed both drivers and
conducted an investigation of the accident. The interviews
took place both at the scene of the accident and shortly
after at the hospital where both drivers had been taken.
Boule told the officer that he was traveling within the
posted speed limit of 30 m.p.h., that the Heisler vehicle had
made a left-hand turn in front of him and that he was unable
to avoid the collision.
Boule and Heisler were insured by the same insurance
company, and six days after the accident they both gave tape
recorded statements to an insurance claims representative
from their company. The portion of Boule's statement at
issue here follows:
Q. (By insurance representative) Why don't you
iust give us direction of travel, and your side of
the story as what happened that day. A. (BY
Boule) Okay, I was traveling north on 9th Street,
and as far as I can remember, she was traveling
south on 9th Street and she just made a left-hand
turn right in front of me. I didn't have time to
hit the brakes or anything, she was just right
there, and I hit her.
Q. What is the approximate speed limit there?
A. It's 30 miles per hour.
Q. Okay, and you were traveling? A. I was
traveling about 30 miles per hour.
Q. Is there anything you might add, just to
clarify the situation as far as my report? A. No,
I can't think of anything other than, you know,
there just wasn't any time to react to her being in
front of me.
Defendant-appellant Boule filed a motion - limine with
in
the court seeking an order allowing the admission at trial of
Roule's tape recorded statement. The trial court ruled that
this statement was admissible because it fell within the
residual exception to the hearsay rule.
At trial, over Heisler's objection, the tape was played
for the jury by the insurance claims adjuster. The tape was
edited, by order of the District Judge, to remove evidence of
insurance.
Following a verdict for the defense, plaintiff's counsel
filed a motion for a new trial, alleging that the tape
recording of the decedent was an inadmissible hearsay
statement improperly admitted at trial. The trial judge
reversed his earlier ruling and granted plaintiff a new
trial, relying on the authority of In the Matter of D.W.L.
(1980), 189 Mont. 267, 615 P.2d 887.
The first issue we will address is whether the
decedent's tape recorded statement was admissible under the
residual exception to the hearsay rule.
Rule 801(c), M.R.Evid., provides that "[Hlearsay is a
statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." Rule 802,
M.R.Evid., provides that "Hearsay is not admissible except as
otherwise provided by statute, these rules, or other rules
applicable in the courts of this state." Rules 803 and 804,
M.R.Evid., list the hearsay exceptions. Both include
residual exceptions, which state:
Other exceptions. A statement not specifically
covered by any of the foregoing exceptions but
having comparable circumstantial guarantees - of
trustworthiness. (Emphasis added.)
Rule 803 (24), and Rule 804 (b) ( 5 ) , M.R.Evid. Rule 803 (24) is
the counterpart of 804(b) ( 5 ) in all respects except that the
unavailability of the declarant need not be demonstrated a.s a
prerequisite for admission of the evidence. Rule 804 (b)(51
is applicable here as Boule fell within its definition of an
unavailable witness.
Appellant Boule argues that although the tape recorded
statement is hearsay, it falls within the exception set out
above, because the recorded statement possesses
"circumstantial guarantees of trustworthiness" comparable to
the other enumerated exceptions in Rule 804(b) (5). In
support of this assertion, appellant argues:
There are many factors indicating the statements of
Mr. Boule were trustworthy and therefore
admissible. First, Mr. Boule had made prior
identical statements on the day of the accident to
investigating Great Falls City Police. Second, the
statement was a formal, tape recorded statement
made with Boule's permission which would later be
preserved and transcribed. Third, the statement
was corroborated by the investigating police
officer who examined the scene, interviewed the
drivers and witnesses, and cited the other driver.
Fourth, the statement was made within a few days of
the accident when the events were still fresh in
Boule's mind. Fifth, the police investigation had
been concluded and the other driver cited. Sixth,
the statement was made to the insurance claims
representative, the "authority" handling the
insurance claim. Seventh, since both drivers were
insured by Farmers, the "fault" of either was of
little significance, there was coverage in any
event for the injuries sustained by the two
drivers. Eighth, the statement was corroborated by
the automobile accident reconstruction expert who
thoroughly and scientifically investigated the
crash. Ninth, there was no conflicting evidence
testified to at trial by any of the eyewitnesses or
the plaintiff herself as to the speed of Boule's
vehicle in excess of the 30 mile per hour limit.
We examined the trustworthiness requirement in State v.
LaPier (Mont. 1984), 676 P.2d 210, 41 St.Rep. 203. There we
noted that the way to determine whether or not the proposed
evidence has comparable guarantees of trustworthiness is to
apply the circumstantial guarantees of trustworthiness found
in the other exceptions in Rule 804 (b)(5):
In regard to the first exception enumerated in Rule
804 (b), former testimony, the Commission states
that the circumstantial guaranties of
trustworthiness can be found in the conditions
under which this type of hearsay statement is made;
that is, the witness is under oath and subject to
cross-examination. The circumstantial guaranty of
trustworthiness found in the second exception,
statements made under belief of impending death,
are the requirements that the statement be made
under a sense of impending death and that it
concern the cause of death. The third exception,
statements against interest, have as their
circumstantial guaranties of trustworthiness the
fact that persons generally do not make statements
against their interest unless those statements are
true. The fourth exception, statements of personal
or family history, also have as their
circumstantial guaranty of trustworthiness a
propensity for the truth. The Commission found
that the guaranty arises "when the topic is such
that the facts are likely to have been inquired
about and that persons having personal knowledge
have disclosed facts which have thus been discussed
in the community; and thus the community's
conclusion, if any has been formed, is likely to be
a trustworthy one-." Citing 5 wigmore - ~vidence,
on
section 1580 at 444.
676 P.2d at 211, 41 St.Rep. at 206.
The facts of this case do not satisfy the requirements
of trustworthiness under Rule 804 (b) (5). There was no sense
of impending death, no statement against interest, nothing
about personal or family history, and Boule's statement was
not made under oath or subject to cross examination.
Defendant argues that there were nine factors insuring the
trustworthiness of Boule's statement to the claims adjuster.
Of the nine factors, three pertain to the supporting evidence
given by the investigating police officer. Her testimony was
admitted at trial, and although it supports Boule's position,
it does not provide the "circumstantial guarantees of
trustworthiness" required by 804(b) (5) necessary to permit
the taped statement to be used as evidence. The officer's
testimony stands in and of itself, it does not guarantee the
truthful nature of Boule' s statement to the adjustor. This
is true also for the evidence given by the automobile
accident reconstruction expert. Also, the fact that there
was no conflicting eyewitness testimony does not directly
attest to Boule's veracity when giving his insurance claim
statement.
Five of the nine arguments focus on the formal
vauthoritative" process used by the claims investigator in
the interview. Defendant implies that since the process was
a formal one, the guarantees of trustworthiness were
comparable. We cannot accept defendant's assertion. There
is too great a leap of logic to be made in reaching the
conclusion that statements made to an insurance claims
adjustor have a guarantee of trustworthiness comparable to
the situations listed in Rule 804 (b) (5).
For these reasons we hold that the recorded statement
was not admissible under the residual exception to the
hearsay rule.
Defendant next argues that the admission of the tape
recorded statement, even if found to be inadmissible hearsay,
was harmless error because it was merely cumulative evidence,
and asserts that because of this, a new trial is not
required. Defendant supports her assertion by pointing to
the testimony given by the investigating police officer that
Boule told her he was driving within the 30 m.p.h. speed
limit, that she believed he was traveling within the speed
limit, and that she felt that the cause of the accident was
Mrs. Heisler's improper left-hand turn. Defendant also
points to the testimony of the accident reconstruction
expert, arguing that his testimony, in addition to the police
officer's, contributed to the conclusion that Boule was not
speeding, and that this evidence was sufficiently clear that
admission of the tape recording was harmless error.
We find that admission of Boule's tape recorded
statement was clearly prejudicial, and not merely harmless
cumulative evidence. The taped statement was introduced to
the jury as evidence without explanation about the
circumstances under which it was taken. The jury did not.
know that the statement was given by Boule to his insurance
company's claim representative. The jury was not exposed to
any foundational information reflecting biases or prejudices
on the part of the adjustor in asking the question or Boule
in answering them. The tape was introduced without
information that the jury needed to put Boule's statement in
proper perspective.
It is a well established general rule that evidence
pertaining to a party's liability insurance coverage is
inadmissible to prove whether the party acted negligently.
Rule 411, M.R.Evid. However, Rule 411 contains the caveat
"This rule does not require the exclusion of evidence of
insurance against liability when offered for another purpose,
such as proof of ... bias or prejudice of a witness."
Clearly, the conditions under which Boule's tape recorded
statement was taken should have been made known to the jury,
as bias and prejudice were both factors potentially effecting
both Boule's answers and the investigator's questions.
Plaintiff should have been permitted to show that the
recorded statement was taken by an employee of defendant's
insurance company. Complete Auto Transit, Inc. v. Wayne
Broyles Engineering Corp. (5th Cir. 1965), 351 F.2d 478;
Mideastern Contracting Corp. v. 0'~oole (2d ~ i r ,19321, 55
F.2d 909. Hence we hold that admission of the recorded
statement without foundational testimony was neither
cumulative nor harmless error.
Respondent's final issue is her argument that the trial
judge abused his discretion by granting Heisler's motion for
a new trial based on In the Matter of D.W.L. (1980)~189
Mont. 267, 615 P.2d 887.
The judge's order granting a new trial stated:
THIS MATTER coming on for hearing on Plaintiff's
Motion for a New Trial and in consideration of the
case of In the Matter of D.W.L. (1980), Mont.
, 615 P.2d 887, the Court fin= that
inadmissible hearsay was improperly admitted during
trial and that the Plaintiff was unfairly
prejudiced thereby. Therefore, it is hereby
ORDERED, that the Plaintiff's motion be and the
same hereby is granted; that the judgment
heretofore entered herein be and the same hereby is
set aside, and that a new trial be had.
Respondent argues that gra.nting a new trial based on the
case cited was an abuse of the District Court's discretion
and should be overturned.
There are several well established rules governing new
trials. The trial court has broad discretion in granting or
refusing to grant a new trial. Ployhar v. Board of Trustees
of Missoula County High Schools (1980), 187 Mont. 363, 609
P.2d 1226. Also, an order granting a new trial will be
upheld if it can be sustained on any ground contained in the
order. Ployhar, supra; Tigh v. College Park Realty Co.
(1967), 149 Mont. 358, 427 P.2d 57. However, a prima facie
case of abuse of discretion may be made by discrediting the
grounds specified for granting the new trial. Tiqh, supra.
The question before this Court then is whether the order
may be sustained on the ground specified by the District
Court as the reason for granting the new trial. In this
case, the District Court relied on In the Matter of D.W.L.
for its order granting a new trial. The appellant argues
that D.W.L. is "completely distinguishable" from the instant
case.
The analogy between this case and In the Matter of
D.W.L. is sufficient to uphold the District Court's order.
In the Matter of D.W.L. involved a youth accused of taking a
car without the owner's consent. The complaining victim
signed a stolen auto report on the day his vehicle was
stolen, but died before the hearing. Because of his death,
the State faced the problem of proving that the vehicle was
taken without the owner's consent. The stolen auto report
was inadmissible hearsay. In order to establish this element
of the crime, the State had one police officer testify that
he had watched the complainant sign the stolen property
report and another officer testify that he had picked up the
stolen property report from the complainant's residence.
This Court found the testimony of the two officers to be
inadmissible hearsay, offered only to prove the truth of the
matter asserted, i.e., the fact that D.W.L. exerted
unauthorized control over the car.
Although we are not confronted with the same factual
scenario in this case, the rule of law established in In the
Matter of D.W.L. is certainly applicable here. Clearly the
only reason to play Boule's tape recorded statement for the
jury was to prove the truth of the matter asserted, that
Boule was driving within the speed limit and that it was
Heisler's poor driving that caused the accident. The
recording was hearsay. Further, in D.W.L., this Court found
that the policemen's testimony regarding the stolen property
report was not admissible under any of the exceptions to the
hearsay rule. Certainly the statement in D.W.L. was more
reliable than the one given in this case, as it was made in
the presence of a police officer for an official
investigation. Nonetheless, we did not find any applicable
exceptions to the hearsay rule. We believe that application
of the rule of law established in In the Matter of D.W.L. was
logical and that the District Court exercised proper
discretion in ruling that a new trial was necessary.
Affirmed.
'3,.
Justice
Mr. Justice L. C. Gulbrandson, specially concurring:
I concur in the result but not in all that is said
in the Opinion.
" Justice
/