Opinion · Wilaw Wisconsin

NOVAKOFSKI v. STATE FARM MUT. AUTO. INS. CO., 34 Wis.2d 154 (1967)

148 N.W.2d 714

Type
Opinion
Court
Wilaw Wisconsin
Jurisdiction
Wilaw
Date
1967-02-28
Topic
general

NOVAKOFSKI v. STATE FARM MUT. AUTO. INS. CO., 34 Wis.2d 154 (1967) 148 N.W.2d 714 NOVAKOFSKI, Respondent, v.

Citator

UpLaw has not yet analyzed NOVAKOFSKI v. STATE FARM MUT. AUTO. INS. CO., 34 Wis.2d 154 (1967). The absence of a flag is not a finding that it is good law.

NOVAKOFSKI v. STATE FARM MUT. AUTO. INS. CO.,34 Wis.2d 154(1967)
148 N.W.2d 714
NOVAKOFSKI, Respondent, v. STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, Appellant.
Supreme Court of Wisconsin.
February 1, 1967. —
February 28, 1967.
Page 155
APPEAL from an order of the circuit court for Winnebago county: ARNOLD J. CANE, Circuit Judge.Affirmed.
Action by plaintiff Mary Novakofski against defendant State Farm Mutual Automobile Insurance Company (hereinafter defendant) to recover for personal injuries sustained in a one-car accident. The car involved was driven by plaintiff's husband, Max Novakofski.

After issue was joined defendant moved for summary judgment. In support of the motion there was filed an affidavit of defendant's counsel which incorporated by reference the adverse examination of plaintiff taken before trial. Attached to the affidavit was a copy of the death certificate of Mr. Novakofski and a copy of the official police report of the accident. In opposition to the motion for summary judgment plaintiff filed an affidavit of Dr. Harold G. Danford, a licensed doctor of medicine specializing in internal medicine and anPage 156affidavit of Peter S. Nelson, one of her attorneys. The Nelson affidavit avers that the county coroner who signed the death certificate is not a licensed or practicing physician in the state of Wisconsin.

The facts of the accident as established by plaintiff's adverse examination, the death certificate and the police report are these: On the morning of April 5, 1963, Mr. and Mrs. Novakofski, who were residents of the city of Menasha, drove to a Menasha supermarket where they purchased groceries. Upon leaving the supermarket the couple started toward Appleton with Mr. Novakofski driving. As they were proceeding northeasterly on Appleton road, but still within the city limits of Menasha, the car veered to the right, left the traveled portion of the highway, went over the curb and struck a tree. Appleton road is two-laned and level. The pavement was dry and the weather clear. At the time the car left the roadway Mrs. Novakofski "was fooling around with her purse" and does not know what happened. The collision rendered her unconscious and she did not recover consciousness for two days. Mr. Novakofski was dead upon arrival at Theda Clark Hospital in Neenah.

By order dated July 6, 1966, the circuit court denied the motion for summary judgment. Defendant has appealed.
For the appellant there was a brief byHenry P.HughesandThomas E. Hughes, both of Oshkosh, and oral argument byHenry P. Hughes.

For the respondent there was a brief byAdamsWoodrowof Menasha, andBenton, Bosser, Fulton, MennNehsof Appleton, attorneys, andPeter S. Nelsonof Appleton of counsel, and oral argument byMr. Nelson.
CURRIE, C. J.
The facts of the instant accident are strikingly similar to those inWood v. Indemnity Ins.Page 157Co.1In that case we held that an unexplained departure of a motor vehicle from the traveled portion of the highway invokes the doctrine ofres ipsa loquiturwhich permits the jury to infer negligence from the mere occurrence of the accident.

The same contention is advanced here that was advanced inWood, viz., that the doctrine ofres ipsaloquituris rendered inapplicable by evidence that the accident was caused by a heart attack sustained by the driver. InWoodwe quoted with approval from Prosser2that the mere introduction of inconclusive evidence suggesting another cause of the accident will not render the doctrine ofres ipsa loquiturinapplicable so as to entitle the defendant to a directed verdict.

Essentially defendant's position on this appeal is that its moving papers establishprima faciethat Mr. Novakofski's death was due to coronary thrombosis, which fact operates to rule outres ipsa loquitur, and that itsprima facieshowing has not been rebutted. Defendant grounds its claim of aprima facieestablishment of coronary thrombosis as the cause of death upon (1) the death certificate; (2) the police report; and (3) a statement by plaintiff in her adverse examination.

Sec.889.18(formerly sec. 327.18), Stats., provides in part as follows:

"Official records. (1) As EVIDENCE. Every official record, report or certificate made by any public officer, pursuant to law, is evidence of the facts which are therein stated and which are required or permitted to be by such officer recorded, reported or certified, except . . . .

"(2) COPIES AS EVIDENCE. A certified copy of any written or printed matter preserved pursuant to law inPage 158any public office or with any public officer in this state, or of the United States, is admissible in evidence whenever and wherever the original is admissible, and with like effect."

Both the death certificate and the police report qualify as an official record under the aforequoted statute. The death certificate lists "coronary thrombosis" as the cause of death while the police report states under the heading "Nature of Injuries" with respect to Mr. Novakofski "apparently died of a heart attack before collision. Dr. Forkin d.o.a." The letters "d.o.a." apparently stand for "dead on arrival."

The death certificate is signed by a lay coroner, not a physician. The statement therein that death was due to "coronary thrombosis" is thus a medical conclusion drawn by a lay coroner. If the coroner were subpoenaed to testify as to the cause of death such a conclusion on his part would be inadmissible.3Therefore, his statement in the death certificate is not admissible to establish the cause of Mr. Novakofski's death. As this court stated inSmith v. Rural Mut. Ins. Co.:4

"We have held that conclusions stated in official records are not admissible under this section [327.18(1)].Estate of Eannelli(1955),269 Wis. 192,212,68 N.W.2d 791;Jacobson v. Bryan(1944),244 Wis. 359,368,12 N.W.2d 789.

"If an official cannot testify upon the witness stand to the facts contained in the report, the statute does not apply and the report is inadmissible."

Furthermore, even if it were held that the death certificate establishedprima faciethe cause of death as coronaryPage 159thrombosis, it is completely destroyed by Dr. Danford's affidavit that it is impossible for a layman to diagnose the cause of death as being due to coronary thrombosis. InLubner v. Peerless Ins. Co.,5where competent medical evidence established that it was impossible to determine by the procedure followed by a lay coroner that drowning was the cause of death, the coroner's statement as to the cause of death contained in a death certificate was held incompetent.

With respect to the police report we have a medical conclusion by lay police officers. Such a conclusion is inadmissible because the police officers could not testify to the conclusion if called as witnesses.6Furthermore, the statement with respect to the cause of death appears to be grounded on information supplied by a Dr. Forkin who is neither identified in the police report nor in any other portion of the record. The statement clearly constitutes hearsay evidence.

Lastly, there is the following reference to the cause of death contained in Mrs. Novakofski's adverse examination:

"Q.Did you talk to a doctor who had examined the body after it came to the hospital?A.Well, after I was — from my `constant care' he took me up, Doctor Hildebrand — Bill Hildebrand — he talked to me. He said, `Mary, do you know what Max really died of?' He said that he had a heart attack!"

What Dr. Hildebrand told Mrs. Novakofski is hearsay and would be inadmissible at trial as probative evidence on the issue of the cause of death.7InThompson v.Page 160Dairyland Mut. Ins. Co.8hearsay evidence contained in a deposition was held inadmissible where it was offered in an attempt to raise a factual issue to preclude summary judgment.

The foregoing analysis of the evidence relied upon by defendant demonstrates that defendant has failed to establishprima faciethat the cause of Mr. Novakofski's death was coronary thrombosis. Therefore, the trial court properly denied its motion for summary judgment.By the Court. — Order affirmed.
  1. (1956),273 Wis. 93,76 N.W.2d 610. See alsoDewing v. Cooper(1967),33 Wis.2d 260,147 N.W.2d 261. ↩
  2. Prosser, Law of Torts (2d ed.), p. 216, sec. 43, footnote 20. ↩
  3. The law does, however, permit limited testimony of a medical nature by one not licensed as a medical doctor, if he is, in fact qualified as an expert.Casimere v. Herman(1965),28 Wis.2d 437,442,137 N.W.2d 73. ↩
  4. (1963),20 Wis.2d 592,600,123 N.W.2d 496. ↩
  5. (1963),19 Wis.2d 364,372,120 N.W.2d 54. ↩
  6. Smith v. Rural Mut. Ins. Co., supra, footnote 4. ↩
  7. This does not mean that the quoted answer of Mrs. Novakofski may not be utilized by defendant's counsel at trial in cross-examination of Mrs. Novakofski on some issue other than cause of death. ↩
  8. (1966),30 Wis.2d 187,190,140 N.W.2d 200. ↩