Pacific Northwest Bell Telephone Co. v. Century Home Components, Inc.

HOWELL, J.,

dissenting.

I do not agree with the majority that the trial court erred in refusing plaintiffs’ motion to require defendants’ counsel to produce the statement in question.

When Hood testified that he had told, or had attempted to tell, Sgt. Ayers about various statements allegedly made by Jane Davis to others that her brother started the fire, the plaintiffs objected on the grounds that it was an attempt to impeach Ayers on a collateral matter, and later, that a proper foundation had not been laid for impeaching testimony. Arguments were heard on the objection, and it was at this time that counsel for defendants stated that he had a statement made by Jane Davis before a court reporter, but that it contained a lot of “garbage.” Plaintiffs again objected to further references to statements by Jane Davis on the ground of hearsay. The court inquired of defendants’ counsel if he were offering the evidence as impeaching evidence of Sgt. Ayers. Counsel said he was only offering it to show that Ayers made a “lousy investigation” of the fire. The court then overruled the plaintiffs’ objection to the testimony on the ground that the evidence was substantive evidence challenging the basis of Ayers’ opinion.

After concluding his cross-examination of Hood, *347 plaintiffs’ counsel then requested that defendants be required to produce the written statement given by Jane Davis before the court reporter. Plaintiffs’ counsel stated:

“MR. LUVAAS: Okay. We believe we have the right to require this document produced so that we might inspect it as we have no knowledge whatsoever as to anything, except what this witness has just stated on the witness stand. In the event Counsel fads or refuses to do so, we would contend that the document disavowed any admission or statement by Steven Reynolds to the deponent as to the matter in question, and denied that he had admitted setting this fire in this manner, and we would request the Court to instruct the Jury to that effect in accordance with sub-section 2 of ORS 41.615. I would also refer you to the Green Book on Evidence, Sections 13.3 and 13.6 on notice to produce.”

Defendants’ counsel then argued that the statement was his “pure work product” and that “Mr. Luvaas has no right to it.” Plaintiffs’ counsel stated:

“MR. LUVAAS: The implication left the Jury by their witness was that this was a deposition which means a great deal. They know they’re under oath before a Court Reporter. There was also an inference, and that’s the whole purpose of all of these things we have been going through pertaining to this phantom witness, that she has stated repeatedly, and to the diverse persons that her brother set the fire and told her he set the fire in one way or another. We don’t know which way he even supposedly set it; one of those statements that was offered as one of the proffered exhibits 39 through 43 says it’s been fusees, and we also know there were two fires, so it’s highly questionable exactly which fire this nine-year-old boy would have been talking about, and he was a nine-year-old boy.

*348 “We are not permitted to cross-examine the boy. We can’t find him. We are not permitted to cross-examine his sister. We never heard of her until just now, until Mr., they questioned Sgt. Ayers about her, and the Jury is left with the impression that this girl has stated this to a number of people, and that they have her sworn deposition in proof thereof.

“We are certainly entitled — Now, it may be a work product if Counsel so alleges, because it’s a statement taken in his office, but if he is going to bring before this jury such a statement taken in his office, he had better let me see it, because I have a right, in all fairness, to see it.”

The court denied plaintiffs’ motion to produce. Counsel then stated that he would like tune to “subpoena the record” and for further cross-examination after he had examined the record. After further colloquy with the court plaintiffs’ counsel requested leave “to ask a few more questions of him [Hood] now.” The court granted permission and then stated that he wanted to explain his reasons for denying plaintiffs’ motion to produce. The court stated:

“* * *. Secondly, if it’s anything, it’s at most a statement made by a person and, to be perfectly frank with you, there is nothing that I have heard attributed to her which would be admissible if she came in here and tried to say it. The only reason the Court has permitted any of this in is because it gives the Jury an ability to know what Ayers knew on the day he sat here on the witness chair and said he believed the kids, and that’s all it does, and if the, either defendant tried to offer that statement here, I know of no theory by which it can be received, and if you tried to offer it, I know of no theory by which it could be received, because it didn’t even exist, according to the evidence we have so far, at the time that the last witness was talking to Sgt. Ayers. It came into being only recently.

*349 “MR. ATHERLY: Actually that was wrong, for whatever it was worth, he didn’t have the statement in front of him, but the statement was actually taken on September 17th, and the witness talked to Sgt. Ayers on about September 19th.

“THE COURT: But, in any event, he never presented the statement to Sgt. Ayers. There is no evidence of that.

“MR. ATHERLY: That’s correct, Your Honor.

“MR. LUYAAS: Well, Your Honor, under that clearing' up of the error, I will move at this time that this entire testimony pertaining to this be stricken from the record, and the Jury be instructed to disregard it because this is exactly what Sgt. Ayers said, that Mr. Hood represented to him in the last conversation just a few weeks ago that they had obtained some kind of a statement from Janie, I think that was her name, Janie, or Jeanie, or whatever her name was, but it was kind of ambiguous, and wasn’t satisfactory as any direct statement of anything or that her brother had really said anything.

“Now, I recall that testimony very correctly, and that she had refused to sign something. Now, this is obviously then the thing that Sgt. Ayers was referring to so it’s no impeachment, because it isn’t inconsistent with what he said.

“Therefore, since it’s not inconsistent, it does not discredit Ms testimony in any way or discredit his investigation because it’s exactly the same conclusion he reached.

“THE COURT: You can argue that to the Jury.

“MR. LUYAAS: Well, our motion, nevertheless, will be on those grounds, to strike the questions and the answers in their entirety pertaining to Hood’s conversations with Sgt. Ayers, and, Your Honor, we will further move then that the Court instruct the Jury as to the exact limited purposes for wMch they were permitted to hear tMs type of *350 testimony, and that it cannot be considered by them as substantive evidence.” (Emphasis supplied.)

The motion to strike was denied.

I do not believe that the record shows that plaintiffs wanted the Davis statement, which was taken before the court reporter, to impeach Hood’s testimony. Throughout the objections to Hood’s testimony and the argument before the court, plaintiffs were objecting because of the attempted impeachment of Ayers. Moreover, when it was agreed that this particular statement had not been presented by Hood to Sgt. Ayers, plaintiffs’ counsel stated, “Well, Your Honor, under that clearing up of the error” he would move to strike all of Hood’s testimony regarding Hood’s conversations with Sgt. Ayers because it was not impeaching evidence. I believe that the demand for the production of the particular Davis statement in question was waived when counsel stated “with that clearing up of the error” he would then move to strike Hood’s testimony.

Under this state of the record I do not believe any reversible error was committed when the court refused plaintiffs’ motion to produce.

I also disagree with the majority’s procedure of remanding the ease to the trial court for inspection of the Davis statement and a determination of its contents to decide whether a new trial should be allowed or the judgment reinstated. This is an absolutely novel procedure to be adopted by this court in reversing and remanding a case for a new trial. The authorities cited by the majority involve cases where liability was established, and the case was remanded for a trial only on the issue of damages. I appreciate the majority’s mo *351 tive in wanting possibly to avoid another lengthy trial, but on a remand for a new trial this court has no authority to require the trial court to hold a separate hearing to determine the contents of a particular document, whether certain evidence is admissible or prejudicial, or, in this case, to take any action except to proceed with a new trial.

On appellants’ and respondents’ petitions for rehearing, filed January 4, 1972. Former opinion filed December 15, 1971, 261 Or 333 , 491 P2d 1023 .

I would affirm.