Opinion
November 6, 1959 —
December 1, 1959.
APPEAL from a judgment of the circuit court for Milwaukee county: FRANCIS X. SWIETLIK, Circuit Judge. Reversed.
For the appellants there was a brief and oral argument by Charles Saggio of Milwaukee.
For the respondents there was a brief by Wickham, Borgelt, Skogstad Powell, attorneys, and Gerald A. Flanagan and Norman C. Skogstad of counsel, all of Milwaukee, and oral argument by Mr. Flanagan.
Action in the name and on behalf of Donna Marlene Severson, also known as Donna Auseth, a minor, by guardian ad litem, to recover damages for personal injuries sustained by the minor when struck by an automobile driven by the defendant Lucille Rehberg Owen. By a separate cause of action in the same complaint Lora Belle Auseth, mother of said minor, sought recovery of medical and hospital expenses and damages for loss of services of said minor. Gregor Owen, the husband of Lucille Rehberg Owen, was joined as a defendant on the ground that Mrs. Owen was his agent and was driving his automobile at the time of the accident. The insurer of the automobile was also joined as a defendant. The case was tried to the court and a jury.
The accident occurred on West Greenfield avenue in the county of Milwaukee at about 6 p. m., on September 18, 1955, while Donna was crossing a three-lane highway from the north to the south side thereof at a point other than a crosswalk. At the time there were two lanes of traffic proceeding westerly and one lane of traffic proceeding easterly. The two lanes of westerly traffic were halted and not in motion when Donna made her way between such stopped vehicles before entering the southerly lane.
The trial court held that Donna was causally negligent as a matter of law with respect to yielding the right of way to the automobile driven by Lucille Rehberg Owen, and answered the questions in the special verdict relating to this issue so as to find Donna causally negligent in this respect. The jury by its answers to the remaining questions of the verdict found that Donna was not negligent with respect to lookout; found that Mrs. Owen was causally negligent with respect to the speed at which she drove the automobile but that she was not negligent as to lookout; and attributed 40 per cent of the total aggregate negligence to Mrs. Owen and 60 per cent to Donna.
Judgment was entered on February 5, 1959, dismissing the complaint of the plaintiffs and awarding costs and disbursements to the defendants. The plaintiffs have appealed.
The plaintiffs' brief raises 11 assignments of error. We have carefully considered them and find that none have any merit other than the one to which this opinion is directed.
Donna was eleven years of age at the time of the accident. During the course of her testimony she stated that she could not cross the highway, when she arrived at the place where she intended to do so, because the traffic was then moving. She was then asked these questions and gave these answers thereto:
" Q. And how long did you wait there? A. About ten or twenty minutes.
" Q. And after you waited ten or twenty minutes, what happened? A. The man in the car closest to me motioned and said I could go."
Counsel for the defendants moved to strike this last answer as hearsay and the trial court granted such motion.
We deem this ruling constituted error because such stricken answer was material on the issue of comparative negligence, and as to such issue it was not hearsay at all. This is because it was not offered to establish the truth of what the man said, but merely that he said it. While acting on such man's statement did not relieve Donna of negligence, a jury could well conclude that she was less negligent in stepping into the eastbound traffic lane when she did than she would have been if she had not been given such assurance at all.
McCormick, Evidence, p. 460, sec. 225, defines hearsay evidence as follows:
"Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter."
The reason why there is included in the definition the requirement that the statement be offered to establish the truth of the fact asserted, is because it is only in such a situation that it is material that the safeguards of oath, confrontation, and cross-examination should not be dispensed with. If the statement is not offered to prove the truth of the fact asserted, then the only thing material is whether the statement was made. As to that fact, there is no more objection to permitting a witness to testify as to what he heard said than as to what he may have observed, and he may be cross-examined as to both.
Such excluded evidence should have been admitted and the jury instructed that it could only consider the same in determining what percentage of the total aggregate negligence was attributable to Donna, and for no other purpose. Because the admission of such testimony might well have caused the jury to answer the comparative-negligence question more favorably to Donna than it did, the error in excluding it was prejudicial, and a new trial should be granted. We have given consideration to the question of whether the new trial should be confined to the negligence issues, or whether it should be had on the issue of damages as well, and have concluded that it should extend to all issues.
By the Court. — Judgment reversed, and cause remanded with directions that a new trial be had consistent with this opinion.
MARTIN, C. J., and BROADFOOT, J., dissent.