Genova v. Genova

554 N.E.2d 1221, 28 Mass. App. Ct. 647, 1990 Mass. App. LEXIS 269
CourtMassachusetts Appeals Court
DecidedJune 4, 1990
Docket88-P-719
StatusPublished
Cited by2 cases

This text of 554 N.E.2d 1221 (Genova v. Genova) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Genova v. Genova, 554 N.E.2d 1221, 28 Mass. App. Ct. 647, 1990 Mass. App. LEXIS 269 (Mass. Ct. App. 1990).

Opinions

Kass, J.

Alice Genova, the plaintiff, brought an action against her husband, Attilio E. Genova, seeking compensation for injuries suffered by reason of his negligence while driving an automobile in which she was a passenger. The trial was bifurcated. On the issue of liability, a jury returned a general verdict for the defendant. The plaintiff appeals, asserting primarily that a report of the accident which her husband filed with the police was wrongly admitted in evidence. We affirm.

What the jury had to consider was whether the defendant husband had been negligent in attempting a U-turn and, if [648]*648so, whether that negligence had been a proximate cause of the accident. On the wife’s version of events, the husband negotiated the U-turn without properly checking what traffic was coming from behind him. In his accident report, filed conformably with G. L. c. 90, § 26, the husband’s account was that he had looked in his side-view mirror before beginning to negotiate the U-turn, that he had seen a car heading in his direction about 600 feet away and travelling at a moderate speed. He had proceeded into his turn, but when he had almost completed it, being mostly over the center line of the street, a third car came up very fast — at 70 miles per hour — passed the car the defendant had earlier spotted and slammed into the Genova vehicle on the driver’s side.

At trial, the account the husband gave of the accident on the witness stand was similar but less favorable to him in some respects. He testified that he checked traffic in. his rear-view mirror (rather than his side-view mirror), although, during cross-examination he reflected he might have looked in both; that he saw a car about one eighth mile away which was not going fast; he signalled with his directional and began his U-turn; he did not look back again; when he heard the screech of brakes, he looked to the left and saw a car ten to fifteen feet away; when the collision occurred he was five feet over the double yellow line; the oncoming vehicle was moving about fifty miles per hour (rather than seventy); the oncoming vehicle had left skid marks of sixty feet (rather than sixty-five); and he did not see the car he had originally viewed in the mirror (rather than observing it being passed by the vehicle which hit his).

The differences are matters of detail: the speed of the oncoming vehicle, the skid marks, and whether it was passing the vehicle the husband first saw in his mirror. For purposes of analysis, we are prepared to assume that the accident report version was more favorable to the husband to an extent that the report may have been a factor in the jury’s verdict; i.e., its admission in evidence may have affected the outcome.

The husband’s accident report was received in evidence during cross-examination by defense counsel of a policeman, [649]*649Officer Leather, who had been called by the plaintiff. Officer Leather had initially come to the accident scene and had conducted some follow-up investigation. Defense counsel had asked Officer Leather whether he had with him the husband’s accident report. Leather answered, “Yes, sir.” There ensued a colloquy.

Defense Counsel: “I’d like to offer it.”

Plaintiff’s Counsel: “Objection, your Honor.”

The Court: “What ground? Just one or two words, that’s all I need. What ground?”

Plaintiff’s Counsel: “Self-serving, your Honor. Not kept in the ordinary course of business. The Registry would be proper place, and certified copy.”

The Court: “Objection’s overruled.”

After a short interval to allow for elision of references in the report to the defendant’s insurance carrier, the report was admitted in evidence.

That the report could properly be admitted is not instantly obvious. Certainly in the hands of Officer Leather, it was hearsay. Indeed, even had the report been his, made on the basis of facts furnished to him by witnesses, it would have been excluded for the reasons explicated in Kelly v. O’Neil, 1 Mass. App. Ct. 313, 316-317 (1973). On second look, however, the report was rightly admitted.

1. The adequacy of the objection. Relying largely on Commonwealth v. Fatalo, 345 Mass. 85, 87 (1962), the plaintiff argues that uttering the word, “self-serving,” constituted an adequate statement that the proffered evidence was objected to on hearsay grounds. In the Fatalo case the court explained that no principle of law excludes evidence simply because it is self-serving. Ibid. The evidence which a party offers will be as self-serving as that party can make it. See United States v. Matot, 146 F.2d 197, 198 (2d Cir. 1944). Extrajudicial declarations of a party offered in the party’s behalf are ex-cludable not because they are self-serving, but because they offend against the hearsay rule. Fatalo at 87. Thus, in the Fatalo case the self-serving evidence was admitted because it was not hearsay. To state that an excludable self-serving [650]*650statement is one which is hearsay does not. stand for the obverse, that “self-serving” is code for hearsay when making an objection.

It will be recalled that plaintiff’s counsel also said, “Not kept in the ordinary course of business. The Registry would be proper place, and certified copy.” That was a closer signal. The document was not being offered, however, as a business record under G. L. c. 233, § 78, and, thus, the objection was still obscure. We may affirm on the ground that a correct objection was not made to the defendant’s accident report when it was offered. See Sidney Binder, Inc. v. Jewelers Mut. Ins. Co., ante 459, 463-464 (1990), and authorities cited.

2. Basis for admission of the accident report on the merits. Even if a proper objection had been made, in the out-of-the-ordinary circumstances which attended this case, the accident report could have been received in evidence as a prior statement of the defendant which was inconsistent with his testimony at trial or in the nature of an admission of the defendant. What makes this otherwise run-of-the-mill negligence case uncommon is that it is between a wife and a husband.

When a spouse (in this case the wife) seeks through a law suit to recover damages for injuries suffered in a car accident caused by the negligence of the other spouse (the husband), one may suppose the husband’s enthusiasm for the defense is muted. Assuming the marriage is intact, as it is in this case, the family unit wins only if the husband loses. Any recovery will come not from his pocket, but from that of his insurance carrier. See Sorensen v. Sorensen, 369 Mass. 350, 362-363 (1975).

With a defendant in such a state of mental conflict at trial, much is to be said in favor of a generous disposition to admission of prior extrajudicial statements more favorable to the defendant than his testimony at trial. The former may have spontaneity and be contemporaneous; the latter colored [651]*651by the defendant’s considerable stake in losing.1

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Related

Flood v. Southland Corp.
601 N.E.2d 23 (Massachusetts Appeals Court, 1992)
Genova v. Genova
554 N.E.2d 1221 (Massachusetts Appeals Court, 1990)

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Bluebook (online)
554 N.E.2d 1221, 28 Mass. App. Ct. 647, 1990 Mass. App. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/genova-v-genova-massappct-1990.