Summary
noting that the general rule applies to related criminal proceedings with the two notable exceptions of assault and battery and malicious prosecution, where the evidence is only limited
Summary of this case from Brawner v. Allstate Indemnity CompanyOpinion
February 6, 1962 —
March 6, 1962.
APPEAL from a judgment of the municipal court of Brown county, circuit court branch: RAYMOND J. RAHR, Judge. Reversed, and a new trial granted.
For the appellants there was a brief by Everson, Whitney, O'Melia Everson of Green Bay, and oral argument by James L. Everson.
For the respondent there was a brief by Boltz Steinbrinck of Green Bay, and oral argument by Richard A. Boltz.
Action to recover for personal injuries sustained when the plaintiff Emmett Anderson was struck by an automobile driven by the defendant Viola Saunders. The jury found the defendant causally negligent with respect to speed, lookout, and management and control of her car, and the plaintiff not negligent, and awarded the plaintiff stipulated medical expenses and property damages, $1,798.85 for loss of income, which was reduced by the court to $1,198.85, and $7,000 for past and future pain and suffering. Judgment was entered on the verdict as amended, and the defendants appealed.
Different versions of the accident were given. According to the plaintiff, his car ran out of gasoline while he was driving north on Broadway street in Green Bay on the afternoon of March 18, 1959. He secured a can of gasoline and a funnel from a filling station and began pouring gas into the tank of his car which was then parked on the right side of Broadway at the edge of a snowbank. While pouring gas into the tank of his car he stood at its left rear fender and noticed the car of the defendant approaching from the south. He stopped pouring and walked around the end of the car and stood at its rear, immediately behind the bumper and facing north. While he was in that position, the plaintiff claimed the right front bumper of defendant's car struck him and pulled him around the left rear corner of his car and pinned him against the car's left rear fender.
The defendant claimed she was traveling in her lane in a line of northbound traffic. There were cars coming from the opposite direction, one of which began to encroach upon her lane. She slowed down, but could not get too far over to the right because of parked cars on her side of the street. While in this predicament, the plaintiff suddenly walked out from between the parked cars when she was about a half a car length away from him. She claimed it was impossible for her to stop sooner. She applied her brakes but was unable to control her car due to the icy condition of the road and she evidently slid over, pinning the plaintiff between the fenders of the two vehicles when her car was practically stopped. There were snowbanks along both sides of Broadway, but the condition of the street, the amount of traffic at the time of the accident, and whether other cars were parked along Broadway behind the plaintiff's car are in dispute.
The plaintiff sustained injuries to his left leg and received emergency treatment at a hospital. He remained in bed at home for three days. An examination revealed muscle spasm and reddening in the left leg. About a month later, an examination by another doctor showed traumatic synovitis of the left knee, atrophy of the left quadriceps, and a possible chondromalacia of the left patella. The plaintiff, who was twenty-nine years at the time of the accident, was unable to perform his duties as a carpet layer for three months. He still experiences discomfort from the injury.
During the trial, a police officer, who was called to the scene of the accident, testified the defendant told him she had been traveling at a speed of 25 to 30 miles per hour (the speed limit was 25 miles per hour) and admitted having had two drinks of brandy before the accident. Over objections, the officer testified he arrested the defendant for careless operation of a motor vehicle. Also over objections, the officer testified what plaintiff stated to him was his version of the accident. Later in the trial, the court ordered the testimony of the police officer relating to the plaintiff's story stricken from the record as not part of the res gestae and instructed the jury to disregard it.
The questions on appeal are: Did the trial court err in admitting the evidence of the defendant's arrest; and if so, was the error prejudicial? The respondent claims no error was committed because the defendant had admitted to the officer she exceeded the legal speed limit and the question concerning the arrest was a natural consequence of that admission. It is also claimed the testimony was not prejudicial because the defendant's version of the accident was physically improbable and the evidence went to the negligence of the defendant only.
It was error to admit testimony regarding the arrest. Plaintiff was inquiring into the arrest for the purpose of establishing the negligence of the defendant. The officer did not arrest the defendant for speeding but for careless operation of a motor vehicle, which included the very issues in the case. But even if the defendant had been arrested for speeding, the evidence would have been immaterial. The fact a person is arrested upon a certain charge is as consistent with innocence as with guilt, and to admit the arrest as evidence would be to accept the fact based upon the police officer's opinion as to the defendant's guilt. Fitch v. Bemis (1935), 107 Vt. 165, 177 A. 193; Barge v. House (1952), 94 Ohio App. 515, 110 N.E.2d 425; 3 Wigmore, Evidence (3d ed.), p. 545, sec. 980 a. Nor does an arrest or a conviction constitute an admission of guilt. Kelly v. Simoutis (1939), 90 N.H. 87, 4 A.2d 868.
In auto negligence cases on facts similar to those at bar, it has been held the admission of testimony of arrests, of convictions, or of filing a complaint by a police officer, is not only error but prejudicial error requiring reversal. We hold admitting the testimony of the police officer concerning the arrest of the defendant was prejudicial. The two versions of how the accident happened were in sharp contradiction. Inconsistencies and improbabilities existed in both versions. The issues made would tax the ingenuity of the average jury and would resolve themselves into a question of credibility. This testimony was not merely cumulative. The effect of allowing the police officer to testify concerning the arrest was the equivalent of telling the jury, in his opinion, the defendant was at fault and the plaintiff was not. This is opinion evidence on the very question the jury was to decide, which may well have been the deciding fact in the jury's rejection of the defendant's version of the accident.
Landt v. Kingsway Equipment Leasing Corp. (1956), 159 N.Y. Supp.2d 453; Fitch v. Bemis, supra; Paul v. Drown (1937), 108 Vt. 458, 189 A. 144; Barge v. House, supra; Burbank v. McIntyre (1933), 135 Cal.App. 482, 27 P.2d 400; Lincoln Taxi Co. v. Rice (Ky. 1952), 251 S.W.2d 867.
Moseley v. Ewing (Fla. 1955), 79 So.2d 776; Kelly v. Simoutis, supra; Walther v. News Syndicate Co. (1949), 276 App. Div. 169, 93 N.Y. Supp.2d 537.
Reffelt v. Brooklyn Daily Times (1920), 191 App. Div. 923, 181 N.Y. Supp. 951.
The respondent relies for an analogy on Winston v. Weiner (1958), 2 Wis.2d 584, 87 N.W.2d 292, in which this court held the error of the trial court in finding, as a matter of law, the driver of an automobile was negligent as to lookout was not prejudicial because the jury found him causally negligent in two other respects and the driver of the other car not negligent. The principle of the Winston Case that the error would go only to the negligence of the defendant in view of the finding of no negligence on the plaintiff's part is not applicable. Here, the error embraced all the respects in which the negligence question was submitted and was of such a nature which, upon the conflicting testimony, would affect the question of the respondent's negligence.
The second question raised on appeal is whether the testimony given by the police officer of the plaintiff's version of the accident, which was later stricken as being erroneously admitted as part of the res gestae, was prejudicial in view of the fact the jury was instructed to disregard it. If this were the only question in the case, we would have some hesitancy in granting a reversal on the ground of prejudice, although we must point out an officer of law enforcement testifying as to the plaintiff's version of an accident, which version is in contradiction to the defendant's version, probably carries more weight with the jury than the testimony of a layman. In view of the fact we believe the admission of testimony concerning the conviction was prejudicial error, we need not rest the case on this point.
The appellants claim the damages are excessive. On motions after verdict, the trial court stated in its memorandum opinion it would have been much better satisfied had the jury found a lesser amount of damages for pain and suffering, and the amount found was generous and liberal but not necessarily excessive. This statement rests upon the trial court's belief the admission of the officer's testimony was not prejudicial. Taking the trial court's statement concerning the amount of damages awarded, it is at least so high, if not excessive, as to indicate the jury might well have been influenced by the error. See Smedley v. Milwaukee Automobile Ins. Co. (1961), 12 Wis.2d 460, 107 N.W.2d 625. This indication is strengthened by the fact the jury did award excessive damages for loss of income which were reduced by the court on the defendants' motion. We believe a new trial should be granted on all issues.
By the Court. — Judgment reversed, and a new trial granted on all issues.