Nelson v. Seiler

Bond, C. J., delivered the opinion of the Court. Charles Seiler, while walking in the bed of Roland Avenue in Baltimore City, was struck by an automobile driven by Arthur L. Nelson, and recovered a judgment against Nelson in this case for his damages; and the defendant brings up for review rulings during the course of the trial on offers of evidence, on a motion to withdraw a juror and continue the cause for misconduct of plaintiff’s counsel to the prejudice of the defendant, - and on instructions prayed by the defendant. The accident occurred at night on June 15th, 1926. Seiler, after having ridden on an outbound car far beyond his destination, walked along Roland Avenue back toward the center of the city, and according to his own testimony, was walking-out from the sidewalk to the car tracks at the street crossing to wait for an inbound car when the automobile struck him.

Nelson, who was driving the automobile — owned by his father —testified that he struck Seiler at a point in the bed of the street between crossings, and did not see Seiler until his automobile was too close to stop. The street at that point is lined by trees, and the car tracks are walled in by hedges, and there was a question of the extent to which the foliage obscured the road, -and a question 'of the strength of the street lighting. The defendant’s witnesses testified, too, that tar and gravel recently spread on the road bed added to the difficulty in seeing Seiler. There was testimony that the ⁶⁷ plaintiff had been under the influence of liquor that day and night, and testimony to the contrary.

The appellant’s father was joined as a defendant, but at the end of all the testimony and the rulings on prayers for instructions, a judgment of non pros, was taken as to that one defendant. The exceptions group themselves about seven questions, and two of these of chief importance are here considered first. One is a question whether a defendant testifying in such a suit may for the purpose of impeaching his veracity as a witness be asked whether he has been arrested and convicted of violations of the motor vehicle law in the past. The defendant here, now appellant, was asked whether he had not been convicted before a magistrate, in Baltimore Oounty, in 1924, of exceeding the legal speed limit, and he answered that he had been.

Again he was asked whether before that he had not been convicted and fined for reckless driving in Montgomery Oounty, and he answered that he had not. He was asked whether he had not been found guilty of driving without having his license in his possession in 1920 and again in 1923, and he answered that he had been twice convicted of that offense. Objections to all these questions were overruled. It has been held by this court, and apparently by a majority of courts of other states, that to impeach the veracity of any witness he may be asked whether he has been convicted of crime.

Smith v. State, 64 Md. 25 ; McLaughlin v. Mencke, 80 Md. 83 ; Deck v. Balto. & O. R. Co., 100 Md. 168 ; Mattingly v. Montgomery, 106 Md. 461 ; Balto. & O. R. Co. v. Strube, 111 Md. 119 ; United Railways v. Phillips, 129 Md. 328 ; Annarina v. Boland, 136 Md. 365 ; Lavine v. Ahramson, 142 Md. 222 . And see generally a review of decisions in notes, 6 A. L. R. 1608, and 25 A. L. R. 339. It has also been held in this state that a conviction for violation of the criminal law in the very transaction made the basis of a present suit for damages may be introduced to substantiate the evidence of the plaintiff as to the defendant’s actions. Mattingly v. Montgomery, and Balto. & O. R. Co. ⁶⁸ v. Strube, supra.

But we are not concerned with, a conviction arising out of the same accident here; no question as to that was asked. Confining ourselves to efforts to impeach the veracity of witnesses, it has been decided by this court further that mere charges or arrests, not followed by convictions, may not be shown. Bonaparte v. Thayer, 95 Md. 548, 559 ; Duffy v. State, 151 Md. 456, 468 . And in Simond v. State, 127 Md. 29, 38 , it was recognized that previous convictions might be too remote to affect a witness’ present credibility. “It would certainly be carrying the rule to its limit,” said the court, “to ask a witness if he had been arrested ten years before for being drunk and sent to jail.” But beyond this the court has not marked out any limits to such an inquiry.

The appellant contends that only convictions for crimes involving moral turpitude reflect upon a witness’ worthiness of belief, and evidence of lesser crimes is irrelevant, and that view has been adopted by many courts. But it has not been adopted in Maryland, or apparently in the majority of other states. In Smith v. State, supra, the question admitted was whether the witness had ever been in jail, and the admission has been upheld in several of the other cases last cited, and in McLaughlin v. Mencke, supra, evidence was admitted of confinement to jail upon a conviction for drunkenness. But assuming that the previous crimes which may be inquired about are not limited to those involving moral turpitude, the appellant urges that some distinction must still be observed between lesser violations of the criminal law, because some of them are so plainly without bearing on the witness’ credibility and would commonly be brought into a case only for some ulterior and probably illegitimate purpose.

And it seems to us this argument can hardly be denied. To admit as possible evidence of a witness’ unworthiness of belief the fact that he has been convicted of driving over a stop signal, or making a left-hand turn where it is not permitted, would be unreasonable. Criminal law and criminal procedure are made use of for the enforcement of a large volume of mere regulations of convenience and order, wholly ⁶⁹ without relation to any moral qualities; and while it may have been less apparent in times past, it is now at least unescapable that some discrimination must be made when the courts come to receive evidence of violations to impeach the credibility of a witness. It is not required that the evidence be restricted to infamous crimes or those involving moral turpitude on the one hand, but, on the other, the purpose of the admission, to impeach credibility, must impose some limits; the convictions should be of infringements of the law that may have some tendency to impeach credibility, and not all infringements do.

No rigid classification seems possible. The principle generally adopted by courts which follow otherwise the practice followed in Maryland is that the trial court must exercise discretion when offers of convictions are made, looking to the purpose for which the evidence is offered, and that its decision will not be interfered with on appeal except when the evidence is so clearly irrelevant that its admission could not be said to be within the discretion lodged with the trial court. 2 Wigmore, Evidence (2d. Ed.), sec. 983. Third Great Western Co. v. Loomis, 32 N. Y. 127, 132 .

People v. McArron, 121 Mich. 1 . And this we take to be the principio we are required to follow in Maryland. Applying these principles to the questions admitted over objection here, we consider that none of them could bring out facts reflecting on a witness’ credibility and their admission was erroneous. Convictions for driving without a license are so clearly without any such bearing that it is doubtful whether they could have a misleading effect on the minds of a jury, and perhaps their admission might be treated as harmless; but convictions for exceeding the speed limit seem more likely to have been harmful because of a possible suggestion of excessive speed in the case at bar, a fact of which there was no direct evidence and one to prove which the prior convictions would not be admissible.

Balto. & O. R. Co. v. Black, 107 Md. 642, 655 . Our opinion is that the evidence was so far from having any bearing on the veracity of the witness that, treating it as offered for ⁷⁰ that purpose, its admission was error which requires a reversal of the judgment. . Counsel for the plaintiff contends, however, that these past convictions, and also arrests asked about, would be admissible for another purpose in this particular case. An offer was made to prove that the father of the present appellant, owner of the automobile and a co-defendant, knew of the convictions and arrests of his son alluded to, and it was argued that upon such proof liability might be placed upon the father for entrusting his automobile to an incompetent or dangerous driver.

The existence of such a ground of liability, if the facts were proved, was left unconsidered in Whitelock v. Dennis, 139 Md. 557, 564 , and Myers v. Shipley, 140 Md. 380, 384 ; and it is not necessary to consider it here. The declaration contained no allegation of any negligence in the father himself, but based liability in him solely upon the ground that the son was his agent or employee in driving the car; and the plaintiff offered no testimony in chief to establish liability in the father on any other ground. It was in cross-examination of the son, the present appellant, that an offer was made to establish liability in the father on the ground of negligence in entrusting his automobile to a driver known to be incompetent and dangerous, and then, on objection, the court offered the plaintiff leave to amend his declaration to cover that gTOund, but it was declined because the trial would have been stopped for the amendment and a continuance granted to the defendant. In this situatioxi the evidence was rightly rejected, in so far as its purpose was to establish negligence in the father as stated.

And this court coxxcludes that it should have been rejected, even considered as offered to impeach the witness’ veracity. Discxxssioxx • before the court and jury on one of the questions asked by the plaixxtiff about a supposed arrest of the defendant for violation of the traffic laws, without a conviction, brought a motion for the withdrawal of a juror and a continuance of the cause because of misconduct of the plaintiff’s counsel, and the overruling of that motion forms the subject of another important exception. After the appellant ⁷¹ had "been asked on cross-examination about violations of the traffic law already discussed, and immediately after an objection had been sustained to a question of arrest, but not of conviction, on November 17th, 1922, for failure to give a right of way to a pedestrian, counsel for the appellee asked whether on that date the defendant had not run into a colored woman and broken her leg and then, prior to the time for the case to come up in the traffic court, made a settlement with the woman to prevent the case from coming up. An objection to this was likewise sustained, and the court added that it was an improper question.

Then the record of the trial continues: “(Mr. Boyd) : I have got his report. (The Court): I can not help it, sir. It is an improper question. (Mr. Boyd) : I do not think so.

I am asking these questions in view of what I stated before, to show the recklessness of this man, and I am reading from the report made by this man to the automobile commissioner, and I am showing, if your Honor please, why the case was never tried. Now, that might not go, according to your Honor’s rulings, for the purpose of reflecting on the credibility of the witness, but it does go to the main question in this case, for which these questions are asked, the recklessness of this driver and the attempt to bring it home to the father. (The Court): For the purpose of getting the exception on the other question you have in mind. (Mr. Boyd) : Well, it is admissible for that purpose.” The defendant then made his motion that a juror be withdrawn and the case continued on the ground of misconduct of counsel, and it was overruled.

And the court cautioned the jury to pay no attention to the question asked, and draw no inference from them, when objections to them had been sustained. And this was followed by counsel: “(Mr. Boyd): The question was admissible for the purpose I asked it. (The Court): Well,