Richey v. Sheaks

• Decision Date: 28 July 1967
• Docket Number: No. 2,No. 20393,20393,2
• Citation: 228 N.E.2d 429,141 Ind.App. 423
• Parties: Carol RICHEY, b/n/f Paul Richey, and Paul Richey, Appellants, v. Patricia Sue SHEAKS, Appellee
• Court: Indiana Appellate Court

Page 429

228 N.E.2d 429

141 Ind.App. 423

Carol RICHEY, b/n/f Paul Richey, and Paul Richey, Appellants, v. Patricia Sue SHEAKS, Appellee.

No. 20393.

Appellate Court of Indiana, Division No. 2.

July 28, 1967.

Arthur A. May, George N. Beamer, Jr., South Bend, for appellants, Crumpacker, May, Levy & Searer, South Bend, of counsel.

William E. Mills, R. Kent Rowe, South Bend, for appellee, Mills & Rowe, South Bend, of counsel.

SMITH, Judge.

This is an appeal from a judgment rendered by the St. Joseph Superior Court No. 1; and involves an action brought by the appellants against the appellee for damages for personal injuries and resulting expenses sustained by the appellant, Carol Richey, and her father, Paul Richey, and growing out of a 'one car automobile accident' which occurred while the appellant, Carol Richey, was riding as a guest passenger of the appellee, Patricia Sue Sheaks.

The issues were formed by the appellants' third amended complaint which charged in substance that the appellee, Patricia Sue Sheaks, operated the automobile in which the appellant, Carol Richey, was riding as a guest on a portion of U.S. Highway 6 just east of Walkerton, Indiana, with which she was familiar, in a willful and wanton manner so as to cause the automobile to leave the road and turn over.

Specifically the complaint charged that defendant, Patricia Sue Sheaks, was guilty of willful and wanton misconduct as follows:

'(a) That the defendant, Patricia Sue Sheaks, being familiar with the portion of the highway which she was traveling and familiar with the risks attendant upon navigating the curve which she was entering, did operate said motor vehicle into said curve at a high and unreasonable rate of speed, to wit: 80 miles per hour.

'(b) That the defendant, Patricia Sue Sheaks, with the knowledge of the hazards and risks attendant upon the operation of a motor vehicle on a United States Highway, failed to maintain a lookout on the traveled portion of said highway, thereby driving the motor vehicle off of the paved portion of said highway, and rolling it over.'

The plaintiff, Paul Richey, by separate paragraph of the same complaint, sought recovery of medical expenses paid by him on behalf of his daughter; and the injuries and expenses of both plaintiffs are claimed to be the direct and proximate result of the willful and wanton misconduct of the defendant, Patricia Sue Sheaks.

The defendant filed an answer to the complaint, in conformance with Rule 1--3 of the Supreme Court, which first denied that she had been guilty of willful or wanton misconduct, and further alleged that the plaintiff, Carol Richey, had voluntarily assumed and incurred all of the risks complained of by her in the complaint.

The plaintiffs filed a reply to the affirmative portions of defendant's answer which denied that the plaintiff, Carol Richey, had assumed or incurred any of the risks as asserted in defendant's answer.

The issues thus raised were whether the defendant, Patricia Sue Sheaks, was guilty of willful or wanton misconduct as alleged in plaintiffs' complaint, and whether the defendant Carol Richey assumed or incurred the risk of such misconduct.

At the close of the plaintiffs' evidence, the court sustained the defendant's motion for a directed verdict and instructed the jury to return a verdict in favor of the defendant, which verdict having been returned in open court, the court entered judgment for the defendant and against the plaintiff is conformance with the verdict which he had directed.

Thereafter the plaintiffs filed a timely motion for a new trial, which, in part, alleges the following grounds:

1. Error of law occurring at the trial in that the court erred in excluding from evidence plaintiffs' Exhibit Numbered 13, offered by the plaintiffs, Exhibit 13 being a certified transcript of the docket of Justice of the Peace Roy Molebash of Marshall County, Indiana.

2. Error of law occurring at the trial in that the court erred in excluding from the evidence plaintiffs' Exhibit No. 14, the same being page 63 of the original and official docket of Justice of the Peace Roy C. Molebash of Marshall County, Indiana, showing a plea of guilty by the defendant to a charge of reckless driving.

3. Error of law occurring at the trial in that the court erred in sustaining defendant's motion, made at the close of the plaintiffs' evidence, for a directed verdict for the defendant, and against the plaintiffs; and error of law occurring at the trial, in that the court erred in giving to the jury at the request of the defendant at the close of plaintiffs' evidence, a peremptory instruction designated 'defendant's tendered Instruction No. A,' which in substance directs the jury to return a verdict for the defendant.

4. The decision of the court is contrary to law.

The plaintiffs' motion for a new trial was overruled; and this ruling constitutes the basis of this appeal.

The appellants in their brief present two specifications of error as follows:

1. That the trial court erred in refusing to admit into eidence the plea of guilty entered by the appellee in the Justice of the Peace Court, located in Marshall County, Indiana;

2. That the trial court erred in directing a verdict for the appellee at the close of appellants' evidence.

Appellants in the first specification of error presented in their brief urge that the trial court erred in excluding from the jury plaintiff-appellee's plea of guilty to a criminal charge of reckless driving arising out of the same automobile accident. They maintain that the jury should have been permitted to consider Exhibit No. 13, the same being a certified transcript of the docket of the Justice of the Peace showing a plea of guilty by the defendant-appellee to a charge of reckless driving; and should have been permitted to consider Exhibit No. 14, the same being page 63 of the original and official docket of the Justice of the Peace showing therein a plea of guilty by the defendant-appellee to a charge of reckless driving, all arising out of the accident in question. The appellants claim that said exhibits have probative value as an admission against the interest of defendant-appellee.

To support this proposition the appellants have cited the case of Topper v. Dunn (1961), 132 Ind.App. 306, 317, 177 N.E.2d 382; and the case of Hamm et al. v. Romine et ux. (1884), 98 Ind. 77, 81. These cases appear to hold that Indiana has accepted as well settled the principle of law that a record showing a plea of guilty by defendant in a criminal case is admissible against him in a subsequent civil suit growing out of the same offense. It is the position of the appellants that such a guilty plea stands on the same footing as any other admission by a party to a law suit, whether oral or written, admissible as an exception to the hearsay rule and predicated upon the assumption that a defendant will not make statements of fact contrary to his interest unless he is satisfied that such statements are true. 4 Wigmore, Evidence, § 1053 (3rd. Ed. 1940). While on the other hand, the record of judgment of conviction in a criminal prosecution is not admissible in a civil suit for damages occasioned by the offense of which the party stands convicted to prove the civil guilt of the defendant. In that situation, the defendant in the criminal cause has stated he is not guilty and is found guilty only after trial. The record of the conviction is withdrawn from the jury's consideration because of a natural tendency on the part of the jury to treat the criminal determination as absolutely dispositive on the issue of civil liability.

The appellants maintain, however, that it is not with the record of the judgment of conviction but rather with the record of the plea of guilty with which they are concerned. Montgomery v. Crum (1927), 199 Ind. 660, 686, 161 N.E. 251.

And for this reason it is the contention of appellants that a plea of guilty is neither more nor less than a deliberate admission on the pleader's part that the charge is true. Thus, the plea is not before the jury as a judgment establishing the facts upon which it is based or as conclusive evidence of liability in the civil case; rather it is before the jury as an admission against interest, to be considered and weighed precisely as other evidence, its probative value depending upon the circumstances under which it was made. See, Franklin General Insurance Co. v. Hamilton (1956), 126 Ind.App. 537, 541, 133 N.E.2d 93. In the case at bar, the trial court refused to admit appellee's voluntary judicial admission of reckless driving. In so ruling, the appellants contend that the trial court failed to recognize the guilty-plea's rightful status as an admission against the interest of the appellee and that in so ruling the trial court was in error.

The appellants further contend that Indiana courts have never required, as a condition precedent to admissibility, that the criminal charge to which the plea of guilty has been entered must directly conform to the specifications of misconduct in a civil action. That the single prerequisite to admissibility is a showing that the criminal action and the civil action arose out of the same accident. Podell v. Boger, etc. et al. (1957), 128 Ind.App. 116, 121, 122, 145 N.E.2d 730, rehearing denied, 128 Ind.App. 124, 146 N.E.2d 428.

The appellee in reply to these contentions maintains that there is no question involved in the case at bar involving the right of a party to a law suit to introduce into the record facts evidencing a plea of guilty to a traffic violation--the same being admissible as an admission against interest in a civil action. The Appellate Court in the case of Dimmick v. Follis (1953), 123 Ind.App. 701, 111 N.E.2d 486, spoke as follows:

'* * * Such record is admitted not as a judgment establishing the facts upon which it is based but as the deliberate declaration or admission against the defendant's interest in connection...