Anderson v. Saunders
| Decision Date | 06 March 1962 |
| Citation | 16 Wis.2d 55,113 N.W.2d 831 |
| Parties | Emmett ANDERSON, Respondent, v. Viola SAUNDERS et al., Appellants. |
| Court | Wisconsin Supreme Court |
Everson, Whitney, O'Melia & Everson, Green Bay, for appellants.
Boltz & Steinbrinck, Green Bay, for respondent.
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; Wigmore on Evidence, sec. 980a, p. 545. 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, 1 of convictions, 2 or of filing a complaint by a police officer, 3 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.
The respondent relies of 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...
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