Ando v. Woodberry
| Decision Date | 04 November 1959 |
| Citation | 9 A.D.2d 125,192 N.Y.S.2d 414 |
| Parties | Robert W. ANDO, Plaintiff-Appellant, v. Essie May WOODBERRY and Edward Nichols, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Samuel J. Moskowitz, New York City, of counsel (Graham M. Scheinman, Lynbrook, with him on the bried, Samuel J. Moskowitz, New York City, atty.), for plaintiff-appellant.
Peter E. De Blasio, Brooklyn, of counsel (Reilly & Reilly, New York City, attys.), for defendants-respondents.
Before BREITEL, J. P., and FRANK, VALENTE, McNALLY and STEVENS, JJ.
BREITEL, Justice Presiding.
Plaintiff, a motorcycle policeman, appeals from a verdice and judgment in favor of defendants after a jury trial in an action in negligence to recover for personal injuries. Plaintiff also appeals from the order denying his motion for a new trial.
The accident involved an automobile driven by one defendant and owned by the order. The only issue on appeal is whether there was error in the exclusion of pleas of guilty by the driver defendant to two traffic infractions arising out of the accident. It is concluded that there was no error.
The accident occurred when the automobile, on December 28, 1955, was making a left turn at the intersection of Fifth Avenue and 110th Street in Manhattan. According to plaintiff's version, the driver, without prior signal and by moving to the right, misled plaintiff. As a result plaintiff, on his motorcycle, proceeded alongside the automobile, and as it swung left suddenly, without signal, the automobile struck the motorcycle, causing plaintiff to fall to the ground and sustain the injuries he received. The driver denied that he had moved to the right and said that he had given the appropriate mechanical signal before turning left. Defendant driver received a summons and when, in due course, the matter came up in the Traffic Division of Magistrates' Court he pleaded guilty to charges of two traffic infractions. The infractions were failure to signal and making an improper turn, the gravamen of plaintiff's claim.
Upon the trial plaintiff sought to prove the pleas of guilty on the ground that they were admissions against interest. The trial court excluded the proffered evidence. 1 Despite a sprinkling of dicta in the cases, actually there have been few, if any, holdings, especially in this State, which apply to the question.
In 1934 the Legislature concluded that the lesser traffic offenses should not have the status of either a felony or misdemeanor, but of something less than either. It was recognized that such lesser traffic offenses were of essentially trivial character, involved the most summary and informal of proceedings, and were usually processed before very busy courts. The Legislature enacted subdivision 29 (then subd. 28) to section 2 of the Vehicle and Traffic Law (L.1934, c. 485). It reads, in pertinent part, as follows:
* * *'
Moreover, the Legislature made the unusual provision that the degrading of the offense should be retroactive to those past misdemeanor convictions which were now to be classified as infractions. It also amended section 355 of the Civil Practice Act to the effect that a witness shall not 'be required to disclose a conviction for a traffic infraction, as defined by the vehicle and traffic law, nor shall conviction therefor affect the credibility of such witness in any action or proceeding.'
There is no dispute that these statutory provisions relating to 'convictions' do not govern the admissibility of 'pleas' of guilty to infractions in civil actions as admissions against interest. But they do reflect dramatically a legislative attention to the effect, and therefore to the weight, to be attached to proceedings in traffic infraction prosecutions. The law is quite clear that criminal convictions may be admissible when logically relevant in civil cases under the rule in Schindler v. Royal Insurance Co., 258 N.Y. 310, 179 N.E. 711, 80 A.L.R. 1142. There is no concern, therefore, with the problem of the conviction, after plea or after trial, for a misdemeanor, even a misdemeanor as provided in the Vehicle and Traffic Law. 2 In all these instances the conviction and the plea of guilty are, if otherwise relevant and competent, sufficiently probative to be admitted in evidence. This is so because the conviction is for crime and not merely for a traffic infraction.
The only detailed discussion of the problem in the use of a traffic conviction, as evidence, in a civil action arising from the traffic infraction, occurred in this Court, in Walther v. News Syndicate Co., 276 App.Div. 169, 93 N.Y.S.2d 537. The discussion was an incisive one and the case has properly become an eminent precedent.
In the Walther case, Mr. Justice Callahan subsumed the problem under the rule in Schindler v. Royal Insurance Co., 258 N.Y. 310, 179 N.E. 711, 80 A.L.R. 1142. That rule, in turn, had its origin in Maybee v. Avery, 18 Johns. 352, and even beyond. Under the rule a conviction of crime is admissible in a civil case against one of the parties where the criminal conviction must have rested upon the same facts involved in the civil case. In justifying the Schindler rule the Court of Appeals there said:
'While a judgment of acquittal is only a determination that guilt has not been established beyond a reasonable doubt, although a preponderance of evidence might point thereto, a valid judgment of conviction in a court of competent jurisdiction with all the safeguards thrown about a person accused of crime which enable him to make his defense, to examine witnesses and to testify in his own behalf, might be held free from collateral attack without exposing the law to the jibes and jests of the critics of our present system of administering justice.' 258 N.Y. 310, at page 313, 179 N.E. 711, at page 712.
In discussing the rule, this court, in the Walther case, marked the very different situation which obtains with respect to traffic infractions. It called attention to the legislative policy expressed in the 1934 amendments. It was then held that a conviction for a traffic infraction after trial was not admissible because of its unreliability as a determination of the facts necessary to justify it. In other words, this court declined to apply a classification based merely upon a verbalization which associated a conviction for traffic infraction with a conviction for crime.
In the same case, however, Mr. Justice Callahan observed that the holding was a narrow one, and that it might not apply where the conviction was against a plaintiff, as distinguished from the defendant party in the civil action, and also that it did not extend to the plea of guilty to the traffic infraction. The latter, it was observed, was admissible as a species of admission against interest--the view urged by plaintiff in this case. To support the dictum, which it was, there were cited Stanton v. Major, 274 App.Div. 864, 82 N.Y.S.2d 134, supra, and Same v. Davison, 253 App.Div. 123, 1 N.Y.S.2d 374.
As already noted, the Stanton case involved a misdemeanor and not a traffic infraction (footnote, supra, at page 417 of 192 N.Y.S.2d). Same v. Davison, however, arising in the Fourth Department, did involve a traffic infraction; but the court, in holding the plea of guilty admissible, cited as its only authority the Schindler case, supra. There was no discussion such as involved Mr. Justice Callahan so deeply in the Walther case with regard to the effect of a traffic infraction or the legislative policy which had already been expressed concerning its status and value.
Indeed, the significance of the Walther case is not so much that it was there observed that a plea of guilty to traffic infractions had been held admissible. The greater significance of the case is that every one of the grounds supplied why a traffic conviction after trial should not be admissible applies equally to the plea of guilty in a traffic infraction case. Its still greater significance is that it revealed a keen recognition that merely verbalizing a traffic infraction conviction as akin to a criminal conviction would not satisfy the test so pungently expressed by the Court of Appeals in the Schindler case, supra.
Nevertheless, the dictum in the Walther case was not without some effect. It was repeated, as a further dictum, in People v. Formato, 286 App.Div. 357, 363-364, 143 N.Y.S.2d 205, 211-212, 64 A.L.R.2d 812 affirmed 309 N.Y. 979, 132 N.E.2d 894. The Formato case, itself, involved pleas to nonmisdemeanor gambling offenses, a far cry from pleas of guilty to traffic infractions, and for which there was close precedent (cf. Matter of Rechtschaffen's Estate, 278 N.Y. 336, 16 N.E.2d 357). Again, in Michitsch v. Stimfel, 7 Misc.2d 960, 164 N.Y.S.2d 246, Special Term, in passing upon the relevancy of an allegation in a pleading with respect to a plea of guilty to a traffic infraction, referred to the dictum in the Walther case, not without some reservations, however. Thus, the Court quoted from the comment by this Court in Sims v. Union News Co., 284 App.Div. 335, 339, 131 N.Y.S.2d 837, 842 per Bergan, J., that:
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Cannon v. Weissberg
...a misdemeanor, but to charges of traffic infractions. Such a conviction has been held inadmissible in a civil action. Ando v. Woodberry, 9 A.D.2d 125, 192 N.Y.S.2d 414; Richardson on Evidence, 8th Ed., at pp. Even if the conviction were admissible as prima facie evidence of the facts involv......