Dimmick v. Follis, 18348
| Decision Date | 07 April 1953 |
| Docket Number | No. 18348,18348 |
| Citation | 111 N.E.2d 486,123 Ind.App. 701 |
| Parties | DIMMICK v. FOLLIS. |
| Court | Indiana Appellate Court |
Leigh L. Hunt and Parrish & Parrish, Fort Wayne, Ferd L. Litterer, Decatur, for appellant.
S. K. Frankenstein and Ora R. Kuhlman, Fort Wayne, for appellee.
The appellee Hazel D. Follis was injured as a result of a collision between an automobile in which she was sitting, while stopped in a line of traffic, and one owned and driven by the appellant Lester Dimmick shortly after 7 o'clock in the morning of July 17, 1950, on East Pontiac Street in the city of Fort Wayne, Indiana. Charging that the negligence of the appellant was the sole proximate cause of said collision and her resulting injuries, she sued and was awarded a verdict by a jury in the sum of $5,000 upon which judgment was entered in due course.
The appellant was arrested on the same day the collision occurred and was charged with reckless driving by affidavit, filed in the city court of Fort Wayne, in the following words and figures:
'Undersigned, being duly sworn, upon his oath says: That on or about the 17th day of July, 1950, in the County of Allen and in the State of Indiana, ..... did then and there unlawfully drive and operate a motor vehicle on Pontiac Street, being then and there a public highway of Fort Wayne, Allen County, Indiana, in a reckless and dangerous manner, to wit:
'Damage to the automobile of another with reckless disregard for the safety, property or rights of other persons, contrary to the form of the statute in such case made and provided.
'Al O'Keefe.
'Subscribed and sworn to before me this 26th day of July, 1950.
'Alton L. Bloom,
'Prosecuting Attorney.'
The appellant, under circumstances indicating a desire to escape the inconvenience of a trial, pleaded guilty to this charge and the judgment of the court was that he be fined $1, that he pay the costs of the proceedings and that he be committed to the Allen County jail until such fine and costs were paid or replevied.
In making her case in the present action, the court, over the appellant's objection, permitted the appellee to put in evidence the entire record of the proceedings in the city court of Fort Wayne including the above affidavit, the appellant's plea of guilty, the court's judgment and an itemized statement of costs.
As a general rule it is well settled that the records in criminal cases are not admissible in civil actions as evidence of the facts upon which a conviction was had, and this is especially true where the civil action is for damages occasioned by the offence of which the party stands convicted. Montgomery v. Crum, 1928, 199 Ind. 660, 685, 161 N.E. 251, 261. The rule seems sound when we consider the want of mutuality arising from the fact that the parties to the two records are not the same; that the course of the proceedings and rules of decision in the two courts are different and that a higher degree of proof is required in criminal than in civil cases. As was said in the Montgomery case: 'One reason for this rule is the dissimilarity between civil and criminal actions in objects, issues, results, procedure, parties, and in the application of the rules of evidence both as to weight and competency.'
However an exception to this rule has been held to arise where the defendant in the criminal case pleaded guilty and the record showing such plea and the judgment entered thereon is offered in evidence in a civil action against him growing out of the same offence. 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 with the very matter charged in the civil action. Like any other admission its probative value may be destroyed by the circumstances under which it was given or by satisfactory explanation. Rudolph v. Landwerlen, 1883, 92 Ind. 34, 37; Hamm v. Romine, et ux., 1884, 98 Ind. 77, 81.
The appellant contends that this rule is not applicable to the present situation because the subject matter or wrongful conduct involved in the two actions is not the same. He says that in the criminal case he was accused of a misdemeanor defined by statute as 'reckless driving' while in this suit he is charged with mere negligence in that (1) he failed to keep his car under control, and (2) he followed the appellee's car closer than the exercise of ordinary care permitted under the circumstances. That he could have been guilty of 'reckless driving' without necessarily having committed either of said acts of negligence and therefore his plea of guilty to the criminal charge has no probative value here. It seems to us that when one is charged generally with 'carelessly and negligently failing to keep his car under control' and thus causing a collision, he is charged with about any type of negligence because of which he failed to control his car in such a manner as to avoid the collision. In other words, such an allegation is, in effect, a general charge of negligence and it necessarily follows that one cannot drive recklessly without being negligent. See Jones v. Cary, 1941, 219 Ind. 268, 281, 37 N.E.2d 944. Although we have found no decision in Indiana directly in point the case of Olk v. Marquardt, 1931, 203 Wis. 479, 234 N.W. 723, is persuasive. In an action to recover for an injury arising out of an automobile accident, records of the municipal court showing that the defendant had pleaded guilty to a charge of reckless driving in connection with the accident in question were held admissible. The court said that such plea amounted at least to an acknowledgement of negligence on the defendant's part. The affidavit by which the appellant was charged with reckless driving and to which he pleaded guilty fails to disclose on its face that said reckless driving was connected with the collision involved in this litigation. There is ample...
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...(1950); Abraham Lincoln Memorial Hosp. Corp. v. Gordon, 111 Ill.App.2d 179, 183-184, 249 N.E.2d 311 (1969); Dimmick v. Follis, 123 Ind.App. 701, 704-705, 111 N.E.2d 486 (1953); Scogin v. Nugen, 204 Kan. 568, 572, 464 P.2d 166 (1970); Race v. Chappell, 304 Ky. 788, 792, 202 S.W.2d 626 (1947)......
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