Flathers v. Wilson & Co.

• Decision Date: 01 June 1934
• Docket Number: 7627
• Citation: 255 N.W. 149,62 S.D. 548
• Parties: LEONARD FLATHERS, a minor, by Ross Flathers, his guardian ad litem, Respondent, v. WILSON & CO., et al., dba as Yellow Cab Company, Appellants.
• Court: South Dakota Supreme Court

62 S.D. 548

255 N.W. 149

LEONARD FLATHERS, a minor, by Ross Flathers, his guardian ad litem, Respondent,

v.

WILSON & CO., et al., dba as Yellow Cab Company, Appellants. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Ray E. Dougherty, Judge #7627—Reversed Bailey & Voorhees, M.T. Woods, Sioux Falls, SD Attorneys for Appellants. Peck & Wall, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Jun 1, 1934 RUDOLPH, Judge.

The plaintiff, by his guardian ad litem, brought this action to recover damages for injuries he sustained when struck by an automobile driven by the defendant Herman. Herman at the time of the accident was an employee of the defendant Wilson & Co., which was engaged in a general taxicab business, and was acting within the scope of his employment. At the trial the defendant Herman was called for cross-examination by the plaintiff, and, as a part of that examination, the record shows the following:

“Q. You pleaded guilty here in this county once and got a jail sentence, didn’t you Mr. Herman? (That is objected to as incompetent, irrelevant and immaterial. Overruled.)

“A. Yes, sir.

“Q. That was some years ago?

“A. Yes, sir.

“Q. What was that charge?

“A. That was speeding.

The appellant has assigned as error the re eption of such evidence as just quoted.

This court in the case of Richardson v. Gage, 694, Ann. Cas. 1914B, 534, stated:

“In this state the rule of veracity character, as expressed in the practice of impeachment by general bad reputation for truthfulness in the community, has been recognize and adopted, and convictions for crime of such kinds as may be relevant to veracity character maybe shown either by the record of conviction, or upon cross-examination. And in this respect the rule is the same in both civil and criminal actions. But the rule has not been extended beyond these limits.

The rule has not been extended in this state since the case of Richardson v. Gage, supra, and we are of the opinion that it should not now be extended. We believe the rule announced to be in accord with the general weight of authority. See 40 Cyc. 2607, and cases cited, The respondent contends that some different rule was established by this court in the case of Sate v. Caldwell, 651. In that case, appearing in the statement of facts in the opinion, there is the following:

“She was then asked whether she had ever before been convicted of crime. She stated that she had not. The state’s attorney then asked: ‘Are you sure of that?’ This, was objected to as misconduct, objection overruled, and exception allowed. She then admitted that on May 14, 1928, she had pleaded guilty in the municipal court of Sioux Falls to a charge of petit larceny, and on August 8, 1928, had pleaded guilty in the same court to the charge of aiding and assisting Annie Nelson to escape from an officer.”

However, while the above appears in the court’s statement of the case, it will be noticed that the court did not directly pass upon the question therein involved. An examination of the record in the Caldwell Case discloses that the defendant shortly after her arrest made certain admissions and confessions; upon her direct examination she had stated that these admissions and confessions were made because she was excited and frightened on account of her arrest. The evidence above set out was introduced in part at least to show that being arrested was not such a new experience as to cause her undue alarm, and cause her to make statements in her confession that were untrue. It is unnecessary for us to give an opinion to the effect that the evidence in the Caldwell Case was properly received for the purpose above indicated. It is sufficient to state that there was no intent in the Caldwell Case to establish any rule different from that announced in the case of ...