Hannah v. Ike Topper Structural Steel Co.

• Decision Date: 02 April 1963
• Citation: 201 N.E.2d 63,120 Ohio App. 44,28 O.O.2d 223
• Parties: , 28 O.O.2d 223 HANNAH, Appellant, v. IKE TOPPER STRUCTURAL STEEL CO. et al., Appellees.
• Court: Ohio Court of Appeals

Page 44

120 Ohio App. 44

201 N.E.2d 63, 28 O.O.2d 223

HANNAH, Appellant, v. IKE TOPPER STRUCTURAL STEEL CO. et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

April 2, 1963.

Paul M. Herbert and Thomas M. Herbert, Columbus, for appellant.

Wiles, Doucher & Tressler and Paul W. Martin, Columbus, for appellees.

DUFFEY, Judge.

This is an appeal from a judgment of the Common Pleas Court of Franklin County, Ohio, for the defendants-appellees in an action based upon automobile negligence.

The first assignment of error states:

'The trial court erred in refusing to permit counsel for the plaintiff to cross-examine defendant Herbert Baker relative to his entering a plea of guilty of the crime of failing to yield the right-of-way at a stop sign.'

The collision occurred at the intersection of Bruck Street and Morrill Avenue in Columbus, Ohio. The defendant-appellee Baker, at several points in the record, testified that he stopped for a stop sign on Morrill Avenue, then proceeded into the intersection, and then stopped again when he saw the plaintiff's vehicle. The following appears in the record:

'Q. All right, I am going to ask you if on the 27th day of July, or thereabouts, 1959, you didn't say over at the traffic bureau at the Police Station that you did go through a stop sign without stopping? A. No, sir, I never said anything of the kind.

'Q. Did you sign any paper to that effect?

'Mr. Wiles: I object.

'The Court: He said he didn't say it.

'Q. Did you sign a paper to that effect? A. I don't recall.

'Q. Do yo deny that you did? A. I don't remember signing any paper.

'Q. Did you then pay a fine? A. Yes, sir.

'Mr. Wiles: I object now.

'The Court: All right.

'Mr. Wiles: Now, Your Honor, this brings up a legal question.

'The Court: Yes, stay away from that or you are going to get into trouble.

'Q. Didn't you confess and waive appearance in court and say you went through a stop sign?

'Mr. Wiles: I object.

'The Court: Yes, I will sustain that.'

Later, appellant called as a witness and proffered the testimony of the deputy clerk of the Municipal Court of Columbus, Ohio. On direct examination this witness identified a 'traffic ticket' consisting of an officer's affidavit charging appellee with failure to yield at a stop sign at Morrill and Bruck, the accused's copy, and an attached form signed by appellee Baker. This form states:

'I, the undersigned, hereby authorize and direct the Clerk of the Municipal Court of Columbus, Ohio or his Deputy, to enter a plea of guilty for me to the charge set forth in the affidavit, waive a trial, and voluntarily pay the penalty prescribed by the Court for this offense as designated on the back of the violation notification.

'Name/s/ Herbert Baker

Address 1001 Lilley Ave.'

On cross-examination the clerk testified as follows:

'Q. What did you do with the plea? A. You mean after the violator signs this?

'Q. Yes. A. We write it up on the register and it was paid and that entered his plea right there.'

Appellant contends that the examination of appellee Baker was erroneously limited and that the exclusion of the proffered evidence of the clerk and the exhibit (traffic ticket and signed form) was equally erroneous. Counsel relies on three grounds for admissibility:

(1) Impeachment by proof of a prior conviction of a crime.

(2) Impeachment by proof of a prior inconsistent statement.

(3) Independent evidence of a material fact by admission of a party.

The ground of prior conviction rests on the case of State v. Murdock (1961), 172 Ohio St. 221, 174 N.E.2d 543. The rule of that case is inapplicable on this record. As the quotation shows, nowhere in the examination of appellee Baker was he asked about a conviction. Nowhere in the testimony of the clerk or in the proffered exhibit is there anything suggesting that the alleged plea of guilty was accepted by the court and became a conviction. There is, of course, a vital difference between a tender of a plea of guilty and a conviction. The latter requires the act of a judicial officer. The clerk's testimony goes no further than to indicate that the alleged plea was 'registered' by the clerk. Without proof that it was accepted by the court, appellant cannot bring himself within the ground of impeachment by proof of a prior conviction.

The grounds of prior inconsistent statement and independent evidence are more difficult. There is considerable authority that a plea of guilty to an offense which involves conduct in issue may be admissible. If the statement here be considered as an admission of the fact of failure to yield for the stop sign, then the questions were proper, and the testimony of the clerk and the exhibit should have been accepted. Cf. State v. Morello (1959), 169 Ohio St. 213, 158 N.E.2d 525, and see cases cited in 21 Ohio Jurisprudence (2d), 358, Evidence, Section 352, and 98 C.J.S. Witnesses § 593, page 571.

However, in our opinion, the statement here has not obtained the dignity of a confession of fact. The circumstances are such that we do not believe it can be considered as so intended. It is established law in this district that an arrest and forfeiture of bond are not admissible in a negligence action. When the district was still part of the second district, this court held that the admission of proof of a bond forfeiture was prejudicial error. Stover v. Yoakum (1952), Ohio App., 109 N.E.2d 877, motion to certify overruled February 25, 1953. The record here indicates that the statement was made in the course of appellee's paying a fine under what has been called the 'cafeteria' system for minor traffic offenses. This system permits a person charged with certain offenses to have the option of paying an amount to the clerk at a pre-scheduled rate and without appearance in court (in most instances a check may be mailed). We think it must be recognized that the cost of defense compared to the amount charged and the inconvenience, as well as indirect economic losses of court appearances, are practical motivations behind the act of a person both in bond forfeiture and in the system involved here. It might also be noted that, unlike the present law, the law in 1959 did not provide for the plea of 'no contest.' The system involved here is...