Marshall v. Martinson

• Decision Date: 14 February 1974
• Citation: 268 Or. 46,518 P.2d 1312
• Parties: Virgil MARSHALL, Appellant, v. Kenneth MARTINSON, and Harry S. Bailey, Respondents.
• Court: Oregon Supreme Court

Page 1312

518 P.2d 1312

268 Or. 46

Virgil MARSHALL, Appellant, v. Kenneth MARTINSON, and Harry S. Bailey, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 4, 1973.

Decided Feb. 14, 1974.

Millard M. Becker, Portland, argued the cause for appellant. On the briefs were Becker & Sipprell and William F. Schulte, Portland.

George M. Joseph, Portland, argued the cause for respondents. With him on the brief were James G. Breathouwer and Bemis, Breathouwer & Joseph, Portland.

TONGUE, Justice.

This is an action for damages for personal injuries sustained in an automobile accident which occurred on the interstate highway near Cascade Locks as defendants' automobile was overtaking and passing plaintiff's pickup truck. The case was tried before a jury, which returned a verdict in favor of defendants. Plaintiff appeals from the resulting judgment, contending that the trial court erred in excluding evidence offered by plaintiff and in refusing to give requested instructions to the jury. ¹

1. Impeachment of witness by proof of conviction of any crime.

Plaintiff's first assignment of error is that the trial court erred in sustaining defendants' objection to the introduction in evidence of a record of the conviction of one of the defendants on a state charge for the crime of driving under the influence of intoxicating liquor.

Defendants objected to that offer of proof on the ground that '(I)t is not the type of crime that the law condones as impeaching of the witness' * * * character, * * *.' In sustaining the objection the trial court stated that '* * * (I)t's an abhorrence to me to think we have to question everybody's credibility because of driving under the influence of intoxicants * * *'; that in this case (in which there was considerable evidence that defendants had been drinking prior to the accident) such evidence would have 'a tendency to influence the jury not on the merits * * *;' that as a trial judge he had the duty 'to see that everybody gets a fair trial,' and that '(O)n prejudice and prejudice alone I am not going to allow it.'

ORS 45.600 provides:

'A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his geneal reputation for truth is bad or that his moral character is such as to render him unworthy of belief; but he may not be impeached by evidence of particular wrongful acts, except that it may be shown by his examination or by the record of the judgment, that he has been convicted of A crime.' (Emphasis added)

In some states similar statutes have been construed by courts to the effect that the offense must be one involving 'moral turpitude.' In other states courts have adopted a rule that gives a trial judge discretion in holding whether a particular conviction substantially affects the credibility of a witness. These decisions are criticized in McCormick on Evidence (2d ed. 1972) 85--86, § 43, in favor of the advantages of a 'clear and certain' rule for purposes of judicial administration. ²

In Oregon, however, there is no such uncertainty in the prior decisions of this court. In State v. Rush, 248 Or. 568, at 570--571, 436 P.2d 266 at 268 (1968), we said:

'From the time of the decision in State v. Bacon, supra, (13 Or. 143, 9 P. 393 (1886)) this court has consistently held that ORS 45.600 permits, as it clearly states, that 'A witness may be impeached by the party against whom he was called * * * by his examination or by the record of the judgment, that he has been convicted of a crime.' Whatever the logic may be of arguing that no evidence should be received concerning conviction of a crime which would not by its nature be thought of as a basis for questioning credibility, the rule is nonetheless clearly established.' (Citing numerous cases, including criminal cases in which defendants had been impeached by proof of the prior convictions of crimes.)

We still adhere to that rule. By the adoption of what is now ORS 45.600 the Oregon legislature has apparently adopted the view, as a matter of public policy, that a jury may properly find that a person who has been convicted of any crime may be less reliable as a witness than a person who has never been convicted of any crime.

While we may or may not agree with this view, we believe that because ORS 45.600 is clear and unambiguous to that effect, any change to be made in this rule must be made by the legislature, rather than by this court.

It follows that the trial court had no discretion to reject plaintiff's offer of proof of the prior conviction upon the ground that undue prejudice would result. It also follows that this case must be remanded for a new trial. Because, however, the questions raised by plaintiff's additional assignments of error may again be raised upon the retrial of this case, we shall consider them.

2. Admissibility of official weather records.

Plaintiff next assigns as error the exclusion from evidence of certified copies of official weather records showing wind velocity at various times during the day of the accident, as recorded at whether stations located at Portland, The Dalles and Cascade Locks. Under ORS 43.350, 43.360 and 43.370 certified copies of such records were admissible in evidence, if relevant to any issue in this case.

One of defendants' contentions was that the action of wind against the side of the 'camper' or 'canopy' body on plaintiff's empty pickup truck could have caused it to 'pop into the Buick.' Plaintiff and two witnesses denied that it was windy at that time. Defendants and another witness testified to the contrary.

The existence or nonexistence of strong winds at the time and place of the accident being an issue in the case, it follows that official weather records with recordings of wind velocities would have been relevant provided that such recordings were made at times and places sufficiently near to that of the accident to have probative value and not be too 'remote' in time or place.

Questions of remoteness in time and place are ordinarily left to the discretion of the trial judge. Clement v. Cummings, 212 Or. 161, 167, 317 P.2d 579 (1957).

The weather records offered in this case were of recordings taken at Portland, The Dalles and Cascade Locks. The weather stations at both Portland and The Dalles are many miles distant from the point of the accident. The weather station at Cascade Locks was four miles from the point of the accident, but the last recording at that station on the day of the accident was made at 5:05 p.m., over four hours prior to the time of the accident, which occurred at 10:45 p.m.

Under these facts, we agree with the holding of the trial judge to the effect that a lapse of four hours between recording of the data and the time of the accident was too long a period to qualify this evidence as relevant.

3. Exclusion of opinion of expert witness that the accident could not have happened in manner contended by defendants.

Plaintiff's third assignment of error is that the trial court erred in sustaining objections to a hypothetical question by plaintiff's counsel to his expert witness, an engineer. By that question the witness was asked to assume, among other things, that the plaintiff's pickup truck was traveling in the right-hand lane of the four-lane highway at 35 miles per hour and 'veered into the path' of defendants' car as the car was starting to pass plaintiff at a speed of 70 to 75 miles per hour by 'moving straight ahead' in the left-hand lane 'within 12 to 18 inches of the * * * center guard rail,' all as contended by defendants, and also to assume that the right front corner of defendants' car made contact with 'the right front corner into the left wheel well' of plaintiff's pickup truck and that after the impact defendants' car 'came to rest backward' on the right-hand guard rail, while plaintiff's vehicle 'went over (that) * * * guard rail and broke a sign.' Based upon these assumed facts the witness was asked 'whether the faster vehicle after the collision would make contact with the center guard rail on the left.'

After objections to this question were sustained, plaintiff made an offer of proof of the testimony of this witness to the effect that the accident could not have happened as contended by defendants because if defendants' car had been hit by the 'veering' of plaintiff's pickup truck into defendants' lane of traffic the car would have been caused to go out of control and to 'rotate' and that there was not 'enough room between the center line and the (center) guard rail for the Buick' to proceed without hitting the center guard rail.

Defendants' first objection to the hypothetical question is that it assumed facts not in evidence, such as the weight of the two vehicles and 'the inclusion of facts about the guard rail not testified to.' Because, however, this case must be retried for other reasons, we may assume that any such discrepancies can be remedied at that time.

Defendants also object upon the ground that this inquiry was 'speculative' and this was the primary basis upon which defendants' objection was sustained by the trial court, which appeared to be under the impression that 'scientific exactness' required. Because this same objection can be anticipated on retrial, it is necessary to consider it further.

We may agree with plaintiff's contention that 'scientific exactness' may not be a requirement for the admissibility of expert testimony in such a case. It does not follow, however, that the trial court erred in rejecting that offered expert testimony in this case upon objection that it was 'speculative.'

At the time of trial the discussion between court and counsel touched on the problem of automobile accident 'reconstruction.' However, no mention is made by plaintiff in its briefs in this court of the many problems relating to expert testimony on that subject and no cases are cited by plaintiff in which this or other courts have held...