Reynolds v. Donoho

• Citation: 39 Wn.2d 451,236 P.2d 552
• Decision Date: 15 October 1951
• Docket Number: No. 31603,31603
• Parties: REYNOLDS et al. v. DONOHO.
• Court: United States State Supreme Court of Washington

Page 451

39 Wn.2d 451

236 P.2d 552

REYNOLDS et al. v. DONOHO.

No. 31603.

Supreme Court of Washington, en Banc.

Oct. 15, 1951.

Gavin & Robinson, Yakima, for appellant.

Tonkoff & Holst, Yakima, for respondents.

FINLEY, Justice.

This appeal concerns a lawsuit by Edythe Reynolds (hereinafter referred to as respondent) and her ten-year-old daughter, Dacia Reynolds, against Anthony W. Donoho (hereinafter referred to as appeallant) to recover damages for injuries allegedly sustained by the former in a collision involving automobiles driven by respondent and appeallant. The action was tried before a jury. The result was a verdict of $10,000 for the injuries allegedly suffered by respondent; and $150 for the injuries allegedly suffered by the daughter, Dacia Reynolds.

On the morning of March 17, 1949, respondent was driving here automobile on a gravel highway toward Bickleton, Washington, Dacia Reynolds, the daughter, was sitting on her right side of the back seat of respondent's automobile. The automobiles driven by respondent and appellant collided approximately seven miles south of Mabton, Washington. The collision occurred as respondent rounded a hairpin curve, which simultancously curved sharply to her right and ascended a steep hill. Because of the winding nature of the road, both automobiles apparently were proceeding at about twenty miles an hour, or less. Appellant's automobile was traveling around the hairpin curve in a direction opposite to respondent's. Neither driver had a clear view of the roadway throughout the entire length of the curve because of a high embankment on the inner side of the curve. The respondent stated that she first saw the appellant when he was about twenty to thirty feet away. Appellant stated he saw respondent when she was about forty feet away. The evidence varies as to the events which transpired between the time the drivers first sighted one another and the moment of impact.

Respondent testified that her automobile was as far to her right hand side of the roadway as possible without scraping the embankment on the inner side of the curve. Appellant claimed that he was on his proper side of the roadway as far as possible; but it appeared that the county, in the process of repairing the road, had scraped gravel from the middle of the road to the side of the roadway, to appellant's right. Appellant was driving somewhat to his left to avoid the ridge of dirt and gravel.

The left front portion of each automobile collided. The appellant testified that he hardly felt the impact. The respondent and Dacia Reynolds testified that the impact was so violent that Dacia was hurled from the back seat, over the front seat, and against the right side of the windshield, with sufficient force to break the glass in the windshield.

Attention will now be given to appellant's first assignment of error and the facts pertinent thereto. The state patrolman who investigated the accident was called as a witness by the respondent. He testified that he arrived at the scene a short time following the accident; that he observed respondent's automobile was right next to the embankment on her proper side of the road; that appellant was at the scene of the accident, and that his automobile was on the wrong side of the road; and that from the position of the automobiles there was no room for respondent's automobile to pass appellant's without being involved in a collision. The following colloquy then occurred between respondent's counsel and the patrolman:

'Q. Incidentally, at that time did you give Mr. Donoho a ticket? A. Yes, sir. 'Q. And what was the disposition of the case?'

Appellant's objection to this question was overruled, whereupon the patrolman continued:

'A. There was a forfeiture.

'Q. What is that? A. Forfeiture.

'Q. A forfeiture of the---- A. Bond or bail.'

Appellant's objection was renewed on the ground that such testimony was immaterial, and that its only purpose was to prejudice the jury.

It is important in connection with our subsequent ruling on this matter to point out here that prior to the above colloquy, the patrolman had testified, and without objection, that appellant stated to him that, '* * * he was on the wrong side of the road too far.'

Appellant assigns as error the admission of the evidence relative to the 'ticket' and the 'forfeiture of bail,' despite appellant's objection that it was improper, immaterial and prejudicial. Obviously, the problem is whether the evidence relative to the criminal violation, the charge or 'ticket,' the bail, and the forfeiture, was admissible in the civil action, considering that the civil and criminal actions were aspects of the same situation or transaction, and based upon identical operative facts. In other words, the question is whether appellant's conduct concerning the 'bail and forfeiture' amounted to an admission which could be used against him in the civil action.

The traffic ticket given to appellant is somewhat analogous to an arrest. In Segerstrom v. Lawrence, 64 Wash. 245, 248, 116 P. 876, we held that in a subsequent civil action, the fact that a defendant has been arrested may properly be shown as part of the general transaction. We are not prepared at this time to overrule that decision.

The briefs on this appeal, and much independent research on our part, lead us to believe that as to civil actions the question of the admissibility of evidence pertaining to the forfeiture of bail seems to be without precedent.

It has been held that the fact that a defendant has been convicted of the criminal charge, following a plea of not guilty, cannot be admitted in a subsequent civil action. Caverno v. Jones, 61 N.H. 623; Walther v. News Syndicate Co., Inc., 276 App.Div. 169, 93 N.Y.S.2d 537. However, where there has been a plea of guilty in the criminal action evidence of such is admissible in a subsequent civil action. Atkins v. Churchill, 30 Wash.2d 859, 873-874, 194 P.2d 364. The reason for the latter holding is stated in Konshuk v. Hayes, 150 Wash. 565, 567, 273 P. 957, 958, as follows: '* * * A plea of guilty to a charge of crime is in the nature of an admission. It is an admission of wrong on the part of a defendant so pleading. The jury are therefore entitled to consider it as it considers any other admission; they must view it in connection with the surrounding circumstances, and give it such weight as in their judgment the circumstances warrant. In this instance, the plea was evidence on the general issue, and it would have been error on the part of the court to restrict it as applicable solely to the credibility of the witness.' The plea of 'nono contendere' partakes of some of the features of both the plea of guilty and the plea of not guilty in a criminal action. It has been held that the record of a criminal action in which the plea of 'nolo contendere' was entered is not admissible in a subsequent civil action. Honaker v. Howe, 19 Grat. 50, 60 Va. 50. The reasoning back of such a holding is that a plea of 'nolo contendere' is not an unlimited admission of the facts charged in the criminal indictment, leading to a conclusion that it is not be used as an admission in any action other than the one in which it is entered. State v. La Rose, 71 N.H. 435, 52 A. 943.

Respondent argues that the evidence pertaining to appellant's 'forfeiture of bail' is admissible in the instant case on the theory that such evidence would be admissible in the criminal action, citing Jones v. State, 26 Ga.App. 635, 107 S.E. 166; State v. Cherrington, 34 S.D. 562, 149 N.W. 421; Commonwealth v. Myers, 131 Pa.Super. 258, 200 A. 143. The cited cases do hold that such evidence is admissible in the criminal action; but the reason for its admissibility is on the theory that flight is an admission of guilt in a criminal case. See State v. Wilson, 26 Wash.2d 468, 482-483, 174 P.2d 553. Had the appellant fled from the scene of the automobile accident, there are cases in other jurisdictions holding that evidence of flight may be introduced in a civil suit under the guise of an implied admission of fault or liability; Shaddy v. Daley, 58 Idaho 536, 76 P.2d 279; Greenwood v. Bailey, 28 Ala.App. 362, 184 So. 285. In Tomasko v. Raucci, 113 Conn. 274, 155 A. 64, 65, the plaintiff presented evidence, through a police officer, that, although the defendant had not fled from the scene of the accident, he could not be found in his home until the third day following the accident. The Connecticut court said: '* * * The testimony of the police officer was not relevant to any issue before the court, could only have had the effect of creating an atmosphere prejudicial to the defendant, and should have been excluded.'

Like the plea of nolo contendere (Honaker v. Howe, supra) or the absence of the accused from his home during the period immediately following the accident (Tomasko v. Raucci, supra), the forfeiture of bail by the appellant was an incident unique in itself. Some analogies may be drawn favoring admissibility. However, the bail forfeiture here involved falls in the category of one of those tubs that must stand on its own bottom. This is particularly true in an automobile accident criminal action. It is common knowledge that, upon the receipt of a traffic ticket, the average motorist pays and then forfeits his bail; the action is thus concluded. It cannot be said that such an act is a general admission of responsibility. Often, it is but a convenient method of concluding the criminal action, convenient both to the person charged and to the administrators of traffic law enforcement.

It is our opinion that the evidence relating to the appellant's 'forfeiture of bail' was not admissible. But in this action, we are not prepared to hold that the admission of this evidence was prejudicial. As indicated above, the police officer tesfified that appellant's automobile was on the wrong side of the road; that from the position of the automobile there was...