Travelers Ins. Co. v. Landry

• Decision Date: 26 November 1969
• Docket Number: No. 7093,7093
• Citation: 448 S.W.2d 230
• Parties: The TRAVELERS INSURANCE COMPANY, Appellant, v. Robert LANDRY, Jr., Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 230

448 S.W.2d 230

The TRAVELERS INSURANCE COMPANY, Appellant, v. Robert LANDRY, Jr., Appellee.

No. 7093.

Court of Civil Appeals of Texas.

Beaumont.

Nov. 26, 1969.

Motion for Rehearing Overruled Dec. 18, 1969.

Strong, Pipkin, Nelson & Parker, Beaumont, for appellant.

Seale & Stover, Jasper, for appellee.

PARKER, Chief Justice.

This is a workmen's compensation suit. The plaintiff was Robert Landry, Jr., and the defendant The Travelers Insurance Company. Upon a jury verdict of total and permanent incapacity, judgment was entered in favor of plaintiff against the defendant. The parties will be designated as in the trial court.

Defendant contends, in his first point of error, the trial court erred in refusing to admit for impeachment purposes evidence regarding plaintiff's 1964 Federal felony conviction of theft of postal money orders and subsequent forgery.

On the date of trial, March 4, 1969, plaintiff was 27 years old. He was a graduate of Lincoln High School and had attended college for a short period.

On September 4, 1968, plaintiff filed suit against defendant alleging he sustained a severe back injury on May 28, 1968 while lifting a spandall onto a barge at a Texas Gulf Construction Company site. Plaintiff testified that he fell backwards. Although there were other workmen in the immediate area at the time, he offered none as a witness in support of the fact that an injury actually did occur. He was placed in a hospital for three and one half weeks under the care of two different physicians, one of whom he chose, and the defendant insurance company 'assumed' these expenses and paid plaintiff compensation for four weeks.

Popejoy, plaintiff's physician (who did not treat him at the time of the alleged injury) testified that in his opinion there was a 'compression type injury' to the disc in the 12th thoracic-first lumbar region of plaintiff's spine without nerve involvement, which resulted in plaintiff's total and permanent disability. On the other hand, defendant's medical expert, who had first examined and treated plaintiff immediately after the alleged accident and examined him shortly before trial, was much less impressed with the plaintiff's complaints. His testimony was that upon initial examination he found 'acute lumbar strain' with plaintiff's reactions 'dramatically over developed' and 'no evidence of any organic injury.' Upon his pre-trial examination he concluded that there was a complete recovery from the strain. His opinion was that plaintiff could have resumed work with a minimum of discomfort.

The sole question before us is based upon the refusal of the trial court to permit the introduction of evidence showing that the plaintiff had been convicted in the Federal Court for the theft of postal money orders and the forgery of the payee's endorsements thereon. Plaintiff pleaded guilty to the charges against him on February 4, 1964, and was sentenced to confinement in prison for three years and was assessed a find of $100.00. The prison sentence was suspended and plaintiff was placed upon actively supervised probation. He was required to, and did, pay the fine. Approximately a year later, upon recommendation of the probation officer, the active probation was terminated, but our record does not disclose what action, if any, was taken toward a reduction of the suspended prison sentence which then had approximately two years to run. Admittedly, the offense for which plaintiff was convicted was a crime involving moral turpitude, it being one of the classic examples thereof. Compton v. Jay, 389 S.W.2d 639, 640 (Tex.Sup., 1965).

In the present case, the conviction was for a felony involving moral turpitude and upon a plea of guilty. As stated in Compton v. Jay, supra (389 S.W.2d at 641), quoting from Parry, infra:

"The rule is that where the witness has been legally charged by indictment, complaint, or information and complaint, With an offense involving moral turpitude, and has been legally convicted of such offense in a court of competent jurisdiction, or where the witness has been so legally charged with such offense, and presently admits his guilt, then such matters are admissible in evidence touching his credibility as a witness." (Emphasis by the court.)

The Supreme Court calls this the Parry rule, referring to Texas & New Orleans Ry. Co. v. Parry, 12 S.W.2d 997 (Tex.Com.App., 1929, holding approved), where the importance of the element of moral turpitude was emphasized in the foregoing language. It is clear that in Compton v. Jay (389 S.W.2d at p. 640), the Supreme Court is following Dean Wigmore in his treatise on Evidence (3rd Ed.) Vol. III, § 926, which says:

'In those jurisdictions in which veracity-character alone is allowed to be used to impeach, it would logically follow that when particular instances of misconduct are allowed to be used as throwing light on credibility--that is to say, conviction of crime, when shown by extrinsic evidence, * * *--only such instances should be used as are Relevant to show a lack of truthfulness of disposition,--for example, forgery, cheating, and the like.' (Emphasis in text.)

In this case we are dealing with a classic example of a conviction and sentence throwing light on credibility relevant to show a lack of truthfulness of disposition--a conviction upon a plea of guilty of theft and forgery. The appellant promptly noted its exception and preserved the error for review by this court in this language:

'Viewing the record as a whole, plaintiff-appellee's credibility was a major issue at trial, and exclusion of the impeachment evidence was an abuse of trial court discretion.'

The reasoning in Texas Employers' Insurance Association v. Curry, 290 S.W.2d 767 (El Paso Civ.App., 1956, writ ref. n.r.e.) is applicable to the present case. Each involved a back injury. Justice Hamilton, while upon the Court of Civil Appeals, reversed the judgment because the trial court had refused to admit the Record of conviction even after the plaintiff had admitted the conviction. As stated therein on pages 769 and 770:

'* * * The very nature of the alleged accident and the nature of the injury and extent thereof being a back injury, the plaintiff's case rested primarily on the testimony of appellee himself.

'* * * consequently anything bearing on the credibility of the witness was vital to the appellant's defense of the case. * * *

Plaintiff concedes that Parry sets out the correct rule, that the offense of forgery involves moral turpitude, and that cross-examination of the plaintiff was a proper method of establishing the conviction. However, he contends that the trial court's discretion was not abused since the conviction was too remote in time to affect the plaintiff's credibility. To this he adds the doubtful argument that simply because plaintiff was released from actively supervised probation, this in itself showed that he was 'rehabilitated' in fact and in law.

The admissibility of a conviction with regard to its remoteness is a matter which rests largely within the sound discretion of the trial court. Adams v. State Board of Insurance, 319 S.W.2d 750, 752 (Houston Tex.Civ.App., 1958, error ref. n.r.e.); Travelers Insurance Co. v. Dunn, 383 S.W.2d 197, 198 (El Paso Tex.Civ.App., 1964, error ref. n.r.e.) and cases therein cited.

Generally speaking, the rule is that evidence of prior conviction of a crime involving moral turpitude is not admissible for impeachment purposes if the conviction antedates the trial by more than ten years. ¹ In Bunch v. Texas Employers' Insurance Association, 209 S.W.2d 657, 658 (Texarkana Tex.Civ.App., 1948, error ref. n.r.e.), it is said that 'Most of the cases that deal with this point are to the effect that a conviction for a felony twelve or fourteen years in the past is too remote, and those convictions that have been held to be admissible are from eight to ten years and down.'

Counsel have not cited to us a case wherein a conviction of a felony involving moral turpitude so recent in point of time to the trial as here--slightly more than five years--has been excluded. Our independent research has not located such authority. The shortest period in which such evidence...