Travelers Ins. Co. v. Dunn

• Decision Date: 23 September 1964
• Docket Number: No. 5661,5661
• Parties: The TRAVELERS INSURANCE COMPANY, Appellant, v. Wilson DUNN, Appellee.
• Court: Texas Court of Appeals

Page 197

383 S.W.2d 197

The TRAVELERS INSURANCE COMPANY, Appellant, v. Wilson DUNN, Appellee.

No. 5661.

Court of Civil Appeals of Texas, El Paso.

Sept. 23, 1964.

Rehearing Denied Oct. 21, 1964.

Max N. Osborn, Thornton Hardie, Jr., Turpin, Kerr, Smith Dyer, Midland, for appellant.

Warren Burnett, Bill Alexander, Odessa, for appellee.

FRASER, Chief Justice.

This is a Workmen's Compensation case wherein appellee obtained a judgment for maximum benefits under the law as the result of findings by the jury that he had sustained total and permanent incapacity from accidental personal injuries.

Appellant presents two points for our consideration, the first being that the trial court erred in excluding evidence that the plaintiff-appellee's witness, designated by appellant as a 'before and after' witness, had been convicted of a felony involving moral turpitude. The second point alleges error on the part of the trial court because it excluded evidence that this same witness was biased and prejudiced because he had a compensation suit of his own pending at the time he testified.

With regard to the first point appellee maintains that the conviction, sought to be introduced in an effort to impeach the credibility of witness Thomas B. Burk, was too remote to entitle it to be admitted in evidence, which is what the trial court held. We must agree with the position of appellee. The witness Burk had been convicted in 1954 for committing what he termed 'burglarizing'. He apparently served a year and seven or eight days. This matter is set forth in a Bill of Exception, which shows that he admitted the conviction and the punishment, and also that he had been convicted once before some nine years previously, which appellant computes to have been when he was about 18 years of age. This first conviction was also for some sort of breaking in, for which he received a suspended sentence in the State of Oklahoma. There is no dispute but that the conviction of an individual of a crime involving moral turpitude can be admitted for the purpose of impeachment or to attack the credibility of a witness, but such is not admissible if it is too remote. The cases we have examined all indicate that this is a matter resting largely on the discretion of the trial court, which must take into consideration all the facts and circumstances present at the time the testimony is proffered. His decision to admit or exclude the testimony because of remoteness, being one of judicial discretion, will not be disturbed unless it is evident that the trial judge abused his discretion in the ruling made. Some courts even go farther and say that in a case where there is any doubt of the propriety in admitting the evidence of the conviction, the trial court should exclude it. Since witness Burk's release, there is no evidence except that he himself, in the Bill of Exception, testified that he had been picked up a few times for drinking too much and fighting. According to appellant's calculation, he was 27 years old at the time of the second offense.

We think this question is satisfactorily discussed, reviewed and disposed of in the following cases: Adams v. State Board of Insurance, Tex.Civ.App., 319 S.W.2d 750; United Benefit Fire Insurance Co. v. Stock, Tex.Civ.App., 344 S.W.2d 941. The above cases review the preceding decisions touching on this matter, and in the Adams case the court there says as follows:

'The admissibility of a conviction with regard to its remoteness is a matter which rests within the sound discretion of the trial court. 45 Tex.Jur. 234, Sec. 317; Carr v. De Witt, Tex.Civ.App., 171 S.W.2d 388, ref. want merit; York v. Glenn, Tex.Civ.App., 242 S.W.2d 653, no writ history; Bunch v. Texas Employers' Ins. Ass'n., Tex.Civ.App., 209 S.W.2d 657, no writ history; Dillard v. State, Tex.Cr.App., 218 S.W.2d 476; Shipp v. State, 104 Tex.Cr.R. 185, 283 S.W. 520.'

The United Benefit Fire Insurance Company v. Stock case, supra, cites the Adams case, among others, and says as follows: 'Whether or not under the facts of this case such conviction was too remote to be admissible was a question for the Trial Court in the exercise of its sound discretion.' We should like to point out that this decision specifically states, as do others, that the problem depends largely on the facts of the case in question, as noted in the quotation above. The Texas Court of Criminal Appeals, in Lott v. State, 123 Tex.Cr.R. 591, 60 S.W.2d 223 (1933) states that the trial court should carefully ascertain and consider the available facts and circumstances and if, after having done so, there should be left any doubt on the propriety of admitting the evidence, it should be excluded. We have reviewed the record here and do not find that the trial court abused the broad discretion vested in him in a matter of this nature. It must be remembered that this matter concerned a witness--not a party--nor was his mind being explored as to his qualification for jury duty. He was one of several witnesses, including a doctor, and while his testimony was perhaps the strongest of any lay witness, his was not the only lay testimony, the record showing that one Cox, the appellee's wife, and one James E. Morris also testified in plaintiff's behalf and in support of plaintiff's claim.

There is considerable discussion in the briefs as to when the time relating to the remoteness of the crime should be computed, some courts holding that the remoteness should begin at the time of his incarceration or conviction, others holding that it should begin to run only upon his release from confinement. We do not think that a definite rule can be laid down as to that point; and, in any event, the matter before us involves only the difference of a year and seven days whichever way the matter is computed. Also, by the same token, we feel that there cannot be any definite number of years set up as a time limit defining 'remoteness'. This matter is discussed by some of the decisions and, we feel, correctly disposed of in the two cases cited above which state that the trial judge, in exercising his discretion, should take all of the facts and evidence into consideration. We therefore do not believe, as appellant would urge, that any conviction less than ten years remote from the proffered testimony should be admitted, as this would set an inflexible cutting-off point, which we do not think could or should exist where the trial court is endowed with so much discretion and is, in fact, obligated to exercise it.

Turning now to appellant's cases, it will be noted that many of the cases cited are decisions of the Court of Criminal Appeals and involve an actual party or defendant, rather than a witness. For example, in his reply brief the appellant cites Couch v. State, 158...