Tucker v. Lower, 45015

• Court: Kansas Supreme Court
• Writing for the Court: FROMME; FONTRON
• Citation: Tucker v. Lower, 200 Kan. 1, 434 P.2d 320 (Kan. 1967)
• Decision Date: 27 November 1967
• Docket Number: No. 45015,45015
• Parties: Verner T. TUCKER, Appellee, v. Jack LOWER and Nancy Lower, Defendants, Nancy Lower, Appellant.

Page 320

434 P.2d 320

200 Kan. 1

Verner T. TUCKER, Appellee, v. Jack LOWER and Nancy Lower, Defendants, Nancy Lower, Appellant.

No. 45015.

Supreme Court of Kansas.

Nov. 27, 1967.

Syllabus by the Court

1. The provisions of K.S.A. 60-421 are construed and under this statute the admissibility of a conviction is not based upon the penalty imposed for the crime. It is based upon whether the crime involves dishonesty or false statement.

2. Drunkenness, reckless driving, allowing an unauthorized person to drive and having an open bottle in the car are not crimes involving dishonesty or false statement and convictions are inadmissible to impair credibility.

3. Larceny and receiving stolen property are crimes involving dishonesty and a conviction may be admitted for the purpose of impairing credibility subject to reasonable discretion of the trial court to determine relevancy.

4. This court on appeal disregards all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the parties.

5. The trial court has discretion to limit the opening statements of counsel within the bounds of propriety and the issues formed by the pleadings.

6. The record in an action to recover for personal injuries is examined and it is held the substantial rights of the defendant were not prejudiced under the facts of this case by limiting and excluding certain evidence, by refusing to order a remittitur of damages and by refusing to give defendant's requested instruction on mitigation of damages.

Paul A. Wolf, Hugoton, argued the cause and J. S. Brollier, Hugoton, was with him on the brief for appellant.

James R. Yoxall and Stanley E. Antrim, Liberal, argued the cause and were on the brief for appellee.

FROMME, Justice.

An action was filed for personal injuries received in a car accident. A jury returned a verdict against the defendant Nancy Lower. She has appealed.

The defendant on appeal concedes negligence and directs her argument to five alleged trial errors as they may relate to damages. The facts surrounding the injury can be highly summarized.

The plaintiff, Verner T. Tucker, was working for the city of Sublette when the accident occurred. He was helping to lay water lines north of an east-west county road and was standing near a water line ditch. Another road from the south connected with the east-west road to form a 'T' intersection. Defendant approached from the south and drove her car through the intersection, across the east-west road, over a three foot pile of dirt, across the water line ditch and struck plaintiff in the back. Defendant received a serious back injury. He claimed damages in the amount of $61,871.79. The jury awarded a verdict of $35,621.79.

The first trial error urged upon this court arises by reason of limitations placed upon the cross-examination of plaintiff.

Plaintiff had been convicted of various crimes over a period of thirty-one years preceding the trial of the damage action. From June 1963 to October 1965 he had been convicted of drunkenneess on five different occasions. During this same period he had been convicted of reckless driving, allowing an unauthorized person to drive his automobile and having an open bottle in his car.

In 1964 he was convicted of stealing a package of bacon from a supermarket. In 1960 he was convicted of petty larceny in Colorado and in 1955 of receiving stolen property in Illinois. In 1945 he was convicted of stealing a tire in Illinois and in 1934 he was convicted of assault with a deadly weapon. He was charged with stealing tools from a service station in North Dakota but the date of this incident is not shown in the record.

After plaintiff had testified in support of his cause of action for damages the defendant attempted to question him concerning these convictions. The trial court permitted cross-examination as to plaintiff's conviction in Illinois in 1945 for stealing a tire. For this crime plaintiff had been sentenced to the state penitentiary in Illinois for one to three years. The penalty imposed for the crime made it a felony and the trial court admitted the evidence.

Attempts to question the plaintiff on the other convictions were unsuccessful. The evidence of these convictions was either stricken from the record when it was determined they amounted to misdemeanors or the defendant was precluded from questioning plaintiff concerning them. The evidence of convictions was sought for the purpose of impairing credibility.

Our former statute (G.S.1949, 60-2801) was changed by the legislature in 1963. Our present code was in effect when this case was tried.

K.S.A. 60-420 provides:

'Subject to sections 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling him may examine him and introduce extrinsic evidence concerning any conduct by him and any other matter relevant upon the issues of credibility.'

K.S.A. 60-421 provides:

'Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.'

K.S.A. 60-422 in pertinent part provides:

'As affecting the credibility of a witness * * * (c) evidence of traits of his character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his conduct relevant only as tending to prove a trait of his character, shall be inadmissible.'

These codified rules of evidence relate to examination of a witness during the trial when his credibility is questioned. The issue is credibility and it is collateral to the main issues in the case.

At common law a person convicted of an infamous crime was incompetent to testify as a witness. (98 C.J.S. Witnesses § 507(a).) The common law rule was changed in Kansas to permit a person who had been convicted of a crime to testify but proof of such crime was permitted only as affecting credibility. (G.S.1949, 60-2801.) Our present statute limits evidence of convictions to impair credibility to those crimes involving dishonesty or false statement. This limitation is new. No cases on this particular subject are cited in the briefs and our research discloses none.

The recent codification of the rules of evidence in Kansas appears to be an outgrowth of the work of The National Conference of Commissioners on Uniform State Laws. K.S.A. 60-421 and 60-422 are identical in wording to Rules of Evidence 21 and 22 approved by the commissioners in 1953. (See 9A U.L.A. pp. 607, 608.) Kansas appears to be the only state which has adopted these Rules of Evidence. (See 9A U.L.A. p. 589.) Therefore we have no law from other states to guide us in determining when a crime involves dishonesty or false statement.

Some states limit the use of convictions for determining credibility of a witness to crimes generally. Others limit it to infamous crimes. Infamous crimes are treason, felony and the crimen falsi. At common law it was the nature of the particular crime which determined whether it fell in the latter classification and was inherently bad. Some states have adopted the rule that crimes involving moral turpitude are worthy of testing credibility. But in all of these various terms we find a vague and uncertain meaning which plagues the courts. (See 6 Jones on Evidence, 2d Ed. § 2441.)

An extensive and well written article on the subject of previous conviction of a crime as a test of veracity appears in 89 University of Pennsylvania Law Review, pp. 166, 174.

The Advisory Committee Notes aid in construing the purpose and meaning of these changes. With reference to K.S.A. 60-421 they read as follows:

'This section takes the logical view that evidence of previous conviction of a crime does not reflect on the credibility of the witness unless the crime involved dishonesty or false statement. It cannot be logically inferred, for example, that a person who has committed a crime of passion would perjure himself on the witness stand. * * *' (Gard-Kansas Civ.Proc. § 60-421, p. 392.)

The word 'crime' by statutory definition (K.S.A. 21-128) includes both felonies and misdemeanors. K.S.A 60-421 provides that evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. there appears no limitation except the crime must involve dishonesty or false statement. The statute does not distinguish between felonies and misdemeanors. The exclusion of such evidence on the ground it related to a misdemeanor was error. Admissibility is not based on the penalty imposed for the crime. It is based upon whether it involves dishonesty or false statement.

The dictionary (Webster's, Unaabridged, 3d Ed.) defines dishonesty as a lack of honesty, probity or integrity in principle; lack of fairness and straight forwardness; disposition to defraud, deceive or betray. When you add to 'dishonesty' the words 'false statement' you enlarge the category of crimes permitted to test credibility to those perpetrated by the use of fraud, deceit, perjury, trick or false statements.

With this background let us examine the crimes with which we are here concerned to determine if they fall outside the boundary prescribed by the statute.

Drunkenness, reckless driving, allowing an unauthorized person to drive and having an open bottle in the car are not generally considered to be crimes of an inherently bad nature. They are considered mala prohibita. They do not evidence dishonesty as that term is understood and no false statement, fraud, deceit or trick is associated with them. W...