Willie Caughman v. The Washington Terminal Company , 345 F.2d 434 ( 1965 )

WASHINGTON, Circuit Judge

(concurring in the result):

I agree that this judgment should be reversed under the Eichel decision of the Supreme Court, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963). Under these circumstances, I agree that it is appropriate to comment on issues raised by the parties which are likely to arise in a new trial. However, I think that the important matters dealt with in dictum in the last paragraph of the majority opinion require a somewhat fuller consideration.

The opinion characterizes as “insubstantial” the appellant’s assertion that “the trial judge’s refusal to permit him to introduce evidence of the Terminal Company’s previous practices relating to the handling of mail sacks” was error. Appellant had tried to introduce evidence of two separate but related practices. First, he wanted to show that two men were used to stack heavy mail sacks in the past; second, that requests by individuals for help in stacking heavy mail sacks had in the past been frequently denied. The opinion of the court might be read as indicating that evidence of all past practices should be excluded in a new trial. The trial judge in the first trial seemed to think that this was the proper rule. Several times he instructed appellant’s counsel to “restrict your proof to the day of the accident.”

In my view, the majority opinion should not be read as compelling this narrow view of admissibility. Indeed, the appellant concedes that it is appropriate to accept evidence on past practices going to plaintiff’s first point — that two men had often been used to stack heavy sacks in the past.¹ As I read the majority opinion, it finds that appellant has not shown error in the exclusion of evidence of past practices on this record. It does not foreclose the admission of such evidence in a new trial, at the discretion of the trial judge. According to McCormick, evidence of custom of business operations is usually admissible where practices are “reasonably regular and uniform.” McCormick, Evidence 343 (1954). If the custom of business operation is relevant to appellant’s theory of recovery, evidence going to establish what that custom was should be admitted. Cf. District of Columbia v. Armes, 107 U.S. (17 Otto) 519, 2 S.Ct. 840, 27 L.Ed. 618 (1882) ²

The admissibility of the -motion pictures should be left to the discretion of the trial judge. McCormick, Evidence 388-89. They were introduced as being relevant to establish the extent of appellant’s injuries and to attack his credibility. Appellant’s objection to their admission is not insubstantial. Motion pictures tend to divert the attention of the jury from the issues in the case. Here the motion pictures do not contradict appellant’s testimony with respect to his injury in any significant feature. His testimony about his residual injuries is compatible with the activities seen in the movies: driving a car, carrying packages, walking up stairs. Appellee urges here that the motion pictures were relevant to dispel the idea given by the appellant in the courtroom that he had a very limited degree of mobility. Clearly, it would be appropriate for the judge in the new trial to observe the movements of the appellant in the courtroom, then decide whether the motion pictures are necessary or helpful to give the jury a true impression of the severity of appellant’s residual injuries. The judge can first view the motion pictures out of the presence of the jury, as did the judge in the first trial.

Appellant also asserts that the motion pictures are “prejudicial” because they showed him “hustling,” that is, hiring out his car to drive persons home from the welfare food station with their packages of surplus food. In his cross-examination of appellant, defense counsel intensively questioned him, trying to establish that he was a “hustler.” The suggestion that he was a “hustler” was prejudicial, for a reason expressed by defense counsel in a bench conference: “There was a scandal in the newspapers, it was quite a racket * * There was a significant discrepancy in the testimony of appellant and his observed behavior on the film, which made the “hustler” issue relevant for purposes of impeachment, although prejudicial because it imputed participation in a “racket” to the appellant. The admissibility of such material depends on a balancing of the value of the testimony for impeachment purposes against its possibly prejudicial effect on the party’s case. The extent of permitted cross-examination and the admissibility of extrinsic evidence in matters of this sort must largely be left to the discretion of the trial court.

The hustler point becomes more disturbing, however, because of the part it plays in an apparent attempt by defense counsel to paint a dark picture of defendant’s general character. According to Wigmore, evidence on the character of a party in a civil suit is generally inadmissible. I Wigmore, Evidence § 64 (1940). The reasons for this rule are that a party’s character usually has no probative value; and that evidence going to character diverts attention from the disputed issues to the prejudice of a party. On the other hand, character as it relates to credibility might be relevant where, as here, a party’s credibility is one of the pivotal questions in the case. However, much of the matter elicited by defendant did not go to credibility in any proper sense; rather it was an attempt to portray appellant as a generally immoral person. The credibility issue should not open the door to an attack on a party’s general character.³ Six pages of the transcript record the extensive cross-examination of appellant on his disorderly domestic relations — his illegitimate children, his common law wife, his divorce. Defense counsel elicited the fact that appellant had been convicted of a violation of the Internal Revenue Code for the sale of unpackaged liquor in 1941. He tried to establish that appellant had had a poor work record. He tried, in general, to establish that appellant was a “welfare chiseler”: he had not been diligent in seeking work; he had not sought education or retraining that would fit him for a different kind of work; he took a taxi to a doctor’s office rather than a bus; and he was a “hustler.” Some of this was relevant to the question of damages; but it also had the prejudicial effect of creating the impression that appellant was a person undeserving of compensation. That this was the drift of the case as presented was suggested by a number of questions to the appellant about the make and year of his wife’s automobile, a question that seems to reflect the popular idea that “welfare chiselers” frequently drive flashy late-model cars.

In my view, the defendant should be cautioned against a repetition of this attempt to discredit the plaintiff by appeals to community bias. The cross-examination regarding appellant’s family relations and his conviction was clearly irrelevant. The evidence on whether appellant was a hustler was relevant to his credibility and to the measure of damages ; but it was also highly prejudicial, in that it suggested that appellant was an undeserving person.

The Eichel case, relied on in the opinion of the court, stresses the risk that evidence intended to go only to damages may prejudice the plaintiff’s case on the general question of defendant’s liability. It is true that malingering or income from another source might be relevant to diminish the damages claimed by plaintiff. But where the evidence going to establish malingering is part of a pattern of attempts to show that a plaintiff is a worthless person, and where the source of income is one associated with scandal, the trial court should exercise its discretion in deciding whether their value in determining damages outweighs their prejudice to plaintiff.

1 . As to this matter, appellee argues that appellant had adequate opportunity to, and did in fact, put on testimony. We need not consider this contention since we are reversing on other grounds.

2 . The trial court must determine whether probative value outweighs the risk of unfair prejudice to the defendant. An isolated act of negligence by an employee is inadmissible to prove that he was negligent at the time of the accident sued on. Small v. Pennsylvania R. Co., 65 App.D.C. 112, 115, 80 F.2d 704, 707 (1935), cert. denied, 297 U.S. 724, 56 S.Ct. 669, 80 L.Ed. 1008 (1936).

3 . “Obviously the character of a witness for truthfulness or mendacity is material circumstantial evidence on the question of the truth of particular testimony of the witness. The discussion of the rules which have developed as to character-impeachment will reveal certain general questions of balancing policies. Among them are these: How far in any particular situation does the danger of unfair prejudice against the witness and the party calling him from this type of impeachment outweigh the probable value of the light shed on credibility? Again, should the field of charaeter-impeaehment be limited so far as practicable to attack on the particular character-trait of truthfulness or should it extend to ‘general’ character for its undoubted though more remote bearing upon truthfulness, on the notion that the greater includes the less?

“It seems probable, moreover, that the tendency, particularly in civil cases, is to use this form of attack more and more sparingly. It was part of the melodrama of the pioneer trial to find ‘the villain of the piece.’ It fits less comfortably into the more business-like atmosphere of the present court-room.” McCormick, Evidence 86.