Ingle v. Roy Stone Transfer Corporation

156 S.E.2d 265 (1967) 271 N.C. 276

J. Zeb INGLE
v.
ROY STONE TRANSFER CORPORATION and Billy Jack Harbour.

No. 853.

Supreme Court of North Carolina.

August 25, 1967.

Smith, Leach, Anderson & Dorsett by C. K. Brown, Jr., Raleigh, H. Clay Hemric, Burlington, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter by Stephen P. Millikin, Greensboro, for defendant appellees.

SHARP, Justice.

For the purpose of impeaching plaintiff's witness Carter, counsel for defendant asked him if he had not "been convicted of several criminal charges." Over plaintiff's objection, counsel elicited from Carter that he had been convicted of the following offenses: Speeding 65 MPH in a 55 MPH zone; exceeding a safe speed; drunken driving; operating a motor vehicle while his license was suspended; disregarding a stop sign; public drunkenness; and allowing an unlicensed minor to operate a motor vehicle. Plaintiff's assignments of error 1 and 4 are based upon the admission of this evidence.

Plaintiff argues that convictions for violations of the motor vehicle laws have no direct bearing upon veracity and indicate no moral turpitude. He contends that cross-examination for the purpose of impeaching a witness should be confined to such offenses as false pretense, fraud, cheating, and other crimes indicating a disposition to falsify. He cites the following comment of Seawell, J., made by way of dicta, in State v. King, 224 N.C. 329, 333, 30 S.E.2d 230, 232: "It would be a barbarous rule which called in question a man's veracity because of the violation of a petty traffic law of which he may not have any knowledge." The decision in State v. King was that record evidence showing the criminal convictions of a State's witness was not competent for the purpose of impeaching him.

In this State, a witness may be impeached by evidence that his general character is bad or it may be corroborated by evidence that it is good. State v. Troutman, 249 N.C. 395, 106 S.E.2d 569; State v. Ellis, 243 N.C. 142, 90 S.E.2d 225; State v. Nance, 195 N.C. 47, 141 S.E. 468; In re McKay's Will, 183 N.C. 226, 111 S.E. 5; Wilson Lumber and Milling Co. v. Atkinson, 162 N.C. 298, 78 S.E. 212, 49 L.R.A.,N.S., 733; State v. Bullard, 100 N.C. 486, 6 S.E. 191; see State v. King, supra; Stansbury, North Carolina Evidence § 107 (2d Ed., 1963). For the purpose of impeachment, the witness himself is subject to cross-examination as to his convictions of crime. State v. Norkett, 269 N.C. 679, 153 S.E.2d 362 (defendant admitted convictions of assult with a deadly weapon, store breaking, and larceny); State v. Sheffield, 251 N.C. 309, 111 S.E.2d 195 (defendant admitted conviction of robbery); Nichols v. Bradshaw, 195 N.C. 763, 143 S.E. 469 (witness convicted of "blockading"); State v. Colson, 194 N.C. 206, 139 S.E. 230 (witness cross-examined with reference to violations of the prohibition law and failure to support his wife); Coleman v. Southern R. R. Co., 138 N.C. 351, 50 S.E. 690 (The court said, "It was competent, to impeach the plaintiff, to show by him that he had been convicted of forcible trespass.").

In State v. Sims, 213 N.C. 590, 197 S.E. 176, defendant, indicted for murder, testified as a witness in his own behalf. On cross-examination, the State drew from him admissions that he had been convicted of "beating a ride on a freight train" and that he had six times been "up for gambling" and sentenced therefor. With reference to this evidence, the Court said:

"It is not the practice in this jurisdiction to limit the cross examination for the purpose of impeachment to felonies, or to crimes involving moral turpitude. In fact, cross examination for the purpose of impeachment is not limited to conviction of crimes. Any act of the witness which tends to impeach his character may be inquired about or proven by cross examination." Id. at 593, 197 S.E. at 178.

These cases, inter alia, clearly justify the statement in Stansbury, North Carolina Evidence § 112 (2d Ed., 1963) that, for the purpose of impeaching a witness, "apparently any sort of criminal offense may be inquired about. * * *" In discussing what crimes are relevant to indicate bad character as to credibility, Wigmore says: "If in a given jurisdiction general bad character is allowable for impeachment, then any offence will serve to indicate such bad character." Wigmore, Evidence § 980, p. 538 (3d Ed., 1940).

Plaintiff would have us change this rule, but, as pointed out by McCormick in his discussion of conviction of crime as a ground of impeachment, much confusion has resulted in those jurisdictions which, by statute, have limited the impeaching effect of convictions to "infamous crimes" and to those involving "moral turpitude." He says:

"The California Code and codes modeled upon it, adopt the limitation to `felonies,' which is at least simple to apply. Similarly easy of administration is the English description `any felony or misdemeanor.' This last seems to be the construction which some of the courts place upon the statutes worded in terms of `crime' or `any crime.' But most courts, oversensitive perhaps to the feelings of witnesses, have been unwilling to accept such simple mechanical tests, and have read into such general statutes the requirement that as to misdemeanors at least, the offense must be one involving `moral turpitude.' Thus does the serpent of uncertainty crawl into the Eden of trial administration. Still more uncertain is the situation in the states which leave to the trial judge's discretion whether the particular conviction substantially affects the credibility of the witness. It seems questionable whether the creation of a detailed catalog of crimes involving `moral turpitude' and its application at the trial and on appeal is not a waste of judicial energy in view of the size of the problem. Moreover, it seems that shifting the burden to the judge's discretion is inexpedient, since only in a minority of cases will the judge have adequate information upon which to exercise such discretion. A clear certain rule like the English one is preferable, despite its somewhat arbitrary cast. Perhaps better still is the proposal of the Uniform Rules to limit impeachment to conviction of crimes `involving dishonesty or false statement.' a fairly definite, but not arbitrary criterion." McCormick, Evidence § 43, pp. 90-91 (1954) (Emphasis added).

In 98 C.J.S. Witnesses § 507, pp. 407-408 (1957), (cited by plaintiff as 70 C.J. § 1052 at p. 851) as bearing upon a witness' credibility, we find this statement: "(I)t is usually held improper to show the conviction of a mere misdemeanor or minor offense which does not involve moral turpitude, or an offense which is not regarded as being infamous or crimen falsi in its nature." The footnotes to the above quotation disclose that in other jurisdictions the following convictions have been held inadmissible for the purpose of impeachment: adultery, burglary of the second degree with sentence to the county jail for six months, disorderly conduct, vagrancy, first conviction for drunken driving of automobile, petit larceny, violation of liquor laws; assault with a deadly weapon where imprisonment was in the county jail; carrying concealed weapons; drunkenness and possession of intoxicating liquor; obtaining money under false pretenses, assault, drunkenness and disorderly conduct, fighting and shooting craps, gaming, operating a motor vehicle while intoxicated, violations of Dyer Act relating to transportation of stolen property, making false tax schedule, prostitution, throwing stones at a railroad train, deserting wife and children, operation of still. These examples, from many states, illustrate the problem posed and point up the diversity of opinion as to what crimes cast doubt upon an individual's credibility and adversely affect his general character. Certainly, a conviction for violating a city ordinance against spitting on the sidewalk would not cast doubt on a person's credibility; neither, ordinarily, will a conviction of speeding 45 MPH in a 35 MPH zone— certainly not if he pled guilty! We are not prepared to say, however, that a conviction of any one of the majority of the crimes listed in the above C.J.S. footnote would not thereafter cast some doubt upon the credibility of the person convicted, nor do we think that a person who has been guilty of drunken driving, or who consistently violates motor vehicle laws designed to protect life and property on the highway, can claim an unblemished general character.

In McMullen v. Cannon, 129 Ind.App. 11, 150 N.E.2d 765, the plaintiff, who testified in his own behalf, was asked on cross-examination whether he had been convicted of operating a motor vehicle under the influence of intoxicating liquor. The objection of his counsel was sustained upon the ground that the conviction had no bearing on the witness' credibility. In ordering a new trial because of the exclusion of the evidence, the Appellate Court of Indiana said:

"In this state the rule is deeply entrenched in the case law that a witness, including a party to the action who takes the stand as a witness in his own behalf, may be required on cross-examination, as affecting his credibility, to answer as to previous convictions, whether such convictions were of felonies or misdemeanors.

* * * * * *

"A reference to the latest annotation on the question, found in 20 A.L.R.2d 1217, section 3 on page 1218, indicates that the courts which have passed on the question are, as usual, divided. It is interesting to note, however, that in New York, under a statute providing that a conviction for traffic infraction may not be introduced to impeach the credibility of a witness, such statute was construed so as not to include a conviction for drunken driving and the cross-examination of the defendant driver as to whether he had been convicted of driving while intoxicated was held permissible. See Geiger v. Weiss, 1935, 245 App.Div. 817, 281 N.Y.S. 154."

Accord, Black v. State, 215 Ark. 618, 222 S.W.2d 816; State v. McKissic, 358 S.W.2d 1 (Mo.Sup.Ct.1962); Monaghan v. Keith Oil Corporation, 281 Mass. 129, 183 N.E. 252.

We also adhere to our rule, which has the virtue of certainty. Responsible counsel will not abuse it. Jurors are intelligent people; most are also motorists, and, should abuse occur, they can be counted on to evaluate the situation properly. Furthermore, the judge is in charge of the trial, and he has plenary power to protect a witness from harassment and to keep cross-examination within the bounds of reason.

Plaintiff's assignment of error 6, 7, 10, and 11 relate to the court's charge upon reckless driving as it relates to the issue of contributory negligence. Plaintiff and defendant each alleged that the other was guilty of reckless driving. In charging upon the first issue, the judge read G.S. § 20-140 to the jury and then said:

"The Court instructs you that, under this section, a person is guilty of reckless driving if (1) he drives an automobile or motor vehicle on a public highway in this State carelessly and heedlessly in a willful or wanton disregard of the rights and safety of others, or (2) if he drives an automobile on a public highway in this State or a motor vehicle on a public highway of this State without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property."

Before giving the preceding instruction, the judge told the jury to bear the definition of reckless driving in mind so that he would not have to repeat it in charging upon the issue of contributory negligence. On the second issue, he charged as follows:

"Now, on this issue, the defendant says that the plaintiff was guilty of specific acts of contributory negligence. One, that the plaintiff was guilty of reckless driving, and the Court has explained that term to you. If you find the plaintiff, on said date and occasion and in the manner he drove the milk truck, was guilty of reckless driving in either of the two particulars set forth in the explanation by the Court, then that would be negligence on his part, and if you find that was a proximate cause of the injury he suffered, then you would answer the second issue YES."

Plaintiff contends (1) that there was no evidence tending to show that he was guilty of reckless driving and (2) that, if there was, the judge's instruction failed to comply with G.S. § 1-180 in that he failed utterly to tell the jury what facts they must find in order to adjudge plaintiff guilty of culpable negligence.

A violation of G.S. § 20-140 is negligence per se and gives rise to both civil and criminal liability. Dunlap v. Lee, 257 N.C. 447, 126 S.E.2d 62, 96 A.L.R.2d 754; Carswell v. Lackey, 253 N.C. 387, 117 S.E.2d 51; but allegations as to reckless driving in the words of G.S. § 20-140 without specifying wherein the party was reckless amount to no more than an allegation that the party charged was negligent. They are but conclusions of law which are not admitted by demurrer. Troxler v. Central Motor Lines, 240 N.C. 420, 82 S.E.2d 342. They do not justify a charge on reckless driving. Dunlap v. Lee, supra; Fleming v. Drye, 253 N.C. 545, 117 S.E.2d 416. Reckless driving is made up of continuing acts, or a series of acts, which, in themselves, constitute negligence. To plead reckless driving effectively, the pleader must particularize with reference to the specific rules of the road which the motorist was violating and his manner of doing so. Usually, in doing this he will merely repeat previous or subsequent allegations with reference to negligence or contributory negligence, and nothing but excess verbiage has been added to the case. Civilly, a person is equally liable for injuries resulting from his ordinary negligence and from culpable negligence in the form of reckless driving where no intentional injury is involved. Similarly, when the judge has correctly instructed the jury upon the law applicable to the various acts of negligence upon which the pleadings and evidence require a charge, there is no need to reassemble the parts and present them to the jury in a packaged proposition labeled reckless driving, for the whole is equal to the sum of its parts. If, however, he undertakes to do so, G.S. § 1-180 requires him to tell the jury what facts, which they might find from the evidence, would constitute reckless driving. It is not sufficient for the judge to read the statute and leave it to the jury—as he did here—to apply the law to the facts and to decide for themselves what plaintiff did, if anything, which constituted reckless driving. Sugg v. Baker, 258 N.C. 333, 128 S.E.2d 595; Dunlap v. Lee, supra. Such an instruction abdicates the judicial function and permits the jury "to roam at large in an unfenced field."

The language in each section of the reckless driving statute, G.S. § 20-140, defines culpable negligence. Dunlap v. Lee, supra. "Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others." State v. Cope, 204 N.C. 28, 30, 167 S.E. 456, 458. The intentional, wilful or wanton violation of a safety statute or ordinance which proximately results in injury is culpable negligence; an unintentional violation, unaccompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, is not. State v. Cope, supra.

Here, the evidence discloses that plaintiff was not traveling at a dangerous speed. "Mere failure to keep a reasonable lookout does not constitute reckless driving. To this must be added dangerous speed or perilous operation." State v. Dupree, 264 N.C. 463, 142 S.E.2d 5. Neither the intentional nor the unintentional violation of a traffic law without more constitutes reckless driving. State v. Gurley, 253 N.C. 55, 116 S.E.2d 143; State v. Sutton, 244 N.C. 679, 94 S.E.2d 797. To suggest that plaintiff intentionally violated G.S. § 20-154(a) when he turned across the road to enter the Smith driveway is to attribute to him suicidal motives. Taking the evidence in the light most favorable to defendants, however, and applying the law relating to reckless driving to it, the judge could have correctly charged the jury as follows: If you should find that defendant Harbour gave an audible warning with his horn of his intention to pass the milk truck; that he gave it in adequate time for plaintiff to have avoided injury which would probably result from a left turn; that plaintiff heard the horn; that notwithstanding, he heedlessly turned to his left across the highway without first looking to see that the turn could be made in safety and without making any effort to ascertain the whereabouts of the vehicle from whence came the signal he had heard—such conduct would constitute reckless driving and negligence on the part of plaintiff. If you should further find that such negligence on the part of plaintiff contributed to his injury as a proximate cause or one of the proximate causes thereof, you would answer the second issue YES.

The issue of contributory negligence was properly submitted to the jury, but, for the failure to charge correctly on reckless driving, there must be a

New Trial.