C. L. Vincent, D/B/A Vincent Trucking Company, Ennis Lee Hemphill, and Superior Insurance Company, a Corporation v. L. H. Young
1963 U.S. App. LEXIS 3734 · 324 F.2d 266
November 14, 1963 · Docket 7325
Headnotes
Generated summaries- Headnote 1
The trial court excluded a transcript of the plaintiff’s former testimony that the defendants sought to introduce to prove the fog and road conditions, applying the rule that non‑party prior statements are limited to impeachment.
- Headnote 2
The court noted that the limitation on admissibility of prior statements applies only to non‑parties; a party’s own earlier testimony may be offered substantively to prove the matters asserted.
- Headnote 3
The court found that although the excluded evidence might have been admissible, the error did not affect the defendant’s substantial rights and therefore did not require reversal.
- Headnote 4
All of the former testimony was referred to on cross‑examination and heard by the jury, allowing the trier of fact to evaluate the plaintiff’s credibility, so the exclusion was deemed harmless.
- Headnote 5
The court cited Rule 61 as the procedural mechanism for setting aside a judgment, noting that the error here was not sufficient to invoke that remedy.
- Headnote 6
The opinion emphasized that a litigant who asks to set aside a judgment must demonstrate prejudice, citing Palmer v. Hoffman and Creekmore v. Crossno.
- Headnote 7
The trial court excluded the plaintiff’s former testimony as evidence of fog conditions because the rule limits non‑party prior statements to impeachment purposes.
- Headnote 8
The opinion distinguishes the limitation on non‑party statements from the rule that a party’s own prior testimony may be introduced as substantive evidence.
- Headnote 9
The court held that the plaintiff bears the burden of demonstrating prejudice from the trial court’s exclusion of evidence, citing the harmless‑error doctrine.
- Headnote 10
The jury heard the former testimony through cross‑examination, allowing it to evaluate credibility, so the trial court’s refusal to admit the transcript as substantive evidence was not harmful.
- Headnote 11
The court noted that although the evidentiary error was identified, it did not rise to the level required for relief under Rule 61 because it was harmless.
- Headnote 12
The court rejected the plaintiff’s offer of the prior testimony because the rule limits non‑party statements to impeachment purposes, citing Brooks v. United States.
- Headnote 13
The opinion notes that the limitation on admissibility applies only to non‑parties; a party’s own prior testimony may be used substantively.
- Headnote 14
The court affirmed that a litigant must establish prejudice to set aside a judgment, referencing Palmer v. Hoffman and Creekmore v. Crossno.
- Headnote 15
The opinion explains that the jury heard the prior testimony during cross‑examination, allowing it to evaluate credibility, so the error was harmless.
- Headnote 16
The court referenced Rule 61 in discussing the procedural mechanism for setting aside a judgment based on reversible error.
- Headnote 17
The trial court excluded the plaintiff’s earlier testimony because the defendants sought to use it to prove fog and road conditions, applying the rule that non‑party statements are limited to impeachment.
- Headnote 18
The opinion distinguishes the non‑party limitation from the rule that a party’s own prior testimony may be used substantively, citing the authorities in C.J.S. Evidence.
- Headnote 19
The court noted that the cross‑examination placed all relevant prior testimony before the jury, allowing the trier of fact to evaluate credibility, and concluded the exclusion did not prejudice the defendant’s substantial rights.
- Headnote 20
Citing Palmer v. Hoffman and Creekmore v. Crossno, the opinion placed the burden on a litigant seeking to set aside a judgment to demonstrate prejudice resulting from the error.
- Headnote 21
The court referenced Rule 61 in explaining that, because the error was deemed harmless, no relief from the judgment was warranted.
- Headnote 22
The trial court excluded the plaintiff’s earlier testimony about fog conditions because, under the evidentiary rule, non‑party prior statements are limited to impeachment and may not be admitted to prove the existence of fog or road conditions.
- Headnote 23
The court noted that the limitation on prior statements applies only to non‑parties; a party’s own earlier testimony may be introduced as substantive evidence of the matters it contains.
- Headnote 24
The burden is on the party seeking reversal to demonstrate prejudice; without such showing, the error is considered harmless and does not warrant reversal.
- Headnote 25
The jury heard the former testimony on cross‑examination and could evaluate the plaintiff’s credibility; therefore the exclusion was harmless absent a showing of prejudice.
- Headnote 26
The court referenced Rule 61 in discussing the standard for setting aside the judgment, noting that the error in question did not rise to the level required for relief.
- Headnote 27
The plaintiff attempted to introduce a transcript of his earlier testimony to prove the fog and road conditions at the time of the collision. The trial court excluded the transcript, applying the rule that non‑party prior statements are limited to impeachment.
- Headnote 28
The court noted that the limitation on prior statements applies only to non‑parties. Prior testimony of a party, even from a former case, may be admitted as substantive evidence to prove the facts asserted.
- Headnote 29
The appellate court emphasized that a party challenging a judgment must demonstrate that the excluded evidence caused prejudice. Citing Palmer v. Hoffman, the court held that without such showing, the error is deemed harmless.
- Headnote 30
The court noted that the plaintiff’s prior testimony was read to the jury on cross‑examination, allowing the jury to assess credibility. Because the jury heard the contradictions, the exclusion of the transcript did not prejudice the defendant.
- Headnote 31
After finding the evidentiary error harmless, the court referred to Rule 61 as the procedural mechanism for a party to obtain relief from a judgment based on a reversible error.
- Headnote 32
The trial court excluded the plaintiff’s former testimony because it sought to prove fog conditions, and the appellate court affirmed that such non‑party statements are limited to impeachment under the rule articulated in Brooks v. United States.
- Headnote 33
The court distinguished non‑party statements from party statements, noting that a party’s own prior testimony is generally admissible as substantive evidence per C.J.S. Evidence §§ 302, 311, 381.
- Headnote 34
During cross‑examination the plaintiff’s former testimony was read to the jury, allowing assessment of credibility; the appellate court held that the exclusion of the transcript for substantive use did not prejudice the defendant.
- Headnote 35
The court applied the harmless‑error doctrine, finding that the excluded evidence did not affect the defendant’s substantial rights and therefore did not warrant reversal, citing Palmer v. Hoffman.
- Headnote 36
Although Rule 61 authorizes relief from judgment for clear error, the court concluded that the evidentiary error was harmless and thus no relief under Rule 61 was warranted.
- Headnote 37
The trial court excluded the plaintiff’s earlier testimony because it was a non‑party statement, applying the rule that such statements are admissible solely for impeachment, as set out in Brooks v. United States.
- Headnote 38
The opinion distinguished non‑party statements from party statements, noting that a party’s former testimony may be introduced to prove the matters asserted.
- Headnote 39
The court reiterated that the burden rests on the party seeking reversal to demonstrate prejudice, citing Palmer v. Hoffman and Creekmore v. Crossno.
- Headnote 40
The court observed that the plaintiff’s prior testimony was read on cross‑examination and the jury had a meaningful opportunity to evaluate credibility; therefore the exclusion did not affect substantial rights.
- Headnote 41
The opinion cited Rule 61 as the procedural mechanism for setting aside a judgment, although it concluded that the error was harmless in the present case.
Opinion
This is a personal injury action arising out of a collision between an automobile-driven by the plaintiff and a truck 1 stalled on a Kansas highway. In a form-er trial, the court directed a verdict for' the defendants. On appeal that judgment was reversed. Young v. Vincent, 10 310 F.2d 709. On the second trial, the plaintiff’s testimony as to the weather conditions and the manner in which he operated his automobile immediately prior to the collision, was in some respects substantially different from that given at the first trial. For the purpose of impeachment, the defendants, on cross-examination, questioned the plaintiff as to his former conflicting testimony, which was read to him from a transcript. Some of the discrepancies were admitted by the plaintiff and an explanation offered. Later in the trial, the defendants offered in evidence a transcript of a portion of the former testimony, as admissions of the plaintiff, to prove the weather and road conditions existing at the time of the collision and plaintiff’s operation of his automobile under those conditions, for the purpose of establishing contributory negligence. This offer was rejected. 2 The only question presented by this appeal is whether it was prejudicial error to exclude the offer.
The material facts in the case are that the plaintiff, Young, lived in Morland, Kansas, which is located 13 miles west of Hill City, Kansas. He left Morland by automobile early in the morning on March 9, 1960, and had driven to Hill City, then south approximately 14 miles to a point where he ran into the rear end of the truck. There was variable fog throughout the trip. He testified that it was dark when he left Morland, and while driving to Hill City he encountered a moving fog which at times was extremely intense, particularly at the lower levels of the highway. As he traveled south from Hill City it was still foggy, but less intense than before. The highway passed through rolling country, rising over knolls and dipping into what was sometimes referred to as “draws”, where the highway was lower than usual. The truck was stalled near the bottom of one of these “draws”, a considerable distance from the beginning of the downward slope leading to it. The plaintiff testified that as he approached the scene of the collision, his visibility was from to % mile, and this condition remained fairly uniform. He stated that shortly after he crossed a culvert at the lowest point in the highway, he was suddenly engulfed in heavy fog, and his visibility was almost nil. He used his brakes to slacken his speed until he ran over an object 3 on the highway, at which time he sharply applied the brakes, and the crash occurred shortly thereafter. The effect of plaintiff’s testimony was that his visibility was not significantly affected by the fog until after he crossed the culvert.
On cross-examination, plaintiff was confronted with his testimony given at the prior trial, which was in some respects directly contrary to his present testimony. At the first trial, he testified that the fog conditions south of Hill City were worse than they had been between Morland and Hill City, that in some of the lower places his visibility was limited to one rod (16% feet), and that as he started the decline prior to the collision he was engulfed in heavy fog which continued until he ran into the truck. 4 There was evidence that the decline began about 1000 feet north of the culvert and that the culvert was approximately 600 feet north of the point where the truck was stalled. The plaintiff explained that after the first trial he read the transcript of the proceedings, and after going over the area he concluded that he was mistaken as to the extent of the fog conditions immediately preceding the collision. A game warden who was traveling south from Hill City came upon the scene within a very short time after the collision. 5 Others, including highway patrolmen, were at the scene of the accident within a short time. During this time the fog conditions in the area remained about as described by the plaintiff.
In rejecting the proffered evidence, the court applied the rule that prior statements of a witness who is not a party to an action are admissible only to impeach or discredit a witness, and are not admissible as substantive evidence of the facts to which the former statements relate. See Brooks v. United States, 10 Cir., 309 F.2d 580. This rule, however, has no such limitation as to parties to litigation. Prior statements of a party, including testimony in a former case, are generally admissible as primary evidence against the party making them. 31 C.J.S. Evidence §§ 302, 311, 381. 6 Pope v. Allis, 115 U.S. 363, 6 S.Ct. 69, 29 L.Ed. 393; Friedman v. Sealy, Inc., 10 Cir., 274 F.2d 255; Rogers v. Edward L. Burton & Co., 10 Cir., 137 F.2d 284; Order of United Com. Travelers v. Greer, 10 Cir., 43 F.2d 499; Kinghorn v. Pennsylvania R. Co., 2 Cir., 47 F.2d 588. Even though this evidence was admissible to establish the facts to which it related, we are satisfied that the error did not affect substantial rights of the defendant which would warrant a reversal. Rule 61, Fed.R.Civ.Proc. On cross-examination all of the relevant evidence given at the former trial was meticulously referred to by counsel for the defendants and heard by the jury in question and answer form. In comparing his former testimony with that given by the plaintiff in the second trial, the jury, as the sole judge of plaintiff’s credibility, was free to believe or to disbelieve that which was in conflict with the former testimony. There was no substantial conflict in the evidence at the second trial as to the fog conditions at the time and immediately after the collision. There was no evidence except the plaintiff’s testimony as to the condition of the fog and the road as he approached the point of collision, although there was other evidence of these conditions shortly thereafter. If the jury had disbelieved plaintiff’s testimony, as it had a right to do, and found that the conditions were different than he testified they were, it is unlikely that it would have returned a verdict favorable to him. A litigant who seeks to have a judgment set aside because of an erroneous ruling has the burden of showing prejudice. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645; Creekmore v. Crossno, 10 Cir., 259 F.2d 697.
Affirmed.
. . The truck was owned by the defendant Vincent, was driven by the defendant Hemphill, and insured by the defendant Superior Insurance Company.
. . In rejecting the offer of proof, the court stated:- “I will make this ruling: That the plaintiff is now present in Court, subject to be called and interrogated on each of the questions asked and the answers given at the previous trial. And the Court would allow the widest of latitude for impeachment purposes if the plaintiff is called by the defendant respecting the matters which you covered in the original trial.”
. . It developed that the object which was struck by the plaintiff’s car was a reflector which had been placed in the center of the highway by the driver of the truck.
. . The following questions and answers illustrate the difference in plaintiff’s testimony at the two trials. At the first trial, this testimony was given:
“Q. “Q. Well, was it at the top of the knoll or as you went down the hill? A. Well, the fog came in, caught me at the top of the hill. Q. Caught you at the top of the knoll. And was it at the top of the knoll when your visibility was limited first to one rod, at that particular point? A. No, it thickened as I moved down the slope. Q. Did it get less than a rod? A. My visibility, no. Q. All right. When did the visibility get reduced to about a rod with reference to the downward slope, in your judgment?
A. I can’t give you time in there. This thing happened, it was all of a sudden.
I, just as I came over that crest this thing enveloped me so suddenly.”
At the second trial, this testimony was given by plaintiff:
“Q. “Q. Now, which is true, did the fog catch you at the top of the hill or did the fog catch you down at the culvert? A.' The best I recall, I had passed the culvert and that’s when the fog enveloped me. Q. And it’s your sworn testimony to this Jury today that you didn’t get into the heavy fog until you passed the culvert after you had come completely down that downgrade hill? A. That is my testimony when I was called. Q. And this answer that you gave before was wrong, is that correct? A. Mistaken, yes, sir.”
. . The game warden testified that there was considerable fog on the highway all the way from Hill City, but that he was able to see within the range of the bright lights of his automobile; that when he came down the slope he did not encounter dense fog until after he had crossed the culvert; that within seconds he saw the defendant Hemphill in the highway waving his arms and he applied his brakes; that to avoid hitting the plaintiff’s car he was required to go “into the ditch.” Hemphill testified that immediately after the crash, he proceeded north from the vehicles to place a lighted fusee, but did not have time to place it before the game warden arrived.
. . It is not contended that the plaintiff was bound by his former testimony.