McQuage v. City of New York

Bastow, J.

The plaintiff appeals from a judgment entered upon a jury verdict in favor of the defendant. The action was brought to recover damages for personal injuries alleged to have been received while the plaintiff was in the process of boarding a bus owned and operated by the defendant. It appears to be undisputed that the bus was standing at its terminal point with the bus driver waiting for the scheduled departure time. The operator testified that when it was time to leave he closed the doors and drove away. He did not see the plaintiff and after driving twenty feet he heard a yell and brought the bus to a stop. He left the bus and found plaintiff lying in the street. The plaintiff, on the other hand, testified that as he was about to board the standing bus, the doors were closed and he was dragged some distance, receiving serious injuries that confined him to various hospitals and convalescent institutions for about fourteen months after the date of the accident. Plaintiff’s expert witness testified that to have the unusual stripping or avulsion of practically the entire skin of plaintiff’s right lower extremity “ he would have to be dragged to have the skin flayed open ” and that condition would not result if plaintiff fell against the side of a moving bus and was then thrown under the rear wheel. Defendant city offered no proof whatever that plaintiff had hit the side of the bus and had been run over by the rear wheel.

The issues presented to the jury were largely centered about the conflicting testimony of these two witnesses. In this posture of the case we conclude that the admission of certain testimony upon the cross-examination of the plaintiff and the receipt in evidence of a statement made by a passenger in the bus so weighted the scales against the plaintiff that he was deprived of a fair trial.

The defense, to a substantial degree, was centered upon showing that plaintiff was intoxicated. Upon cross-examination the plaintiff stated he had ‘ ‘ a couple of drinks during the day ’ ’. A portion of the hospital record disclosed that when plaintiff was admitted “ (t)here was an alcoholic odor on his breath.” The attending physician testified that the plaintiff had delirium tremens some hours after the accident. He expressed the opinion that this was the result of the shock of the accident and further stated that while such tremens were caused by prior habituation with alcohol, the conclusion could not be drawn that the plaintiff had been drunk at any specific time. Moreover, a policeman was permitted to testify, over the objection of plaintiff’s counsel, that a man accompanying plaintiff prior to the accident “ was apparently intoxicated

It was against this evidentiary background that defense counsel was permitted over objection to cross-examine the plaintiff in the following fashion: “ Q. Mr. McQuage, have you ever been convicted of intoxication, drunk and disorderly? * * * A. Convicted of being drunk? Q. Yes. A. Yes. Q. How many times, Mr. McQuage? * * * A. Oh, half a dozen different times in my life. * * * Q. When was the last conviction for drunkenness before the accident? [A.] I couldn’t say exactly the date, but it had been two, two and a half, three years.”

It is the contention of the defendant that this interrogation of plaintiff on cross-examination was proper under the rule permitting a party to impeach the credibility of his opponent’s witness by (a) questioning him concerning any immoral, vicious or criminal act of his life which may affect his character and tend to show that he is not worthy of belief or (b) showing that he had been convicted of a crime.

It is recognized that section 350 of the Civil Practice Act permits cross-examination of a witness as to his prior conviction of a crime for the purpose of affecting the weight of his testimony. Moreover, the cross-examiner is not concluded from further showing the conviction although it is admitted by the witness (cf. Moore v. Leventhal, 303 N. Y. 534, 538).

In the instant case the plaintiff was asked if he had ever been convicted of ‘‘ intoxication, drunk and disorderly ’ ’. In the first place there is no such crime in our Penal Law. Section 1221 of the Penal Law provides for arrest and punishment of any person intoxicated in a public place. Prior to 1911 this act was denominated a misdemeanor but in that year such characterization was omitted. (L. 1911, ch. 700.) It is now included in a third class of offenses which are neither felonies prosecuted by indictment and triable by common-law jury, nor misdemeanors triable by Courts of Special Sessions with or without the statutory jury of six, but one of the petty offenses triable summarily by a magistrate without a jury (cf. Matter of Cooley v. Wilder, 234 App. Div. 256, 259; People v. Grogan, 260 N. Y. 138,141; People v. Waters, 153 Misc. 686).

In People v. Murphy (177 Misc. 1042, affd. 263 App. Div. 1051, affd. 288 N. Y. 613), the defendant was accused in an indictment of escaping from a penitentiary in violation of section 1694 of the Penal Law after having been convicted and sentenced to that institution for public intoxication which was characterized in the indictment as a misdemeanor. It was held' that public intoxication was not a misdemeanor but one of the minor or petty offenses. It is significant to note that in the same year the Court of Appeals affirmed the judgment dismissing the indictment, the Legislature amended section 1694 to provide that one escaping from a penal institution is guilty of a misdemeanor if confined upon conviction for a “ misdemeanor, offense, traffic infraction, or violation of an ordinance ” (italicized portion added by L. 1942, ch. 142). The same result could have been achieved, insofar as we are here concerned, by amending section 1221 to provide that public intoxication was a misdemeanor but this was not done.

It is recognized that section 1221 by its provisions does not apply to the city of New York but here the questions relating to “ intoxication ” did not specify any particular place. No foundation was laid to show that the conviction took place in a jurisdiction where “ intoxication ” was a crime and no such contention is advanced by the defendant upon this appeal. We conclude that the cross-examination was improper and prejudicial if its purpose was to show that plaintiff had been convicted of a crime.

The defendant contends that the cross-examination as to prior convictions for intoxication was proper as bearing generally upon the credibility of the plaintiff. The rule is recognized that a trial court is granted wide latitude in permitting cross-examination of any witness by proof of any specific act or practice affecting his character and tending to show that he is not worthy of credit. The impeachment is solely for the purpose of diagnosing his conscience and thereby enabling the jury to determine the extent of his veracity and credibility as a witness. Testimony which does not tend legitimately to discredit his evidence is irrelevant and should be excluded (People v. Richardson, 222 N. Y. 103,107). The witness may be “ interrogated upon cross-examination in regard to any vicious or criminal act of his life ” that has a bearing on his credibility as a witness. (People v. Sorge, 301 N. Y. 198, 200.)

We have herein found that the convictions for public intoxication were not criminal acts. In the setting here presented we believe that the receipt of the evidence was prejudicial and should have been excluded. The obvious purpose of the testimony was not to impeach the credibility of the plaintiff but to show that he had been intoxicated on other occasions and thus permit the jury to draw the inference that he was intoxicated at the time of the happening of the accident. Proof of intoxication on occasions prior to the accident was not admissible to prove or suggest that plaintiff was intoxicated at the time of the accident. The authorities relied upon by the defendant relate to proof of intoxication at the time of the event. It has been said upon the general subject of testimonial impeachment that “ a general habit of intemperance tells us nothing of the witness’ testimonial incapacity except as it indicates actual intoxication at the time of the event observed or the time of testifying’; and hence, since in its bearing upon moral character it does not involve the veracity-trait * * * it will usually not be admissible.” (3 Wigmore on Evidence [3d ed.], § 933, p. 481.)

The defendant called as a witness a Mrs. Setkulich, who had been a passenger on the bus. During her direct examination a statement in writing was received in evidence that the witness had signed on the day of the accident. Certain portions thereof undoubtedly were admissible as inconsistent with her testimony. The writing, however, not only disclosed these inconsistencies but included statements that were speculations on the part of the witness or the expression of an opinion. The writing, among other things, stated that the plaintiff and his companion may have “ tried to board [the bus] by the rear exit door. I do not know. # * * This accident was not the fault' of the bus driver.”

The portions of the statement inconsistent with the testimony of the witness could have been properly admitted for the purpose of impeachment (Civ. Prac. Act, § 343-a) but such prior self-contradictions are not to be treated as having any substantive or independent testimonial value (Matter of Roge v. Valentine, 280 N. Y. 268, 276). It is doubtful if the charge of the court clearly informed the jury as to this rule of law. The court said that ‘ ‘ [y] ou will consider her testimony today, and the matters contained in the statement, and you will determine what credence to give to her entire testimony. In other words, the statement has not been received as proof of the matters therein set forth, but for whatever weight you desire to accord her testimony. * * * You will take the statements themselves, and also her testimony, and determine what weight to accord to it.”

Thus, the defendant was enabled to convey to the jury the irrelevant speculation of the witness that the plaintiff was trying to enter the bus by the exit door. This, of course, was immaterial and highly prejudicial evidence laid before the jury to bolster the defendant’s claim that plaintiff and his companion were intoxicated.

We conclude that these accumulated errors affected a substantial right of the plaintiff and deprived him of a fair trial. There were close questions of fact presented to the jury. It is significant that they twice returned for instructions. On the first occasion they sought information with reference to “ plaintiff’s statement with, reference [to] which door he was entering.” The only evidence in the case was plaintiff’s testimony that he attempted to enter the front door. The speculation in this writing of the bus passenger that he may have been trying to enter the rear exit door had apparently not been lost upon the jury and they may well have been using it as substantive testimony. The jury an hour and a half later requested to hear the bus driver’s testimony, which was read to them. We cannot say that the improperly received evidence was not a decisive factor in the verdict in favor of the defendant.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.