*1 see concerning partnership definition comprehensive As a where 428, 297 N.W. Lloyd, 230 Iowa Butler features salient “The follows: effect appears properly and profits interest community of are a ‘partnership’ community employed, a capital community of interest losses, a on mutual predicated relationship administration, a power between contract terms by the consent, evidenced and sur- circumstances and all parties, parties, conduct rounding transactions.” relationship holding the correct
The trial its and tenant of landlord that parties between is affirmed.—Affirmed. decision sitting. Hats, J., not except concur
All JUSTICES Book, of Otto of estate Book, executors Book Gustave Olaf Datema, deceased, appellants, William John appellee. Rol R. Martin Raymond of estate administrator Rollefson, Datema, deceased, appellant, William lefson, v. John appellee. No. 51458. 470) N.W.2d (Reported in 131 *2 1964. November Weible City, appellants. & Stipp, Forest Boyle Lake, Schuler, & for appellee. Clear wrongful death involves two appeal J. This actions
Moore, p.m. May At about for trial and also here. consolidated Datema, defendant, William driven John 1963,the automobile traveling east which struck the rear of Olaf Book’s vehicle coming from vehicle just City. Forest Highway on east of left. Defendant passing prevented east defendant from him but traveling ahead was aware Book automobile was to the car impact Book’s veered stop. was unable to After the Book road. it left the north and then back to the south where killed. passenger Martin R. Rollefson were de- negligence: (1) petition alleged grounds of Each two speed than operating greater at a fendant was his automobile clear assured permit stop would bring him to it to a within than greater speed (2) driving at a distance ahead and regard for conditions proper, having was reasonable due 321.285. Defendant’s existing, contrary both Code section *3 allegations. denied answers these all evidence Before trial motion to exclude defendant’s charge relating to regarding his of to a criminal alleged grounds negligence was sustained. one or both of the as introduced evidence, The trial court ruled such whether proof on cross-examination negligence substantive or under impeachment purposes, was inadmissible defendant for attempt indicated 321.489, Code, 1962. The court section in a mis- would result plaintiffs to introduce such evidence appeal on this ruling presents the sole issue trial. This clarity we For verdicts. plaintiffs judgment from on adverse plaintiff. will them refer to as of a conviction
I. The
is that the record
general rule
evi
prosecution is not admissible
acquittal
or
in a criminal
on
truth of the facts
to-
the
dence
a civil action
establish
A.
261, 18
L.
A. L. R.
Annotations, 31
it was rendered.
which
1287;
335, 261
Johnston,
328,
220 Iowa
R.2d
In re Estate
893,
Carter, 225 Iowa
911,
citations;
v.
908,
N.W.
and
Bates
728,
895,
727,
281 N.W.
and citations.
894,
that the record
exception
to this rule is
However,
II.
in a
showing
plea of
is admissible
criminal case
the
arising
against the accused
out
subsequent civil action
1333
offense,
same
his
as
deliberate declaration or admission
20 Am. Jur., Evidence,
648;
interest.
Annotations,
section
31
R. 261,
1287;
L.
A.
A.
L. R.2d
Sturdivant,
18
Root v.
70 Iowa
802;
29
55,
Griffith,
N.W.
Hauser
In Crawford v. 91 205; Iowa 60 N.W. Jones Cooper, v. 65 735, Iowa 1000, Philleo, N.W. Swan point Iowa N.W. we out the evidence of a is but proof admissible not conclusive in the civil action.
III. purpose for which admissions are taken as thus stated in 31A S., Evidence, is C. J. section 273: ordinarily “Admissions original are or admissible as sub- stantive evidence the truth of or the made statements they existence of tendency establish, facts which have a admissibility and their dependent any tendency on they person course, discredit the were where whom made. Of party testifies, has who made the admissions and the admis- contradictory to, with, are or testimony, sions inconsistent competent purpose admissions discrediting are him, although they impeaching be limited to the should not purpose of discrediting.”
Speaking prior statement, say inconsistent we in Olson Hodges, Iowa 612, 684: “Appellant assigned court, error instructing because the upon signed to, statement of appellee, heretofore referred jury only told that it bearing upon could considered as credibility of appellee as and not proving a witness duly excepted substantive fact. The instruction was to. *4 generally any This admitted statement without restriction was consideration, appellee’s objection to over it as its that was incompetent. unduly improperly The instruction and limited by jury. .of It proper statement consideration appellee’s jury only bearing to consider it not in its upon for the credibility testimony, witness, with his as a because inconsistent signature it a deliberate statement over his own but since was merely testimony discrediting not as it was admissible appellee, jury, if the but as statement believed
1334 upon the bearing and against him as evidence substantive claim.” of his whole worthiness 639, 491, N.E. Sullivan, 486, 130 St. 200 Ohio Freas 641, states: driving, of reckless to
“Freas’ question, in predicated upon the collision was admissible being question of directly his upon It reflected two reasons: for negligent, denied he was and, answer he negligence, upon credibility.” reflect likewise would general principles prior to the enact With these IV. 321.489, what is now section defendant ment 1937 of Code seriously disagree. contention, His which the trial court does any record or accepted, section 321.489 bars the use is that against guilty as declarations or admissions evidence interest. provides: “Record inadmissible a civil 321.489
Section any person viola- record of the conviction No action. chapter be admissible as tion this shall action.” civil existing change the argues section does not Plaintiff this passage reason its was due maintains the law. He common general permit rule tendency to abandon the to a modern eases. The annota- evidence of convictions civil records and page tendency. 1289 observes such a in A. L. R.2d at tion squarely 321.489 we have not passage of section Since the strongly We here. have however presented issue decided the interest the rule of admissions indicated (cid:127) remains un- involving the same accident an offense guilty to changed. 181, 726, without Alden, 239 Iowa 30 N.W.2d Tuthill to the objection by defendant, a notation of a driving by was received con- defendant
charge of careless Heaverlo, In Tucker v. Iowa sidered. pleaded effect he had had made statement
defendant page driving. page Iowa, At guilty to reckless say: guilty may “A admissible as an N.W.2d, we Blashfield, Cyclopedia Automobile against interest. admission
1335 Practice, Edition, Law and 1954 9C, 6196, Volume section page 310.”
In Beyer, 52, Mathews v. 254 Iowa 116 477, N.W.2d by admission defendant at the time he was informed a criminal charge against only him that his a taillight violation was bad permitted as evidence by him. dissent two mem- court agreed bers the with defendant’s contention the evidence by was barred section 321.489. jurisdictions having
Authorities other or from the same similar question statute as section 321.489 on are divided the presented. agree here All or seem to a record of conviction acquittal is inadmissible. con- Michigan provides: statute “No evidence the person any
viction chapter violation of this or of pertaining local ordinance to of motor vehicles shall the use be admissible in court in civil action.” 398, v. A. Contracting Co., Elliott J. Smith 358 Mich. N.W.2d holds a record of statute conviction is barred and points out holding. the reasons for the very
However, the recent Diamond Holstein, case of 896, 897, Mich. where defendant admitted he had entered a a charge driving to of unsafe justice peace accident, before a in connection with the says: “As for in the ease, criminal could negligence, be considered as and it was received jury consideration, into evidence and was before the such * * but it Michigan was not conclusive thereof ®.” The applies holds, admissions, common-law rule and effect as to the statute not change did the law.
The Arkansas statute is identical our 321.489. with section 744, 747, Garver Utyesonich, 235 Ark. 356 S.W.2d deputy municipal holds clerk of a stat- court was barred identify testify ute showing from the court docket defend- attorney ant’s had entered of failure to a yield right-of-way. However, qualified holding testify statement: “This witness did that she present in court and heard the entered.” Campbell (1962), 492, 493, Harbor v. 235 Ark. *6 plaintiff injuries 758, 759,
S.W.2d sued for received when defendant, operating a vehicle, plain- motor hit rear end of the ear. trial tiff’s The court refused to receive copy a certified municipal of the paid records to show defendant had yield fine for right-of-way accident, failure to in the same citing Utyesonich case. The trial court also refused to allow plaintiff to ask defendant on pleaded if cross-examination he had guilty charge. plaintiff’s said appeal to On the Arkansas court reversed the trial court for plaintiff its refusal to to allow question defendant on cross-examination plea guilty, about his of and said:
“The plea trial court refused this evidence guilty; of ruling and such error. A plea guilty of for traffic violation for the identical mishap certainly against traffic is a declaration interest; guilty and such of as admissible as other against declaration In Covington interest other case. Fay Co., Little Oil Ark. said: S.W.2d we party, ‘It is to a well settled that statements made interest, bearing competent suit his on material facts are original testimony.’ Appellants appellee damages, as sued alleging appellee guilty negligence. had been of six acts One ‘failing proper control’, of these was to have his ear under ‘failing ordinary existing under another was to exercise care yield to Appellee’s guilty ‘failure to' circumstances’. evidentiary right-of-way’ alleged had clear on the value negligence.” acts of
The identical with section 321.489. Minnesota statute is Marsh, 215 Minn. Warren v. N.W.2d conflicts with holdings Michigan although of the courts Arkansas guilty charge failing to Warren’s was to a drive on right pleaded half of the road and he was asked if he had his driving. to a of careless justice peace day of the
In the Warren ease a seriously injured and rendered accident which Warren was bedside, without went to his took unconscious procedure fine. assessed a small Such benefit of counsel and to may this have contributed the sense fairness and shocks statute. construction of the an erroneous what we believe is We have no such record here. The Minnesota court holds the prohibiting statute the admission a civil action of the record of conviction of a traffic violation excludes evi- guilt finding dence of an well as after oral trial. to This more into than we able find. reads the statute are of, taking,
Although, sight purpose sometimes lost evidence in court is ascertain the truth. relevance and materiality testimony open question here is doubt. It proper is clear the evidence would be if it were not section 321.489. The not in it and statute does terms exclude it proper enlarge is not our function to construction so as to render inadmissible evidence that would otherwise proper.
In particular holding this that happens case is favor- our plaintiff. able to holding may a favorable another case the to a pleaded guilty defendant sued one who had to a traffic violation. voluntary plea guilty
We hold defendant’s of admission proof which should received as have been substantive negligence of and also for impeachment. Although
Y. apparently not considered the trial court guilty also defendant contends of his of the evidence was barred provides: Code section 321.490. It “Conviction nqt credibility. person upon affect The conviction a a violating any provision chapter or other this regulation felony traffic impair less than a shall not or affect the credibility any person such a witness in civil or proceeding.” criminal impressed
We are not with this contention. 321.490 Section to any attempt impair relates credibility witness because of prior convictions of law no traffic violations. It way changes applicable admissibility law as to declara- against tions impeachment by or admissions show- interest or ing prior inconsistent statements. ruling Both cases are the trial court is reversed.
remanded for retrial. —Reversed and remanded. Snell, except Hats, J., sitting,
All concur Justices J., who dissents. holding in respectfully from the J. I dissent
Snell, opinion. quarrel I with Divisions Division IV of the have no III I, II, and V. against interest is
That a is an admission statute, except for evidence relative such, admitted. As subsequent Ample thereto would action. be admissible a civil authority, prior including pronouncements our to the own Iowa, is 321.489, enactment of section Code of so hold. That question not the before us. If such evidence is now inadmissible it is because of the statute.
I would hold that such is now inadmissible because my opinion provides. the statute so 321.489, provides: Section Iowa, Code of “No any person record of the conviction of violation chapter of this shall be evidence in admissible as civil action.” This statute erected a bar the use of evidence prior that thereto was admissible. is say
To now the record itself that under the statute part inadmissible, but that entered as strained, and destruc- admissible, places record unnatural interpretation tive construction and on the statute.
No one contends that the record of a conviction entered guiity after a of not would be admissible. integral part something separate is an of the record. It is not very thing or the record. proscribed distinct outside It is the *8 by the statute. legislature purpose enacting must have had some prevent purpose clear, pro-
statute. To me that i. e. to ceedings influencing in a the result criminal action from impact. civil action its coercive emasculates, my majority opinion holding practical repeals the intent, and, purposes, violates for all statute. violation will person charged with minor traffic some plea of fear a stand trial for plead
forced to him in a civil action. will be used later 477, cited Beyer, 254 Iowa Mathews v. majority, require does not holding reached the case expressed but opinion at bar the fear dissenting has now been realized. As said that dissent I would construe the greater as having perimeter statute than majority does the opinion.
Chicago, Rock Company, Island Pacific Railroad appel-
lant, County, Warren appellee.
No. 51393. (Reported 457) in 131 N.W.2d 1964.
November Gamble, Read, Riepe, Webster, Martin of Des Moines, & appellant.
Herrick, Langdon, & Sandblom Belin and James A. Lor- all entzen, Moines, appellee. of Des Appellant alleges one of its trains was struck Per Curiam