*1 599 Schermer, Philadelphia, Pa. S. Charles ESCHELBACH, George Plaintiff- Pa., W. (Donald Philadelphia, Taggart, R. Appellant, brief), appellant. for Devine, Jr., Camden, Peter J. N. J. CO., Inc., SCULL WILLIAM S. (Michael Kisselman, King, De- Patrick Defendant-Appellee. vine, Deighan Montano, Camden, N. No. 13575. J., defendant-appellee. brief), for GOODRICH, Before McLAUGHLIN Appeals United States Court Judges. KALODNER, Third Circuit. Circuit Argued June 1981. Judge. McLAUGHLIN, Circuit Aug. Decided personal injury This action arises out Rehearing Sept. Denied of a collision of It re- two automobiles. sulted in a for the defend- verdict
ant. argues three Plaintiff driver First,
points he contends for reversal. seriously erred the trial court allowing probe the extent the defense beverage during of his alcoholic period. the relevant Saturday night, occurred 9, 1957, Plaintiff 9:30. November about View on the had been down at Ocean change, “for a south New shore day. for recreation” since P.M. 7:30 to 7:45 He left there around Langhorne, Pennsylvania. home approximately headed north on He was Weymouth Road the Black Horse toward the accident was Pike. location of Mays Landing beyond two miles from in turn 30 miles which According plaintiff, Ocean View. area, the collision the road was about straight away, wide, 40 feet little top crown it. The black the road with 12 around feet wide feet gravel pavement or shoulders each dry night. It was clear side it. passenger He said his traveling automobile was hour; an about 30 miles coming truck he saw defendant’s speed of him an towards miles road; its own hour on side when away from 10 to 12 feet directly into a left turn made ma- was then about foot or chine part of the road the black off road; gravel on his side truck fender of the struck his stopped front; that he had his car *2 600 traveling immediately prior acci- prior not that was collision and “Approxi- dent?” His answer to it was time. motion at that mately per denied he 45 hour.” He miles the de- Michel, John the driver had interrogatory another said He was shown that. operating the was fendant said he separate set which of a Wey- southerly on direction truck a respective speeds him asked “State Road, mouth he saw the impact.” the vehicles at the city headlights ahead blocks “Plaintiff Plaintiff’s to that was answer they to be of him and seemed approximately 45 miles hour and 40 to an road; that he went truck’s side speed unknown.” He said defendant’s could, he as far as over to his did he not this. He was asked lights “but horn and blew blinked his “ * * * version, the correct coming kept He had slowed at me.” he you gave Septem- what ber, us under oath in practically stop. down to a When (the to inter- answers above front or so in 20 feet tiff’s car was giving rogatories) or what are us going him, hit “knew he was Michel * * today oath *?” He an- “ * ** left he swerved me” so “Today’s”. swered He said he under- * * get way *.” and tried to out of Weymouth speed stood the Road limit on hit car itself swerved The other to be 50 miles an hour.1 got Michel there.” over truck “before “ * * * Mays Landing, plaintiff stopped At to me that Eschelbach stated drinking.” he described as “A restaurant. he had been like
he looked
passenger
tap-
if
Harry
would call it a
know
was
Rambo
any
room or
like
what.” He did
looked
not have
said that “it
truck. He
lights
making
off the
turn
a left
food
there. He said that
was
they
half,
highway
towards
came
and then
an hour
or an hour
generally
something
corroborated
had
us.” And he
and that he
like that
during
“two
evidence.
beers”
that time.
Michel’s
asked,
He was
“Did those beers
Trooper
was at
Olsen
any
effect on
at all?” The answer
shortly after
collision
the scene
“No”.
was
was next referred to
He
plaintiff then
He
talked
event.
pretrial deposition
and asked “Did
hospital. He
little later
me that
that occasion tell
drank
(plain-
asked him
“I had
testified
ques-
an afternoon?”
30 beers over
tiff)
and he said
if he was
objected to,
proper
allowed as
tion was
know how much.”
not
but he did
he had
and the answer was
cross-examination
trooper
from
found
following ques-
Then came
“Yes”.
number one vehicle
marks that the
skid
tions and answers:
swerving
left
(truck)
towards
was
colli-
a head-on
road
avoid
side
And did
minute,
num-
which,
last
at the
sion
on the afternoon before
beers
(plaintiff’s)
swerved
happening
two vehicle
this
ber
of
talking
accident? A.
met head-
side and
towards
I am
about the time
No.
no reason to disbe-
on,
was
now there
home.
that was
addi-
statement and
Mr. Michel’s
lieve
tionally
“Q. Well,
is that
answer
had the skid
scene we
you did not have these 30 beers?
marks.”
right.
A. That
is, on the afternoon
cross-examination, plaintiff
That
On
happening
preceding
interrogatory
ac-
this
addressed
an
shown
A. That
speed
cident?
reading,
vehicle
“What
subsequent
impressive
developer!
fracture Ms
us and
fore
Cross-examination
leg
injury testimony
liurt
wMcb was also
in the col-
plaintiffs
gaps
in con
injury
involved here.
lision
a serious accident
nection
hip
be-
to the accident
Ms left
your-
say you restricted
Kelly’s?
or addicted to
occasions
self to two beers
intoxicating liquors
use
and endeavor
Yes, sir.
ing to
intox
infer therefrom
he was
during
pe-
*3
And that
icated at the
accident.2
time
half?
and
an hour
riod
about
directly
was to
at the center
strike
A. Yes.
plaintiff’s
credibility.
claim-—his
“Q.
right,
recol-
All
and to
story
proceeding
His
was that after
lection,
say,
two
you
those
not more than 25
30 miles after leav-
you
whatso-
beers had no effect
ing
View,
stopped
Ocean
his
at what
ever? A. That is
attorney
“tap
room”.
characterized as
you
“Q.
when
On the occasion
doing
attempted explanation
His
for so
beer,
glasses
did
consumed 30
appears
quoted question
in the above
you,
any
Mr.
effect on
have
attorney
his
and his answer thereto:
Eschelbach? A. No.”
why you stopped
“Was that
at
answered,
the last
After
had
been
Kelly’s
Well,
drink? A.
have a
objected
as “ir-
above
room.”
went
the men’s
incompetent”.
relevant,
immaterial
there
On redirect examination
In the
admis-
circumstances his
following
questions
an-
sequence
sion that
in the course of an afternoon
thirty
customarily
swers :
at home he
drank
glasses
according
beer
you
Eschelbach,
were
Mr.
any
did not affect him
than did
more
stay
Kel-
questioned
give
consumption
two,
help
his
did
ly’s Taproom.
Yes.
A.
jury
together
assistance,
some
Mays
“Q. Which,
believe,
is in
testimony
and all the other
his
Landing.
Yes.
A.
trial,
to, (as
was said
many
“Q. Now,
beers did
how
judge
charge):
Two,
you actually
there? A.
have
“ * * * determine the facts
far as
remember.
(conceive?)
from what
concede
‘Two,’
you say
do
And when
taking
testimony
is the believable
Well,
glasses?
A.
mean
probabilities
into consideration the
glasses.
and the attitudes of the various wit-
"Q.
A. No.
Not bottles?
* * *
nesses.
you anything
else
Had
weighing
“In
No,
Kelly’s? A.
sir.
drink
to examine into the
have the
why you stopped
“Q. Was that
credibility
witnesses,
of the various
Kelly’s,
a drink? A.
to have
doing, you may
and in so
take into
Well,
room.
into the men’s
I went
their
consideration
demeanor
any
“Q.-
food
Did
stand, their
in the
witness
interest
No, I
remember
there?
vagaries
case,
outcome of
night.
eating that
attempts
human mind
its
matters,
opportuni-
past
influ-
Were
to see and
of witnesses
hear
that drink when
ties
ence
may
place,
taken
automobile? After
operating
making particu-
Kelly’s
No,
leaving
of their
Tavern? A.
likelihood
recalling
note,
particular
lar
de-
no, sir.”
accept
then
tails.
argument
on his first
Appellant’s
reject
credible,
incredible.”
misinterpretation
upon
based
theory
particular
net result of
that the
We
behind
de
main
testimony was
referred to
harmful
The latter was
tiff’s
cross-examination.
fense
Co.,
A. 1901,
Shelly
A. 562.
65 N.J.L.
E.
v. Brunswick Traction
2. See
my
prescribed
pay
penalty
cause;
most of
on redirect
all.
However,
offense.
true source
harm had its
by plaintiff
conveyed
impression
telling
he was
as to whether
(Defendant’s Name)
instances.
the truth in
narrated
undoubtedly af-
jury conclusion on that
(Address)
concerning plaintiff’s ver-
its
fected
view
happened. The
sion of how
No.)”
(Driver’s License
the cross-
court’s
to emasculate
refusal
thoroughly justified
following
examination of this
cross-
record Shows
probe
concerning
*4
the
examination of
ruling
upheld.
is
sound
and
“care-
to summons
above referred
for
driving” given him
State
less
the
urged for
proposition
The second
Trooper:
is that
appellant
captioned
his brief
in
Eschelbach, I show
Mr.
Judge Committed
Trial
“The Learned
Municipal
has
Court summons which
Admitting into Evidence
Error in
Fatal
D-3 for iden-
been marked Exhibit
Summons, Which
the Traffic
Plaintiff
tification,
I
the
and
reverse
show
Magistrate’s
Signed
into the
and Mailed
appears
on
the lan-
side which there
sup
(Emphasis
Fine.”
with the
Office
undersigned-’
guage T, the
plied.)
I
No, no.
“The Court:
statutory “care-
for
The summons was
necessary
to read that.
think
is
specification of
driving”,
which
the
less
right,
“Mr.
All
sir.
Devine:
driving”.
date
It fixed a
“indifferent
side,
I show
reverse
hearing
charge
before
on
you,
I
Mr.
and
out to
Eschel-
Landing.
Mays
Magistrate
warned
bach,
appears
re-
on the
that there
license would
driver’s
that
signature George W.
verse side the
appear as di-
failure to
be
for
revoked
name,
your
That
Eschelbach.
is
rected.
Yes.
isn’t it? A.
requirement of
In accordance
that
And underneath
there
12, New Jer-
Form
Criminal Court
Local
Rt.-3,
appears '117
Avenue
Trevose
1953,
9,
sey
September
Rules
Court
your
Langhorne, Pa.’
ad-
That was
time,
summons con-
in
effect
That
dress? A.
following:
tained
immediately under
And
that
appears
num-
there
a driver’s license
“Appearance, Plea Waiver
and
youDo
ber 1939922.
that was
hereby
undersigned,
“I,
do
your
license number
1957? A.
my appearance on the com-
enter
Oh, I
remember
could not
that.
charged on the
plaint
the offense
good.
“Q. Very
Now,
Mr. Eseh-
this summons.
side of
my
elbach, I
of a
want
to look at that
informed
been
trial,
signature
signature,
my
and I
want
to look at
this
that
signature
guilty
appears
will
plea of
same
interrogatories
judgment
answers to
effect as a
dated
and
force
court,
September
will
ask
and that this record
signature
appearing
of the Division
to look at
the Director
sent
surgeons’
permission slip
of New
Motor Vehicles
bearing
my
11,1957,
date November
(or
where received
drive).
sig-
hereby
not a
I do
me
fact
tell
license
Guilty
appearing
said
nature
summons is
offense
Plead
signature?
my
charged,
like
looks
Waive
yes.”
Hearing
it,
court, endanger,
person
property,
evi-
admitted
summons
light
driving.”
throwing
guilty of
shall be
careless
purpose of
for the
dence
by his
question whether
driving”
term
exact
“careless
charge of
guilty
pleaded
own action
named
and defined
the law is
surrounding
driving
the circum-
careless
In addi-
offense set out
the summons.
to test
of this
stances
tion,
statutory form
as called for
point.
court
summons,
of
ing”
the kind of “careless driv-
jury
the decision
specified
i. e.
driv-
“inattentive
any in
if
plaintiff’s action
reference to
ing”.
Joas,
State v.
34 N.J.
it was
ticket
traffic
connection
By
named offense
rule
had violated
that he
indicated
specification
it,
and the
it was
under
Con-
Act.
or of the Traffic
road
charged
appellant
operating
while
charged
correctly
tinuing
court
his automobile at the
time and
Jersey law
accordance
give
the accident did not
the attention
**
found
that if it
driving
necessary
which was
a rule
violated
defendant
tiff or the
endanger
so as
the circumstances
persons
not to
stand-
or of the Traffic Act
the road
guilty
*5
property.
plea
or
of
ing
itself,
neces-
not
alone, and of
does
by appellant to the traffic offense of care-
negli-
guilty
sarily
is
of
that he
mean
driving
properly
less
was
received
gence
contributory negligence. How-
or
evidence in this civil action which arose
may
be
to
ever,
a circumstance
be
out of the
facts
same
and circumstances.
by you in de-
into consideration
taken
Liberatori v. Yellow
phia, App.Div.1955,
of Philadel-
Cab Co.
termining
of
or
not under
whether
N.J.Super. 470,
developed
the
as
circumstances
the
469;
Wiley
114 A.2d
Mead v.
Methodist
plaintiff
or the de-
the
entire
Church,
Episcopal
App.Div.1952, 23 N.J.
question
place in
the time and
fendant
9,
Super. 342, 93 A.2d
the reasonable care
exercised
facing
The fundamental
situation
required
the
to exercise.”
law
plaintiff
guilty
plea
under which the
of
361-362,
1949,
358,
Lahn,
1 N.J.
Jones v.
was entered manifest on
of
is
the face
804;
Burke, E.
Kolankiewiz v.
Appellant,
summons itself.
the
249;
567,
103 A.
&
91 N.J.L.
did not wish
trial
because he
to have a
Co.,
Belperche
Erie R.
E. & A.
v.
personally appear
or had no defense
81,
icated at the time upon The authorities relied proof intoxica-
defendant relate to event.
tion at time of the general upon sub- has been said ject impeachment that
of testimonial general intemperance tells
‘a habit of nothing testimo-
us witness’ incapacity except indicates
nial as it time
actual intoxication time
the event observed
testifying; hence, since in its bearing upon does moral character veracity-trait
not involve the ususally be admissible.’
it will ed.) (3rd (3 Wigmore on Evidence sup- 481).” (Emphasis p.
§
plied.) majority concedes
Since prejudicial
mooted it, plaintiff, its admission and as view judgment error, below was clear cause re- reversed and the should be grant instructions to a new
manded with
trial. *7 Warden, WIMAN, Kilby
Martin J. Prison al., Appellants, et Appellee. POWELL, K.
William
No. 18987. Appeals Court of States
United Fifth Circuit.
July
Rehearings Sept. Denied