J. B. Dunham and Minnie Pearl Dunham, Individually, and J. B. Dunham, as Next Friend and Natural Guardian of Connie Dunham, a Minor v. B. H. Pannell
263 F.2d 725
5th Cir.
1959
Check Treatment

*1 725 U.S. risdiction cise their and Bac. duty eral courts cases, L.Ed. 782 supra, cited. [793], 796, Dick, supra, imposed exercise of 443, to do so. In re Ex to confine 318 U.S. It S.Ct. Ab., parte 462, authority when it (citing is evident has Certiorari); parties L.Ed. 17 S.Ct. [584] compel 202 U.S. been, their [Republic [578] inferior Tidd’s Chetwood, 587, prescribed them 385, appropriate Prac. [132] of] courts 50 L.Ed. are hardship Whitney 63 S.Ct. 392, Peru, *398, cases exer their com 139- ju plication considerations ment trial on Rolph best be these the untried cases will indeed1 edly ground essary stantial decision as chances of reversal in Knox on invoked might cases. suits and Girton than present hardship if weighed which would enough Anderson, to the by Rolph not work These considerations time. Whether which to warrant Knox, same and resolved proper whether greater hardship and Girton affect novel must is forced would time for delay, even whether theory underly the outcome the facts of by require ap- immediate postpone- are sub- are trying alleg- Dis- can on pelled feel, short, anof the correction trict Court. We to await interlocutory Congressional policy piecemeal error at stage judg appeals by appeal except prescribed procedures a final hardship But does dictates that request ment. such Anderson’s decision necessarily justify delay certio resort to must suffice. extraordinary rari or other of the petition The for mandamus denied. * * * writs aas means of review. as a sub writs be used appeal; stitute an authorized statutory where, here, permits appellate

scheme review of appeal interlocutory orders judgment,

from the final review extraordinary

certiorari or other permissible in the writ face J. B. DUNHAM and Minnie Pearl Dun legis plain indication of the ham, Individually, Dunham, and J. B. piecemeal guardian lative avoid re as Next friend and natural Dunham, minor, Appel Connie views.” Alkali Ex States United lants, States, port United 325 U.S. Ass’n v. 196, 202, 89 L. S.Ct. Ed. 1554. al., Appellees. B. H. PANNELL et No. 17278. petition

The instant fails dis compel close circumstances would Appeals United States Court of power supervisory exercise of our Fifth Circuit. District mandamus. decisions of the Feb. calendaring Rolph Court in and Gir clearly type seem ton cases for trial rulings interlocutory which should not merely be reviewed this Court might petitioner incur cause the unnee- September 1292(b), litigation,” § 28 U.S.C. enacted mate termination 2, 1958, providing appeals abrogated statutory for immediate modified but not interlocutory significant which, from certain orders It seems scheme. § opinion judge, 1292(b) requires preliminary in in the district controlling question utility “a of law as volve termination im- ground which there is substantial mediate review bo made the district opinion,” ap judge. difference when “may materially peal advance the ulti- *2 Banner, Banner, Jack & G. Kouri Falls, Tex., appellants.

Wichita Fillmore, Clyde Falls, Tex., Wichita appellees. HUTCHESON, Judge,

Before Chief WISDOM, RIVES and and Judges. Circuit Judge. appeared WISDOM, Corporation later Gossett Circuit deputy Court and told clerks one of the appeal principal rais- question this pay that wished He the ticket. pay- evidentiary effect es concerns the *3 twenty of a fine the and dollars entering ing a traffic ticket and corporation carrying court docket sheet pro- guilty in traffic of charge: a statement wide “made ceedings. disposition of proof Is driving too docket fast”. The turn — admissible, im- for a traffic summons following printed sheet contained the damage suit peachment purposes, in a signa- notation to which he attached his in the traf- the same acts recited based on ture: “I understand the nature of charge, inter- fic as an charge against plead me and to wish the defendant ? witness for est of a guilty, therefore I direct the Clerk I. my plea guilty enter the Cor- before day September, Minnie Judge.” poration One Corporation Court The daughter, husband, Dunham, and her Court in session at time was family in downtown car attorney were in appear- neither Gossett nor his driz- Falls, was a any Texas. There judge Wichita ed before guilty enter driv- zling was Minnie Dunham rain. in the formal term sense ing. According plaintiffs-appel- “plea”. parties stipulated The that no light at lants, stopped charge for a traffic “complaint”, is, she “formal light turn- writing As the complaining an intersection. sworn to (truck large ing amber, van-type truck officer”, was made Gossett. refrigerator approach- trailer) was and ing The Dunhams filed B. H. suit driver When intersection. Pannell. Gossett was co-de- named as light Gossett, truck, Junior saw fendant, to in but not referred he was up changing, speeded his truck he prayer is not relief and right travel- He was wide turn. made a to the cause of action. He corner. too fast to make the cross-examining Gossett, plaintiffs’ brakes, late. too jammed on the attorney guilty pleaded asked if had he slid, jackknifed, and trailer Truck charge driving too truck width of the entire skidded across great attorney speed. Defendant’s violently street, into the and rammed objected, stating that he intended “to automobile. Dunham ask the not to Court instruct Pannell, the H. for B. drives Gossett any purpose consider it whatsoever”. for barred According Gossett, was he defendant. judge questions on the sub- The lane, turning right, proper on ruling. ject but at that deferred time green light, car, when the Dunham heard, judge The trial then out of the wrong street, pulled front side argument jury, presence evi- him, center line well over the re- written motion dence questing defendant’s street, make a left and started to “to counsel the Court wrong Confronted turn from lane. representing to refrain emergency no fault with an that was any attempting to introduce his, that he did best he claims purported plea with reference could to avoid collision. guilty”. trial that the The held up police Falls showed officers “directed Wichita motion was “well taken” and promptly attorney] pursue [plaintiffs’ at the of the accident. fur- scene not to They inquiry traffic ticket to Gossett issued a ther on cross-examination driving right making subject purported plea a “wide turn of a about days guilty Four too fast under conditions”. the witness”.1 following by plaintiffs’ trial dictated the counsel to the witness entry asking the record: “Let record Gossett whether the witness adjourned charge that after show entered a following yesterday ques- great driving speed afternoon the truck at too credibility re- II. turns The case Did spectively Dunham. of Gossett Proof criminal conviction right turn? wide a make too Gossett of not after a and a drizzling ? rain fast in a too he drive Did usually the defend center across the car Dunham Was the proceedings subsequent ant civil jury returned line of the street? judg which the facts and, general the defendant verdict But ment is based.2 evi conviction answering issues, special held legal plea dence of a “acting Gossett, under driver, truck generally admissible *4 immediately the emergency before litigation in civil as an admission con- care accident”, exercised reasonable 3 principle applicable to interest. This emergency, “the and the sistent litigation arising acc of automobile out proximate cause emergency the sole reluctance, There idents.4 is a natural appealed. however, plea The Dunhams of collision”. the to admit evidence of of guilty charge,5 trial. new traffic and when to a and remand for a We reverse question, charge, tendency place then inal [is] in current “the the time at admitting this resumed toward evidence of convic- of the case when the Griffis, Disposition plaintiffs’ morning tion.” and defend- of counsel Evidence Subsequent bench of Related in were called to the Criminal Case ant’s counsel Damage Suit, plaintiffs’ directed Ins.Couns.J. 480 counsel was 25 (1958). pursue cf. the ALI cross-examination Rule 521 of Model further subject pur- 62(20) inquiry any of the of Code Evidence and Rule of about guilty plea by ported Let witness. the Uniform of of Rules Evidence. yesterday also show that record plea guilty “But a criminal trial, very morning of the at the outset pres- charge of in conduct material respective counsel were called case comes ent in motion with the in connection bench McCormick, an admission.” Evidence filed defendant had been which (1954) p. 618. See: Interstate Securi- plain- requesting the Court States, Cir., 1945, ties v. United 10 attempting refrain from counsel to tiffs’ 224; Wainer, 151 F.2d United States v. with reference introduce evidence 669; Cir., 1954, Levelle v. purported to a Powers, Cir., 1957, (an 248 F.2d 774 part witness in the Cor- Gossett case). Griffis, automobile See Evidence Falls, Texas, poration of Wichita Court Disposition of Related Criminal Case in then were informed and counsel Subsequent Damage Suit, in 25 Ins. judgment Court, motion (1958). Couns.J. 480 in event was well taken hearing during reached matter 4. “Evidence case, the matter would be charge arising out of an criminal auto- regard in the Court heard generally mobile accident is admissible in presence and out of the circumstances litigation concerning the civil same ac- jury.” Blashfield, Cyclopedia of cident.” Auto- Law, Sec. 6196. See 17 mobile Tex.Jur. * * * personal 2. “When a suit Leach, Tex.Civ.App., and Fisher v. 575 1949, injuries offers the defend err. ref. NRE. driving ant’s conviction reckless cases are collected in occasion, majority same pages 1307-1310. A.L.R.2d They excluded courts have the evidence. opin negligent operation involving banned such have evidence mere 5. “Actions argument and have invoked the ion automobiles are another field in reciprocity, namely, person pros attempts frequent that the are made to intro- acquitted, prior could not if he ecuted had been duce convic- acquittal used the same acts. tions Because of perfunctory McCormick, case.” often nature the civil Evidence proceedings cases, p. 618; (1954), in such ‘criminal’ A.L.R.2d Judgment Hinton, of the fact such convic- because Conviction: Effect frequently uncontested, ap- Case, are tions Civil Ill.L.Rev. 195. especial- pears however, cases, should be a recent review of the ly to admit such evidence reluctant author finds even where the proceedings.” 18 A.L.R. is to “establish these the truth of the admissibility pleas necessarily “[T]he facts involved” in erim- conclusive; jury, undisputed appel- it is evidence is admitted explain may lee violator mailed check for fine in guilty.6 plea of amount shown on his notice to the Corporation Court, and that never problem A arises when appeared per- in such court either plea of conviction is on a defective based by attorney required by son or guilty. Article Code Crim- 518 of Article Ann.Code of Vernon’s Ann., Texas, Vernon’s inal Procedure of Criminal Procedure. provides: being guil- “There no valid a misdemean- “A ty excluding the court did not err may by the or case made either proffered refusing record nor open defendant counsel or his permit regarding court. In such prosecution to be heard jury, may or waive his counsel jury.” punishment be assessed Mooneyhan In view upon v. Bene court, the evidence, without either dict, the *5 disposition evidence the discretion of the of Gossett’s traffic ticket was inadmissi court.” ble, legal plea guilty, as a prove of Benedict, Mooneyhan Tex.Civ.App., In v. judgment of conviction to establish 742, 1955, 741, writ.ref., on the truth of in facts recited the traf relied which the in charge. pass fic upon “We do not stant offered in evi- validity judgment Corpora of the copy a of the record of dence certified Court”, Mooney tion the court said in showing corporation that merely han. “We hold it inadmissible charged speed- defendant had ing, upon proper because not plea a based paid pleaded guilty, and his fine. guilty.”7 admit the record The Court refused to plea was not a evidence because the III. “legal plea guilty”. Court Texas The trial assumed that the evi- held: purposes. dence was inadmissible all takeWe a different view. here, however, “The that trouble is legal plea guilty. constantly happens “It no there was that a fact evidence, the absence heard in is for one is guilty loosely judgment might admitted, “[T]he and what be termed is not as a probably ‘quasi-pleas guilty’, establishing fact, is a but as a category from most the stand- declaration or admission vexatious inter average point lawyer. However, defense est the fact so. is * * * large percentage may testify a [I]n to the circum truly plea under cases finds awesome stances which the was made disregard explain consequences, plea.” future the reasons for such may assured, good Chappell, 1947, Ky. 788, have had a Race v. charge, may to the criminal but did S.W.2d 626. The fense money jury spend prove it, plea want that such a “is not con * * * pled guilty may explained. fine of clusive and be §2 [it] * * * pretty and recognised It toell is received costs. It as an admission jurisdictions Berens, 1956, in all that such interest”. Berlin plea guilty should S.D. he received in 80 N.W.2d part evidence as an admission on the Angelo Standard, 7. See Pridemore v. San * * * charged. ITor- iierson writ, Tex.Civ.App., ref., jurisdictions tunately, in most Mooneyhan. distinguished Griflis plea guilty is not con- that “the two writes cases can be rec- subsequent action, civil clusive only on the basis onciled the mere may explained party but be con- payment proved fact of alone be Griflis, Disposi- Evidence of cerned.” admission, regardless legal as an of Related Criminal Case Subse- guilty”. plea of quent Damage Suit, 25 Ins.Oouns.J. (1958). ** * purposes. other admissible for effect. Rule See 521 of Code the Model it does is not 63(20) inadmissible because Evidence and Rule [It] Uni- satisfy applicable to it the rules form Rules Evidence. capacity some other and because plea A is admissible- might improperly latter consider it in on a different basis. It is not to- offered though capacity. doctrine, involv- This prove prove a conviction toor facts- risks, indispensable as certain charge, recited prove but to Thus, practical rule.”8 in Johnson offender, necessarily defend Cir., Machinery Empire Company, 5 suit, ant in the civil admitted facts. involving A offered in evidence accident, defendant’s automobile weight, another trial should be accorded driver, who was not named as regardless therefore, its ineffective following defendant, paid too “for fine guilty, ness as a formal closely”. This Court held extent con the offender would not ad- of his the fine prejudiced sider that would principal, missible likely admission and hence to be deterred “clearly purpose of making from may it. fine some cases the impeaching” aas the defendant’s driver stigma slight small and so so after he he was witness testified that that a traffic court negligence.9 fault or We free badge of trustworthiness the case be- situation in similar a declaration interest. us, except fore somewhat fine, In other cases the stigma size of the stronger signed ad- because of Gossett’s may attach, *6 risk and the mission. increasing liability may one’s deter judgment When evidence of a importance rent factors of to sufficient usually suit, tags to is offered a civil it is case truthworthiness. In this prove, prove the fact of or to conviction on summons was the first mark bad against defendant, driver; truth of as record as a a Gossett’s so rare might regard charge implicit person crim- facts a judgment which the twenty inal not untrivial. The fine of dollars judgment may The have come based. for a truck small driver. Gossett fine; just of not a trial lead- after a did not mail the amount guilt beyond signed say rea- appeared to a verdict of he ing statement doubt, may or it have come after sonable that he the nature “understood] legal guilty. judgments, charge against Both wish[ed] [him] and carry provable case, guilty”. suffi- plead when a civil to We consider that hearsay to payment value overcome their cient of these facts the face Wigmore purpose Cooper impeaching 8. 1 on Evidence 13. See also § for- the City McCormick, Evidence, 59; § Kansas for after he testified as a witness Railway Jones, 1916, Broadly speaking, Co. v. Southern his the defendant. 181, 943; testimony prove L.Ed. 241 U.S. 36 S.Ct. tended to was that he Davis, Sprinkle Cir., negligence. v. fault or The free plaintiff right 128 A.L.R. 1101. then had a- to cross-ex payment him as to his fine amine “Cooper was insisting jury defendant. on a trial. without employment parts as a His explanation or, might believed have his livery authority man. His bind might instead, it have inferred scope was limited to the his fine because he was free employment. days action, His causing several from fault collision. accident, paying after fine ‘for Compare Murray, Sherwood v. Tex.Civ. closely’ following too could not be in- App., 1950, 879, 882; Bush against admission troduced on Criminal Convictions as Evidence principal. Proceedings, See Liner v. United States 29 Miss.Law Journal Civil Torpedo Co., Tex.Com.App., (May 1958), 283.” Johnson Em Machinery pire Cir., Company, Annotation 18 A.L.R.2d 1312. The was, clearly however, F.2d right making signing con- he “a wide turn statement fine driving in- stituted, too fast under conditions”. not an admission have it would the defendant as terest of practice requir Good should have had been if a been plaintiffs’ attorney lay ed better entered, but predicate impeachment. than he did for credibility bearing Gos- on the terest plainly pur He should have stated therefore, fact, as witness. sett pose however, think, of the offer. We given to statement Gossett’s that the trial admitted should have statutory re- meet a clerk does not evidence, unequivocal the excluded after support a valid quirements needed to instructions that it be considered should nothing ad- its do with bearing credibility on Gossett’s impeachment purposes. missibility for and not as evidence defend alleged ant of the truth of the recognized facts force The Texas Court charge.10 In such some cases Mooneyhan Bene this distinction instruction thing It is be ineffective. rehearing, appel dict. In disregard cer vigorously lants contended quite tain effects of It is evidence. speeding fine thing jurors different obliterate admis anas admitted “should the effects from minds. will their There without interest and sion danger jury’s where be cases pro regard validity of the court incompe “recog misuse of the evidence for the ceeding”. The court said purpose great, tent and its value for of this contention nize the force [d] legitimate slight. ex ques a decision not consider [did] should, treme situations admission, if required, such since discretion, in the exercise of a reasonable be, [Tex.Civ. was cumulative”. exclude the evidence. App.1955, 284 744.] S.W.2d veracity entirely This case rests plain- In the us counsel case before veracity of of Junior Gossett and on the purpose in of- plain tiff fering not make did *7 the Dunhams. We feel that substantial Neverthe- the excluded evidence. justice requires for case remand this offered it was less context trial, decide new to allow a impeach was to that the evidence shows telling the whether Gossett was truth was witness. The evidence Gossett as telling or when he testified at the trial offered on cross-examination Gossett. accident, days truth four after the Then, just the first mention before twenty fine of dollars he his when summons, as had Gossett testified admitting statement speed skid- the truck and his speed. a turn at too fast a too wide made testimony mate- bears marks. Gossett’s unnecessary to con- The Court finds rially in the case: on the critical issues questions on this the other raised sider where, wide was Gos- was how which car appeal. turn, and how fast was Gossett sett’s for reversed and remanded The case is driving. on the His stand statements trial. a new directly admissions that contradict his plea chinery Co., Cir., 1958, an informal effect of 10. The against Torpedo Co., interest lim- is United States as a declaration Liner party making plea. Tex.Com.App., Gos- 519. The ef S.W.2d ited to plea guilty support Pannell, sett, driver had of a formal as a truck fect judgment may carry authority employer by by his valid be to bind no ed yond by any party making pleas court or statements its effect scope employ- prove beyond plea, of his and tends the civil actions therefore, admission, truth of the facts or im His ment. suit prin- clearly plicit admissible in the criminal action. See Note Empire cipal, Jla- Pannell. Johnson v. Judge HUTCHESON, (dissent- Chief interest of the as ing). indeed it would have been a formal if guilty, is understood un as that, I must confess considered cases,2 der the Texas statutes majority statement of believes what disagreement My entered him. ought be, opinion ex- law citation, authority continues with the convincing piece cellent and almost case, for the decision in this of our case argumentation, agreed and, with if I Empire Co., Johnson Machinery regard quasi-legislative I what their 479, holding F.2d that a view, tempted greatly I to as- should charge entered the driver myself masterpiece. sociate with their the car would not be admissible great Admonished, however, by the defendant, employer. ones,1 whose memories I revere support, Texas case cited in against yield cherish, precepts whose I States, Liner v. United voices, firmly I stand to such siren case, very was not a traffic and the much my ground it is. stand law as So decision, Leach, later Fisher v. note agree ing, what while I with some of supra expressly holds that where a for opinion, said I both dissent mal is entered the result from much that is said driver, is admissible approach to it. Further, owner. Texas case Sher general agreement with what Murray, wood v. cited my opinion, said in I and II of Secs. support holding the Johnson disagreement begins the statement with though that, receivable as Ill: the first sentence Sec. admission, because the not for “The trial assumed mally entered, evidence as to drivers all evidence was having paid a fine im could used purposes.” peachment, deference does not so stating, opinion in its In so assumed contrary, though hold. On the the case deference, what, support record of a fine support, refutes. does not indeed court, bond, of the forfeiture discussing question after Realizing saying more, admissi ex I bility conviction, evidence of a myself pose assum to the same stated, “However, myself saying we have ing, acquit found no au I hasten thority holding only point footnote one of such convic I need majority opinion, where the state for the of im disagree peaching My dictated into the witness”. *8 ment of the trial to, majority opinion what ment establish that record is out set re was in score culminates the court said with the statement and all ruling on, page at sponse to, the court on F.2d: “The 731 263 and was * * * get traf tempt fact to action Gossett’s Gossett’s given admission an statement to a clerk does meet evidence as fic into 1. law, when in consequences case to stract Court of Texas Said Justice “Whoever undertakes “To follow the dictates pleasure; which [*] system, solely by in their justice, harmony rules of [*] they may lead is a Roberts his own breaks down the true many years ago: thereby to follow the rules with the justice $ spirit, notions of to determine annihilates are erected law, must be [*] to whatever Supreme barriers justice, its ab- duty. $ law. lin, W.2d App., Daw S.W.2d * * * the Peace Fisher v. Condra, Tex., at p. 315 S.W.2d 384; Condra ” 741; page 253; Duncan § Mooneyhan Leach, Tex.Civ.App., Johnson notes 36 p. 1, Funeral Home v. Rol v. 51 Tex.Civ.App., note at v. Magette. C.J.S. Justices and 37. v. Woods, page 77; Benedict, and 52 25 Tex.Civ. Rollin C.J.S. Tex. S. needed to is statutory requirements consequences attribute action nothing to which support it not in does fact or in have. law valid impeach admissibility for do with its To Supreme show the attitude of the recog purposes. The Texas ment Court of Texas in this whole matter this distinction nized the force of using traffic tickets and Mooneyhan defer With Benedict”. traffic fines to influence a decision in ence, it did not this. do damage suit, quote I cite and Con- Bollin, dra Funeral Home v. ap- S.W.2d majority opinion, As shown in the 277, where the vigor- judg- court reversed a rehearing, pellants, on contended ment on a verdict because the mis- ously payment of persisting conduct of counsel in in in- speeding have the fine for “should quiring given whether a traffic ticket was against inter- admitted admission as an to the officer, a traffic est, regard va- and this without page saying: court at lidity proceeding.” No con- tention was made that “Presumptively, least, traffic impeachment, given are tickets violation of gave ruling court made no such penal ordinances statutes or and not would intimation it was or establishing for the fault litigation. been. in civil If it been es- given tablished that tickets were my view, authori- is It Texas based parties both or neither of the Mooneyhan ties, including collision, it would have been still not, asserted does S.W.2d which duty separate- answer support majority, rule for ly preponderance each issue from a contrary, that they which contend but of the evidence.” Texas, having place taken its right Finally, effect, majority if the give minority which of the states holding plaintiff that if the had made the against interest, to a as an admission for- objection good, it I would have been by a entered in a case mal disagree vigorously dissent from the regarded driver, must or fendant ruling puts which district accepting of those states the view purported ruling error he did plea, admission of an when it is formal point pre- not make on a which was not agent car or his the owner of the sented ing. him the rul- for a reject- against interest and as altogether of, inquiry offer I dissent from runs coun- because calculated, about, plea because a defective practice ter to rule and under the evidence, permitted ef- to have the if decision, uniform course though weight admission, fect offer of makes an evidence which when short, is not one. law and fact it generally made and without limitation how a I can while see required, if it is admissi- given case can purpose, a limited ble for state *9 generally accorded anof effect If, likely purpose. which does seem I in a criminal to a nothing said about since he it on argue fully agree those who trial, plaintiff offering lim- impeachment, Journal ar- can- in the Insurance ited does Griffis judge, error if ab- in the majority opinion, claim in the cited ticle stating purpose, of his sus- sence practice invest, normal and usual objection. tains settling summons out court a consequences court, Viewing ivory a case from the tower person being so reversing used set- appellate tribunal and its damage merely tling filed, suit is on a verdict to afford in case plaintiff, may losing make party, ant or nullified has failed to proper predicate proper record, another no claim where another trial laid, unless, clearly not so, my opinion, which is has error is chance to do good here, the case the aberration place jury in a federal trial in the egregious practices been so where and the district justice. to amount denial of day and bear heat and burden respectfully jury, I dissent. the verdict for defend- whether