“In Missouri, evidence of the fact that a traffic citation was or was not issued is inadmissible in a negligence case because it is prejudicial and brings before the jury a false issue. . . . Indeed, its admittance into evidence is grounds for a mistrial.”
How later courts described this case
- “In Missouri, evidence of the fact that a traffic citation was or was not issued is inadmissible in a negligence case because it is prejudicial and brings before the jury a false issue. . . . Indeed, its admittance into evidence is grounds for a mistrial.”
- repeated inadmissible prejudicial statements concerning police failure to issue defendant traffic ticket and plaintiff’s holding of insurance; denial of motion for new trial reversed
- repeated, deliberate reference to evidence excluded by district court is clear misconduct and grounds for new trial
Written by the judges who cited it.
The opinion
WEBSTER, Circuit Judge
(dissenting).
I dissent. Only the most compelling circumstances would warrant an appellate court’s rejection of a district court’s own assessment of whether a violation of its ruling was fatally prejudicial.
The trial judge heard the testimony, observed the witnesses, and saw the apparent effect or noneffect of defense counsel’s actions upon the jury. Judge Collinson ruled promptly in favor of plaintiff on his objection to the challenged testimony. He gave the jury appropriate instructions to disregard the improper questions and answers. Who then is better situated to pass upon a motion for new trial based upon such improper testimony?
A motion for a new trial is addressed to the sound discretion of the trial court and the action of the trial court should not be upset absent a strong showing of an abuse thereof. Farmers’ Cooperative Elevator Association Non-Stock of Big Springs, Nebraska v. Strand, 382 F.2d 224, 230-231 (8th Cir.), cert. denied, 389 U.S. 1014 , 88 S.Ct. 589 , 19 L.Ed.2d 659 (1967); Bankers Life & Casualty Co. v. Kirtley, 307 F.2d 418, 423 (8th Cir. 1962).
Sanden v. Mayo Clinic, 495 F.2d 221, 226 (8th Cir. 1974).
The District Court, in its order denying the motion for new trial, noted the somewhat unusual circumstances under which the defendant pressed to establish that no citation had been issued. The plaintiff was himself a policeman. Another policeman on the scene testified that defendant’s car had entered the intersection against the red light. The police officer charged with investigating the accident arrived a short time after the accident. His report did not mention the “eye ball” policeman in the list of witnesses. Thus a colorable basis for impeaching the “eye ball” policeman was presented to the judge. The police officer’s report was offered and received in evidence, without objection, while the officer was on the stand. No objection was made to reading the report to the jury. Only after the no-citation reference was read was there an objection. The judge promptly and fully cautioned the jury that the officer’s opinion was not probative. No mistrial was requested.
Under such circumstances it seems incumbent upon the reviewing court to defer to the trial judge’s assessment of the prejudice, if any, which resulted. Moreover, we have long held that a party may not withhold assertion of a trial error other than plain error and then urge the error upon appeal if the verdict is not to his liking. A motion for mistrial must be promptly filed if counsel believes the court’s action on his objection is insufficient to cure the prejudice. See Skogen v. Dow Chemical Co., 375 F.2d 692, 703 (8th Cir. 1967); Complete Auto Transit, Inc. v. Wayne Broyles Engineering Corp., 351 F.2d 478, 481-82 (5th Cir. 1965). See also Nanda v. Ford Motor Co., 509 F.2d 213, 222 (7th Cir. 1974).
Under Missouri law, evidence of whether a party was issued a citation for violation of a traffic ordinance is inadmissible as not materially probative of negligence. See Wills v. Townes Cadillac-Oldsmobile, Inc., 490 S.W.2d 257, 262-63 (Mo.1973); Cotton v. Pyle, 400 S.W.2d 72, 75-76 (Mo.1966). Where reference to a citation or lack of citation occurs, the Missouri courts have consistently held that the error is not plain but must be assessed in light of the circumstances of the particular case in order to determine whether prejudice resulted. Wills v. Townes Cadillac-Oldsmobile, Inc., supra, 490 S.W.2d at 262-63 ; Cotton v. Pyle, supra, 400 S.W.2d at 75-76 . As the Supreme Court of Missouri recognized in the latter case:
There are, of course, circumstances in which it is clear that an attempt to re *1030 move by instruction to the jury the prejudicial effect of incompetent testimony, or questions improperly put by counsel, would be ineffective to remedy the error. * * * Much is left to the discretion of the trial court in determining whether corrective action is appropriate and sufficient * * *, and the trial court is in a much better position to determine whether a verdict has been obtained through “sharp practice,” * * *. [citations omitted]
Id. at 76 . See also Commerford v. Kreitler, 462 S.W.2d 726, 733-34 (Mo.1971).
Similarly, the “collateral source” rule was only indirectly implicated in the cross-examination of the plaintiff as to whether his medical bills had been promptly paid. The plaintiff testified: “They were paid when I could pay them.” This prompted defense counsel to respond: “Now, Mr. Brown, you didn’t pay any of these bills, did you?” The court immediately sustained plaintiff’s objection. In denying the motion for new trial, the District Court considered its ruling on the objection sufficient to prevent prejudice and noted in effect that the jury must have decided the case on the issue of liability since the injuries established by the evidence were substantial.
I do not mean to suggest that intentional misconduct by counsel should be allowed to prejudice the rights of the other party. The intent and degree of harm, however, can best be judged by the judicial officer who observed the conduct. While I would have affirmed the District Court had it determined that defense counsel’s conduct warranted a new trial, provided a foundation had been laid therefor, I think the same deference to a close question — that of prejudice — requires us to rely upon the assessment of the trial judge in an area so deeply committed to his discretion.
I would affirm.