MARK R. WALTER vs. MARTIN C. BONITO & another.

KAPLAN, J. On December 31, 1969, a truck driven by Martin C. Bonito and owned by his employer, John J. Botti Co., Inc., skidded while descending a hill on Route 138 in Canton, crossed the center of the two-lane road, and collided with an oncoming Econoline van being driven by Mark R. Walter. Walter sustained personal injuries with connected medical expenses and loss of earnings, and, alleging negligence on the part of Bonito, brought the present action against Bonito and the Botti company. The plaintiff won a jury verdict in the Superior Court for Suffolk County on February 1, 1973, and the defendants by their bill of exceptions raise two points for review here: Should their motion for a directed verdict at the close of all the evidence have been granted, and was it prejudicial error to allow the plaintiff, who had called the defendant Bonito as a witness, to impeach him by introducing in evidence the records of five prior convictions for motor vehicle violations.

There were material differences between the plaintiff's and defendants' versions of the events leading to the collision.

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In his testimony the plaintiff said that at the time of the accident he was beginning to ascend a hill at about five miles an hour, that the weather was bad, a mixture of snow, sleet, and rain, and the road was wet with patches of ice and snow. He testified that the defendants' vehicle was descending the hill at not less than twenty and maybe up to thirty miles per hour, not slowing down, and when ten to twenty feet from the plaintiff's van slid sideways, crossed the center of the two-lane road and struck the left front of the plaintiff's van, pushing it back twenty to twenty-five feet. He said the defendants' truck was not equipped with chains but did have deep rib snow tires.

The defendant Bonito confirmed that the accident consisted of his truck skidding across the center of the road into the plaintiff's van, but he presented an explanation different from the plaintiff's in his accident report filed with the Registry of Motor Vehicles and in answers to the plaintiff's interrogatories, all introduced in evidence by the plaintiff, and also in his testimony under questioning by the plaintiff's attorney. Bonito said that when he reached the crest of the hill and began to descend some 100 to 150 feet from the accident scene, he both downshifted and applied his brakes; at that point he was going fifteen to twenty miles an hour but he slowed down as he approached the plaintiff's van ("I applied my brakes to make the hill, because with trucks on the hill you've got to go slow with them."). He testified that the road was wet, but that it was not raining or snowing at the time of the accident, which was about 11 A.M., and that he saw no icy patches and did not think there was any ice or snow on the road until he hit the icy patch that caused his truck to skid, turn sideways, and strike the plaintiff's van. After the skid began he blew his horn and tried to steer away in an attempt to avoid the collision. The van, he said, was not moved backward by the impact of the collision.

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In the face of the conflict in the evidence -- a conflict not resolved by photographs of the damaged vehicles introduced in evidence by the plaintiff -- it was not error for the judge to decline to direct a verdict for the defendants. If the jury, evaluating the defendant Bonito's credibility, had chosen to believe him, they could have found that he was not negligent and that the collision arose from accident not reasonably avoidable. But believing the plaintiff, as evidently they did, the jury could conclude that the defendant Bonito was negligent in descending the hill at too high a rate of speed, with no attempt to slow down under conditions he observed as hazardous, making a skid likely, and with it a loss of control of the vehicle. The choice between believing the plaintiff and the defendant Bonito was one characteristically for the jury.

The defendants' second point is more compelling. As part of his affirmative case, the plaintiff called the defendant Bonito as his witness and, after eliciting testimony on the lines described, offered records of six convictions of Bonito in the District Courts for motor vehicle violations. These were: a 1970 conviction for driving in a break-down lane, resulting in a $5 fine; a 1969 conviction for speeding with a $15 fine; and 1964 convictions, stemming from a single incident, for drunkenness, which was filed, for operating under the influence of liquor, which resulted in a $100 fine, for operating to endanger, fined $20, and for leaving the scene of an accident, fined $20. These records were offered for the purpose of impeaching Bonito's credibility. The judge admitted the records with the exception of the conviction for drunkenness which had been placed on file. We are obliged to agree with the defendants' contention that the admission of these records was error.

The governing statute, G. L. c. 233, Section 23, provides that "[t]he party who produces a witness shall not impeach his credit by evidence of bad character, but may contradict him by other evidence, and may also prove

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that he has made at other times statements inconsistent with his present testimony." In Labrie v. Midwood, 273 Mass. 578 (1931), we held that the statute applied to a party who called his opponent as a witness: a plaintiff who had called a defendant as a witness was there held barred from impeaching his credibility by introducing a record of his prior conviction of crime. The court reasoned that "the whole purpose of introducing the record of the conviction of a witness of crime" was to "impeach the credit of the witness by evidence of bad character," and so the statute covered. Id. at 582. To the proposition that prior criminal convictions go to prove bad character, see Commonwealth v. Arsenault, 361 Mass. 287, 301 (1972); McCormick, Evidence, Sections 41-43 (1972); Wigmore, Evidence, Section 980 (Chadbourn rev. 1970); Leach and Liacos, Handbook of Massachusetts Evidence, 121-126 (1967). We are aware that there is much sentiment and strong argument for allowing a party to impeach his own witness just as he can attack the opposition's, see Uniform Rules of Evidence, Rule 20, as found in 9A U. L. A. 607 (1965); Federal Rules of Evidence, Rule 607, 28 U. S. C. App. (Supp. V, 1975) (as enacted by P. L. 93-595, January 2, 1975, effective July 1, 1975); Wigmore, op. cit., at Section 899, and particularly does the argument appear cogent when one's witness is the adverse party, for here the fiction that by offering a witness one "vouches" for him is most vacuous. See Rule 43 (b) of the Federal Rules of Civil Procedure, 28 U. S. C. Appendix (1970); Wigmore, op. cit., at Section 916. But regardless of what the degree of our own enthusiasm might be for such a rule, we do not consider ourselves free to adopt it by decision in defiance of the statute as previously interpreted. Rule 43 (b) of our new Rules of Civil Procedure, 365 Mass. 806 (1974), departing from its Federal model which allows broad impeachment of the adverse party when called as a witness, expressly forbids impeachment in such a case "by evidence of bad character"; our rule thus accepted

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G. L. c. 233, Section 23, as a datum and the Reporters' Notes to the rule cite Section 23 and the Labrie case.

Two further points may be mentioned. General Laws c. 233, Section 22, permits a party who calls an adverse party to "cross-examine" him. The Labrie case considered and rejected the possible argument that Section 22 overcame Section 23, and history supports the conclusion, for Section 22 derived from St. 1870, c. 393, Section 4, and in 1870 it was already settled law in the Commonwealth that for impeachment purposes previous convictions could only be shown by introduction of the records and not by cross-examination in the usual sense, see Commonwealth v. Quin, 5 Gray 478, 480 (1855); Root v. Hamilton, 105 Mass. 22 (1870), a position which has indeed been repeatedly affirmed. See Commonwealth v. Walsh, 196 Mass. 369 (1970); Commonwealth v. Arsenault, supra, at 301; Ford v. Kremer, 360 Mass. 870 (1972); Commonwealth v. Connolly, 356 Mass. 617, 627 (1970). The second point, which the Labrie case also disposed of, is the possible argument that G. L. c. 233, Section 21, the general statute permitting use of convictions for impeachment, might override the more specific restrictions of Section 23. The ancestor of Section 21, St. 1851, c. 233, Section 97, was enacted at a time when one still could not impeach the credibility of one's own witness in any respect, see Whitaker v. Salisbury, 15 Pick. 534, 544-545 (1835); Adams v. Wheeler, 97 Mass. 67, 67-68 (1867), consequently it would not make sense to read Section 21 as detracting from a later statute permitting such impeachment in only limited ways. [Note p122] So it was error to allow the defendant Bonito to be impeached

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by the introduction of the records of his prior convictions. [Note 1]

It remains to decide whether the error was sufficiently prejudicial to require a new trial. We hold that it was. A limiting instruction was indeed given to the effect that the convictions were to be used only to impeach credibility, and, as Hennessey, J., noted, concurring in Commonwealth v. DiMarzo, 364 Mass. 669, 682 (1974), in logic, "Prior convictions, even as applied only to the credibility issue, have little or no probative value in most instances." [Note 2] But we cannot fail to recognize that where,

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as here, the prior convictions relate to offenses similar to the tort at bar, there is an especially serious danger that a jury will disregard limiting instructions and allow the convictions to influence their deliberations as substantive evidence. See Commonwealth v. DiMarzo, supra, at 679-682 (concurring opinion of Hennessey, J.); People v. Sandoval, 34 N. Y. 2d 371, 377 (1974). In this light, and considering the condition of the rest of the proof in the case, we cannot say that the defendants might not have prevailed if the records of conviction had been excluded. Hence a new trial is called for. [Note 3] See Labrie v. Midwood, 273 Mass. at 582 (1931).

Exceptions sustained.