Allen v. Mack

• Court: United States State Supreme Court of Pennsylvania
• Citation: 28 A.2d 783,345 Pa. 407
• Decision Date: 23 November 1942
• Parties: ALLEN v. MACK.

28 A.2d 783
345 Pa. 407

ALLEN
v.
MACK.

Supreme Court of Pennsylvania.

Nov. 23, 1942.

28 A.2d 783

Appeal No. 268, January term, 1942, from Court of Common Pleas No. 2, Philadelphia County (tried in Court of Common Pleas No. 1), September term, 1941, No. 2692; Harry S. McDevitt, President Judge.

Trespass by Edward Allen against Robert E. Mack for personal injuries sustained by plaintiff in an automobile accident. Verdict for plaintiff for $11,000 and judgment for $9,000 was entered upon filing of a remittitur, and defendant appeals.

Reversed, with a venire.

Before SCHAFFER, C. J., and MAXEY, DREW, LINN, STERN, PATTERSON, and PARKER, JJ.

White & Staples, of Philadelphia, for appellant.

Maurice E Cohen, of Philadelphia, for appellee.

MAXEY, Justice.

This is an appeal from a judgment for the plaintiff in an action of trespass to recover damages for personal injuries sustained by the plaintiff in a head-on collision between the automobile which the plaintiff was driving

28 A.2d 784

and a truck loaded with ten tons of sugar and operated by the defendant's employee. The collision occurred on Delaware Avenue in Philadelphia, between Spruce and Pine Streets, at about 2 P.M. on October 21, 1941. The plaintiff was driving South on the east side of Delaware Avenue. He claimed that the west side of the avenue was blocked with traffic. This claim was disputed.

After trial the jury returned a verdict for the plaintiff in the sum of $11,000. A remittitur was filed reducing the verdict to $9,000, upon which judgment was entered. This appeal followed.

The first question raised is as to the admissibility of a statement made by Prattis, the driver of the defendant's truck, while this driver, who was unhurt, was riding in the automobile of Aaron Barber, which was taking the plaintiff, who was bleeding from the head, to the hospital, after the accident. Barber's testimony was that on the way to the hospital the truck driver "said to me his helper on the truck had called his attention to something on the east side of Delaware Avenue and he had looked there, and when he turned his head he was going right into Mr. Allen's car". As this indicated inattentiveness on the part of the defendant's driver, it was damaging to the defendant. The trial judge did not state on what theory this statement was admitted over defendant's objection but the plaintiff contends that it was admissible as part of the res gestae.

This statement was not so admissible. The truck driver could have made this statement himself when he was under oath, on the stand, or if he when on the stand had made a statement at variance with the statement quoted by Barber, he could have been contradicted by the latter. For the witness, Barber, to repeat on the witness stand what Prattis, the truck driver, said to him while they were riding to the hospital was pure "hearsay". The circumstances which make admissible as part of the res gestae statements which ordinarily would be inadmissible as hearsay are well known and they are absent from this record.

Wigmore on Evidence, 2nd Ed., Vol. 3, sec. 1747, page 738, says as to res gestae: "* * * under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of un-trustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts." In Commonwealth v. Werntz, 161 Pa. 591, 597, 29 A. 272, 273, Justice Mitchell, speaking for this court, quoted with approval the following from 21 Am. & Eng. Ency. of Law, 102: If declarations ...