Conley v. Mervis

• Decision Date: 07 December 1936
• Docket Number: 144
• Parties: Conley et al. v. Mervis, Appellant
• Court: Pennsylvania Supreme Court

188 A. 350

324 Pa. 577

Conley et al. v. Mervis, Appellant

No. 144

Supreme Court of Pennsylvania

December 7, 1936

Argued October 13, 1936.

Reargued November 30, 1936

Appeal, No. 144, March T., 1936, by defendant, from order of C.P. Allegheny Co., Jan. T., 1932, No. 2491, in case of Nellie Conley, by her husband and next friend, Andrew C Conley, and Andrew C. Conley, in his own right, v. Morris Mervis, trading as Mervis Motor Sales. Order reversed and judgment entered for defendant.

Trespass for personal injuries and for property damage. Before MUSMANNO, J.

The opinion of the Supreme Court states the facts.

Disagreement by jury. Motion by defendant for judgment upon whole record refused. Defendant appealed.

Error assigned, among others, was ruling on scope of cross-examination.

Order of the court below reversed and it is ordered that judgment be entered for defendant with costs.

Arthur M. Grossman, with him Harold H. Herwitt, for appellant.

N. H Leventon, with him Jacob Shulgold, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. CHIEF JUSTICE KEPHART:

Appellees, plaintiffs in the court below, were injured by a truck bearing dealer's license plates owned by appellant, the defendant. Defendant denied ownership of the truck and that the driver was his servant. It appeared that dealer's license plates No. 3X547 for 1931 were on the truck at the time of the accident, and defendant was called by plaintiffs as on cross-examination and asked whether he had owned the license plates. Having admitted ownership, his counsel proposed to examine him further in connection therewith: whether they had been loaned to anyone and whether the truck was driven by his servant in the scope of his employment. The court below refused to permit the examination, holding that these matters were part of defendant's case and could not be brought out under the guise of cross-examination. The defendant was forced to introduce this testimony as part of his own case. The issues having been submitted to the jury, it disagreed, and the refusal of defendant's request for judgment on the whole record caused this appeal.

It is conceded that the ownership of dealer's license plates appearing on a motor vehicle raises a rebuttable presumption that the truck belonged to the owner of the tags, and was driven by his agent or servant in the scope of employment; and this, without more, would require the submission of these questions to the jury, even though rebutted by the uncontradicted oral testimony of the dealer's witnesses: Coates v. Commercial Credit Co., 310 Pa. 330; Haring v. Connell, 244 Pa. 439; Prezel v. Spencer, 99 Pa.Super. 404; Theil v. Wolfe, 77 Pa.Super. 312; Herrington v. Hill, 60 Pa.Super. 202; cf. Orluske v. Nash Pbg. Motors Co., 286 Pa. 170. Defendant contends, however, that the court below should have permitted his cross-examination to embrace any matter touching upon or connected with the question of ownership of the tags, including all the inferences arising therefrom, and, if this had been allowed, the prima facie case arising from ownership would have been overcome by plaintiffs' own witness.

The scope of cross-examination in Pennsylvania is more restricted than that permitted in England, where it may embrace any matter material to the case irrespective of whether it relates to a point testified to by the witness in his examination in chief. See Wigmore on Evidence (2nd ed.), Sections 1885 to 1891. In this state it has been frequently stated that cross-examination must be strictly confined to matters touched upon in direct examination. This viewpoint originated in general statements which appear frequently in our cases discussing the permissible scope of cross-examination. "The cross-examination, as a general thing, is only regular when it is confined to testimony given by the witness in chief": Helser v. McGrath, 52 Pa. 531, 533. "It is certainly well settled in this state that cross-examination must be confined to the matters which have been stated in the examination in chief": Jackson v. Litch, 62 Pa. 451, 455. Expressions of a similar nature will be found in numerous other cases: see Hopkinson v. Leeds, 78 Pa. 396, 400; Hughes v. Westmoreland Coal Co., 104 Pa. 207, 213; Glenn v. Traction Co., 206 Pa. 135, 137. But this rigid rule has not been closely adhered to, and we have created well defined exceptions. The conception that these general pronouncements are an accurate statement of the rule is erroneous. It disregards the limitations imposed on its operation and ignores the fundamental reasons for the imposition of any restrictions on the scope of cross-examination.

The underlying reason for confining the scope of cross-examination is to promote order and method in the presentation of a case. Each party must have an opportunity to present his side of the case without the introduction of matters unrelated to his case in chief and not touched upon in his evidence. The Pennsylvania rule makes the issues as clear as possible to the jury by reducing to a minimum the possibility of the intermingling of matters purely defensive in character with the facts of a plaintiff's case. See Wigmore on Evidence (2nd ed.), Section 1887(b). The issues are clarified and confusion eliminated to the greatest possible extent by the separation of their respective contentions and the testimony produced in support thereof.

Ever since Chief Justice GIBSON, in Ellmaker v. Buckley, 16 S. & R. 71, 77 (1827), placed a limitation on the scope of cross-examination, this court has realized that it must retain a flexibility in its application; and where literal enforcement would only serve to defeat the ends of justice it must be relaxed. The result has been that, over this period of more than one hundred years, the effect of the general rule restricting the scope of cross-examination has been materially modified, so that our general rule can scarcely be said to accurately portray the present status of the law. The failure to give due weight to these modifications of the broad general rule misled the trial court in this case.

Nothing is better established than that cross-examination in many cases may reach beyond the facts elicited on direct examination and embrace new matter. As early as 1848 Chief Justice GIBSON, the creator of the Pennsylvania rule, in Bank v. Fordyce, 9 Pa. 275, said at p. 277: "A party is entitled [on cross-examination] to bring out every circumstance relating to a fact which an adverse witness is called to prove." Or, as the rule is sometimes stated, it is competent on cross-examination to develop all circumstances within the witness' knowledge which qualify or destroy his direct testimony, although strictly speaking they constitute new matter and are part of the cross-examiner's own case: Felski v. Zeidman, 281 Pa. 419, 422; Quigley v. Thompson, 211 Pa. 107, 109; Jackson v. Litch, supra. In Smith v. Traction Co., 202 Pa. 54, 57, quoted with approval in the Felski case, this court, after stating the broad principle that cross-examination should be confined to matters testified to in chief and cannot be used to bring out new matter in defense, said: "But it is equally true that, when cross-examination is germane to what is inquired into in chief, or tends to elicit facts which, as in this case, the plaintiff ought to have brought out as part of the case, and which the court and jury should have known from him and his witnesses, the defendant should be allowed to develop what is withheld intentionally or otherwise." Therefore it may be regarded as definitely settled that cross-examination may embrace any matter germane to the direct examination, qualifying or destroying it, or tending to develop facts which have been improperly suppressed or ignored by the plaintiff. It is equally established that where a plaintiff offers himself as a witness, he may be cross-examined as to anything relevant provided it is not purely a matter of defense, on the theory he should not withhold matters materially affecting his rights ( Greenfield v. Philadelphia, 282 Pa. 344; Albrecht v. Erie City, 265 Pa. 453); and facts may be elicited on cross-examination which are part of the res gestae, even though in a sense they constitute new matter: Felski v. Zeidman, supra. Finally, the decision as to the proper scope of cross-examination rests within the trial court's sound discretionary power, and its failure to properly limit it is not grounds for reversal in the absence of apparent injury as a result of the error: Glenn v. Traction Co., supra; Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35, 47; Hughes v. Westmoreland Coal Co., supra.

The burden restel upon plaintiffs to prove that the truck driver was defendant's servant and that he was engaged in his master's business at the time of the accident Readshaw v. Montgomery, 313 Pa. 206, 208, and authorities cited therein. Defendant's testimony, on examination by plaintiffs, admitting ownership of the license plates, had much greater significance than the fact of ownership would seem to indicate and enabled them to meet this burden. The real purpose of a question may reach far beyond its apparent import: cf. Kirschman v. Pitt Publishing Co., 318 Pa. 570, 575. Under our decisions with respect to dealer's license plates, this admission had embodied in it not only the fact of ownership but inferences sufficient to take the case to the jury: namely, that the motor vehicle was owned by defendant; that the driver was his servant; and that the vehicle was being driven at the time on his business. It was not the fact of ownership which was harmful but the implications arising from it. Defendant proposed to cross-examine the witness as to the fact of...