Felski v. Zeidman

• Decision Date: 24 November 1924
• Docket Number: 25
• Citation: 126 A. 794,281 Pa. 419
• Parties: Felski, Appellant, v. Zeidman
• Court: Pennsylvania Supreme Court

126 A. 794

281 Pa. 419

Felski, Appellant, v. Zeidman

No. 25

Supreme Court of Pennsylvania

November 24, 1924

Argued October 7, 1924

Appeal, No. 25, Oct. T., 1924, by plaintiff, from order of C.P. Washington Co., Feb. T., 1923, No. 177, refusing to take off nonsuit, in case of John Felski v. Jacob Zeidman, trading as Zeidman's Furniture Store. Affirmed.

Trespass for death of plaintiff's wife. Before BROWNSON, P.J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take off. Plaintiff appealed.

Error assigned was, inter alia, refusal to take off nonsuit quoting order.

The assignments of error are overruled and the order appealed from is affirmed.

Vernon Hazzard, for appellant. -- The court should have heard all of the testimony instead of entering a nonsuit: Parker v. Motor Car Co., 241 Pa. 461; Gojkovic v. Wageley, 278 Pa. 488; Kohler v. R.R., 135 Pa. 346; Luckett v. Reighard, 248 Pa. 24; Marcus v. Gimbel Bros., 231 Pa. 200; Kirk v. Showell, 276 Pa. 587; Zondler v. Foster, 277 Pa. 98.

Even admitting the competency of the testimony elicited from the driver on cross-examination, it still was the duty of the court to submit the case to the jury.

It is not proper to cross-examine a witness on other questions than those brought out by the examination, where the questions elicited on cross-examination tend to introduce matters of defense: Dixon v. Minogue, 276 Pa. 562; Griffith v. Eshleman, 4 Watts 51.

J. Roy Dickie, of Dickie, Kier & McCamey, for appellee, cited: Smith v. Traction Co., 202 Pa. 54; Albrecht v. Erie City, 265 Pa. 453; Dunmore v. Padden, 262 Pa. 436; Krewson v. Sawyer, 266 Pa. 284.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

On May 16, 1922, the plaintiff, John Felski, with his wife and three sons, was passing along Eighth Street, Charleroi, in an automobile and when crossing McKean Avenue an autotruck so violently collided with the automobile as to demolish it and kill plaintiff's wife. The truck was owned by the defendant, Jacob Zeidman, a furniture dealer, and the accident apparently happened by the fault of the driver, Louis Glenn. It was developed, however, by witnesses called for plaintiff, that Glenn was not in defendant's employ, had taken the truck without leave and was using it for a purpose of his own. Under such circumstances the trial judge granted a nonsuit and the refusal to take it off forms the basis of this appeal by plaintiff. The fact that the truck was being so used by Glenn was shown by the testimony of three witnesses, to wit, Glenn, his father and the defendant, the latter being called for cross-examination, and there was no evidence to the contrary. True, it was a business truck with defendant's name thereon, which would raise a presumption that it was being used in his business (Sieber v. Russ Bros. Ice Cream, 276 Pa. 340; Williams v. Ludwig Floral Co., 252 Pa. 141; Holzheimer et ux. v. Lit Brothers, 262 Pa. 150); but in the instant case this presumption cannot stand in the face of the evidence of plaintiff's witnesses to the contrary. Had the defendant offered oral testimony to rebut the presumption, its credibility would have been for the jury (Gojkovic v. Wageley et al., 278 Pa. 488, 490, and cases there cited), but plaintiff cannot question the credibility of his own uncontradicted witnesses. Moreover, he was bound by the testimony of the defendant, given as under cross-examination, for it was neither contradicted nor qualified (Krewson, Exrx., v. Sawyer et al., Exr., 266 Pa. 284, 287; Dunmore et ux. v. Padden, 262 Pa. 436, 439), and that testimony was fatal to plaintiff's case.

Appellant complains of the action of the trial judge in permitting the cross-examination of Louis Glenn to bring out the fact that he had taken the truck without permission and was using it for his own purpose; this complaint cannot be sustained. The witness had testified in chief that he was driving the truck at the time in question and that its foot brake was defective. This rendered pertinent the circumstances under which he was driving the truck and developed the facts that he was not then in defendant's employ, had taken the truck without leave to take a child home, then to take a girl friend down to the bridge and was returning when the accident occurred. What was brought out was a part of the res gestae which is always a proper subject for cross-examination: 1 Wharton's Law of Evidence, sec. 529; Markley v. Swartzlander, 8 W. & S. 172; Quigley v. Thompson, 211 Pa. 107, 109; Smith v. Traction Co., 202 Pa. 54. As stated by Chief Justice GIBSON in Bank v. Fordyce, 9 Pa. 275, 277: "A party is entitled to bring out every circumstance relating to a fact which an adverse witness is called to prove. In Markley v. Swartzlander, 8 W. & S. 172, a party was allowed to cross-examine to new matter, because it was part of the res gestae; which is exactly this case." To like effect is the language of Justice SHARSWOOD in Jackson v. Litch, 62 Pa. 451, 456, that: "Where a witness has stated a fact, he may be asked by the other party to detail all the circumstances within his knowledge which qualify it, even though they may constitute new matter and form part of his own case"; and see Reibstein v. Alderney Dairies, 264 Pa. 447. The ruling of the trial court in the instant case is supported by Quigley v. Thompson, supra, where Justice FELL, speaking...