Hrivnak v. Perrone
| Decision Date | 28 April 1977 |
| Citation | 472 Pa. 348,372 A.2d 730 |
| Parties | Andrew HRIVNAK, Appellant, v. William J. PERRONE. |
| Court | Pennsylvania Supreme Court |
Argued Sept. 23, 1975.
Jack R. Sparacino, Belle Vernon, for appellant.
John E. Hall, Pittsburgh, for appellee.
Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
The central issue raised in this appeal concerns the Sua sponte charge of the trial court relating to a theory of recovery not raised by plaintiff-appellant and in fact refuted by the testimony offered on appellant's behalf. For this reason the Superior Court reversed the trial court, vacated the judgment in favor of appellant and awarded a new trial. [1] We granted allocatur and now affirm the order of the Superior Court.
The pertinent facts of this case may be summarized as follows: On June 11 1971, appellant Andrew Hrivnak, plaintiff below, filed a complaint in trespass in the Court of Common Pleas of Westmoreland County against appellee, William Perrone. The complaint alleged that on October 20, 1970, appellee was in the process of backing his vehicle against traffic on Donner Avenue, a one-way street in the City of Monessen, and 'did violently strike the (appellant), who was standing on the sidewalk, near the curb; pinning (appellant) against a pole; resulting in the injuries hereinafter complained of.' Appellee filed an answer to the complaint specifically denying that the vehicle operated by him struck appellant in any manner. Thus, as framed by the pleadings the issue in the lawsuit was whether appellant's vehicle did in fact strike the person of the plaintiff thereby causing the alleged injury.
At trial appellant's testimony was consistent with the averments of his complaint to the effect that he was struck by the vehicle driven by appellee and was pinned against a pole.
(sic)
After appellant rested his case the appellee and a witness offered by him testified that no touching occurred. Their evidence indicated that appellant 'stepped back' toward the curb when appellant noticed the approaching vehicle and then fell down. Russell McKeen, a factual witness produced by the appellee stated that he observed the incident from a second floor window across the street from where the event occurred. His testimony in pertinent part was as follows:
Q. Did you see the car moving?
A. Yes, before that, it was backing up slowly.
Q. It was backing up slowly?
A. Yes.
Q. Towards Mr. Hrivnak?
A. Right.
Q. And Mr. Hrivnak, at the time the car was backing up towards him, had taken a step into the street; is that right?
A. Yes, he stepped back on, back onto the curb. I imagine when he seen the car, he looked and seen the traffic and seen the car backing and stepped back. (sic)
Q. What did he do when he stepped back?
A. He fell.
Q. And did the car at any time come in contact with him?
A. No, I didn't see the car hit him at any time.
At the close of the evidence, both counsel delivered their summations to the jury. The arguments of counsel were consistent with their parties' respective allegations and proof. As framed by the pleadings, the evidence and the arguments of counsel, the jury was called upon to resolve whether appellant had in fact been struck by appellee's vehicle. In his charge to the jury the trial judge advised them as follows:
'Now remember that there does not have to be any touching of the plaintiff by the defendant's automobile to find for the plaintiff.'
Appellee's properly noted exception to this portion of the charge was overruled, and the jury returned a verdict for appellant in the amount of Ten Thousand, Eight Hundred, Twenty-five Dollars and Ten Cents ($10,825.10). Motions for judgment notwithstanding verdict and for a new trial were filed, heard and denied, and judgment was entered on the verdict. As has been stated heretofore, the Superior Court reversed the judgment and this Court granted allocatur. While the testimony of appellant, if believed by the jury, would have supported the verdict [2] under the impact theory, we must nevertheless consider the propriety of the challenged portion of the charge since it is quite possible that the verdict may have been predicated upon the theory introduced by the court in the charge.
On appeal to this Court, appellant contends that the Superior Court misperceived the question. It is urged that it was not the trial judge but the appellee who 'introduced' the alternative theory of negligence into the case through the testimony of the defense witness Russell McKeen. Appellant thus attempts to rely on the rule in this jurisdiction that '(a) party is entitled to the benefit of all affirmative facts helpful to his case, notwithstanding they may be adduced by his opponent's testimony.' Silberstein v. Showell, Fryer & Co. (No. 1), 267 Pa. 298, 304, 109 A. 701, 702 (1920). See also Devlin v. Piechoski, 380 Pa. 146, 110 A.2d 241 (1955); Northern Trust Company v. Huber et ux, 274 Pa. 329, 118 A. 217 (1922); Husvar v. The Delaware, Lackawanna and Western Railroad Company, 232 Pa. 278, 81 A. 298 (1911). In our judgment it is the appellant who fails to understand the principle he seeks to assert.
There is a distinct difference between permitting one to receive the benefits of All affirmative facts helpful to his case regardless of the party introducing such testimony and permitting one who asserts a claim to recover on the basis of evidence which is diametrically opposed to the facts alleged and testified to by him to support recovery. In each of the above cited cases where this Court applied the principle urged by appellant, the evidence sought to be used to support recovery was not in conflict with plaintiff's theory of recovery. Thus, in Husvar, we permitted recovery by a plaintiff who had rested his case simply showing an unexplained accident where the defendant assumed the unrequired burden of negating negligence and in so doing adduced evidence which supported the inference of its negligence.
The principle was again raised in Northern Trust Company. In that appeal the question was whether certain assets in the possession of the defendant constituted a gift or whether they had been placed in his possession solely for safekeeping. At the time that the plaintiff rested his case, a compulsory nonsuit would have been justified. The defendant then presented evidence which benefited the plaintiff. On appeal, this Court held that such evidence was to be considered regardless of its source. In Silberstein, the Court rejected the trial court's appraisal of plaintiff's case based solely on the testimony of the witness offered by the plaintiff but also considered evidence introduced by the defendant in support of plaintiff's position. Again in Devlin, we permitted testimony introduced by the defense to be used in support of the claim advanced by the plaintiff. The common theme of all of these decisions is that the challenged evidence supported the theory of the plaintiff.
To deny plaintiff the benefit of defense testimony which may support the plaintiff's theory would frustrate truth which is the ultimate objective of a trial. However, to permit recovery by a plaintiff, who has the responsibility of sustaining the burden of proof, under a factual setting which has been repudiated by his own evidence would create a paradox incapable of reconciliation with our concept of the adversary system.
The trial judge is charged with the responsibility of defining all Pertinent questions of law and clarifying the issues to be resolved by the jury. Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963). This responsibility however does not cast him in the role of an advocate. 'Judges should, within reasonable limitations, allow attorneys to try their own cases; . . . undue interference with the trial of a case and undue emphasis of one side of the case . . . are not in the interest of Justice.' Keating v. Belcher, 384 Pa. 129, 132, 119 A.2d 535, 537 (1956) (emphasis deleted).
See also Lutz v. Webster Hall Hotel, Inc., 183 Pa.Super. 557 132 A.2d 410 (1957). While he must crystallize the issues raised by the litigants and explain the relevant principles of law, he may not assume the advocate's function of introducing theories not raised by the parties. Appellant attempts to equate the challenged portion of the charge as being but an elaboration of the instruction on 'sudden emergency' [3] pertaining to the possible contributory negligence of Hrivnak. However, a reading of the charge as a whole, as we are required to do, McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971); Keba v. Pickett, 434 Pa. 148, 252 A.2d 675 (1969), disputes this interpretation. While a discussion of the doctrine of sudden emergency in relationship with the reasonableness of Mr. Hrivnak's conduct was indeed proper, another dimension was added when the trial court on its own initiative proceeded to relate this concept to a theory of liability against appellee which was totally irreconcilable with the theory advanced by appellant. If the explanation of the sudden emergency doctrine had been confined to appellant's inability to avoid the impact with the vehicle, the discussion of this subject would have been entirely appropriate under the factual issues raised. In...
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