Keefer v. Byers

• Decision Date: 22 March 1960
• Citation: 159 A.2d 477,398 Pa. 447
• Parties: Harry A. KEEFER, Appellant, v. Wayne J. BYERS.
• Court: Pennsylvania Supreme Court

159 A.2d 477

398 Pa. 447

Harry A. KEEFER, Appellant, v. Wayne J. BYERS.

Supreme Court of Pennsylvania.

March 22, 1960.

James P. Coho, Lancaster, for appellant.

W Hensel Brown, Brown & Zimmerman, Lancaster, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN, BOK and McBRIDE, JJ.

CHARLES ALVIN JONES, Chief Justice.

In this trespass action for damages for personal injuries suffered by the plaintiff in a collision between his automobile and defendant's truck, the jury returned a verdict in the sum of $8,000 for plaintiff Keefer. ^[1] The defendant moved for judgment n. o. v. and for a new trial. The motion for judgment n. o. v. was abandoned by counsel at the argument on the new trial motion. The court awarded the defendant a new trial because of an absence of instruction to the jury with respect to certain testimony introduced at trial by the plaintiff. The court concluded that the cited omission from the charge, even though unexcepted to or complained of by the defendant, constituted basic and fundamental error. The plaintiff has appealed, assigning for error the new trial order and the court's failure to enter judgment on the verdict.

Ordinarily upon an appeal from the grant of a new trial, the appellant has the very heavy burden of endeavoring to establish that the action of the court below in such regard constituted a clear and palpable abuse of discretion. Muroski v Hnath, 392 Pa. 233, 237, 139 A.2d 902; Braughler v Commonwealth, 388 Pa. 573, 581, 131 A.2d 341; Frank v. W. S. Losier & Co., Inc., 361 Pa. 272, 276, 64 A.2d 829. However, where it clearly appears, either by certificate of the trial court or in its opinion on the new trial motion, that, except for the reason relied upon by the court for granting a new trial, judgment would have been entered on the verdict, the action of the lower court becomes reviewable, not for an abuse of discretion, but for the legal merit of the sole and exclusive reason assigned for the granting of the new trial. Culver v. Lehigh Valley Transit Company, 322 Pa. 503, 511, 186 A. 70. The latter contingency is the situation disclosed by the record in the instant case. The opinion for the court below makes it indisputably plain that, except for the reason deemed by the court as requiring a new trial, judgment would have been entered on the verdict for the plaintiff. We therefore have for review the merit, as a matter of law, of the reason assigned by the court below for its action.

The plaintiff, who was his only witness as to the happening of the accident, testified to facts from which the jury could find that negligence on the part of the defendant was the proximate cause of the collision. On cross-examination, he was interrogated at length by factually ladened questions which strongly suggested that his version of the collision was a belated fabrication. To offset the impeaching effect of the cross-examination, the plaintiff called, as a witness, his son who was permitted to testify, over the defendant's objection, that the plaintiff had told him, a few days after the accident, at the hospital to which the plaintiff had been removed following his injury, that the collision had happened in a manner which did not differ materially from the narrative which the plaintiff himself had related on the witness stand. The admission of the son's testimony for the purpose of re-establishing the plaintiff's credit as a witness to the accident was a sound exercise of the trial judge's discretion. The son's testimony qualified as a consonant statement which, although hearsay and not proof of the substantive matter it contained, was admissible for the purpose of rehabilitating the credibility of the plaintiff whose veracity, if not integrity, has been interrogatingly impugned.

In Risbon v. Cottom, 387 Pa. 155, 162-163, 127 A.2d 101, 105, we summarized from the decisions on the admissibility of consonant statements as follows: 'An admissible consonant statement, as defined in the Lyke case, supra [Lyke v. Lehigh Valley Railroad Co., 236 Pa. 38, 47-51, 84 A. 595], is 'a prior declaration of a witness whose testimony has been attacked and, whose credibility stands impeached, which, considering the impeachment, the court will allow to be proved by the person to whom the declaration was made, in order to support the credibility of the witness, and which, but for the existence of such impeachment, would ordinarily be excluded as hearsay.' The rule has ancient and illustrious authority in this State. In Craig v. Craig, 5 Rawle, 91, 97-98, Chief Justice Gibson adopted Mr. Starkie's rule (1 Starkie's Evid. 187) 'that consonant declarations may be given in contradiction of evidence tending to show that the testimony at the bar is a fabrication of a recent date; and to show that the same statement was made before its ultimate effect on the question trying could have been foreseen * * *' (Emphasis supplied).'

While no direct evidence impeaching the plaintiff was introduced at trial, the disparaging effect of the facts assumed by the cross-examiner's questions, casting doubt, as they did, on the verity of the plaintiff's testimony, served to attack his credibility no less harmfully than direct impeaching evidence would have done.

In any event, the appellee has not urged upon us, as justification for the granting of the new trial, the objected-to admission of the testimony of the plaintiff's son, although that had been the principal one of the two reasons advanced by the defendant in the court below in support of his new trial motion. The other reason was that the trial judge had erred in submitting pain and suffering as an element of compensable damage when, as the defendant alleged, there was no direct proof that the plaintiff had so suffered. The court below very properly and very cogently rejected both grounds. What we have hereinbefore said as to the consonant-statement testimony amply justifies its admission. And, the extensive injuries suffered by the plaintiff as revealed by the undisputed medical testimony, furnished the most unerring evidence of the pain and suffering which the plaintiff must have endured. Cf. Todd v. Bercini, 371 Pa. 605, 607, 92 A.2d 538.

All that the appellee has argued, therefore, in this court, in an effort to sustain the granting of the new trial is what the court below adopted, sua sponte, as ground for a new trial, namely, the fact that the trial judge did not in instruct the jury as to the limited office of the consonant-statement testimony given by the plaintiff's son. The court below so acted even though it patently recognized that defendant's counsel was to blame for not having called the oversight to the trial judge's attention. Nevertheless, the court took upon itself some fault for not having so charged and granted a new trial by concluding that the omission constituted basic and fundamental error. By so doing, the court unwittingly penalized the plaintiff for the manifest inaction of his adversary's counsel at trial. Objections and exceptions not only serve a useful and proper purpose in protecting the objector's or exceptant's rights with respect to rulings on evidence made at trial, but the opposite party, as well as the court, is rightly entitled to have objections and exceptions made both timely and understandably. If that is done, the above-named procedural devices may, and often do, serve to bring about the eradication of their ascribed complaint and, thus, obviate the trial's later being rendered abortive.

In this case at the conclusion of an extensive, fair and impartial submission of the issues, the trial judge asked in the presence of the jury, 'Do counsel have any requests for further instruction?' To this inquiry, counsel for defendant remained silent. After the jury had retired to deliberate on its verdict, he requested a 'General exception to the charge and a specific exception to the court charging on pain and suffering * * *.' At no time had he requested any instruction in respect of the limited purpose of the consonant-statement testimony. Nor, as we have already noted, did he call the omission of such instruction to the attention of the trial judge. 'Where no particular instructions are prayed, the court is responsible only for the general effect of the charge considered as a whole, and not for mere omissions to say what might properly have...