Hammel v. Christian

610 A.2d 979, 416 Pa. Super. 78, 1992 Pa. Super. LEXIS 1464

• Court: Superior Court of Pennsylvania
• Decided: May 29, 1992
• Docket: 888
• Status: Published

Opinions

WIEAND, Judge:

On April 25, 1985, at or about 6:45 p.m., vehicles driven by Dara Lyn Christian and Mary Theresa Hammel, now DeClaudio, came into collision at the intersection of Brownsville Road and Sixth Avenue in the Township of South Park, Allegheny County. The intersection was controlled by a traffic light. Injured as a result of the collision was Lucille E. Hammel, a passenger in the vehicle operated by her daughter, Mary Theresa. Lucille Hammel and her husband, Joseph, commenced a civil action against Dara Lyn Christian, who caused Mary Theresa DeClaudio to be joined as an additional defendant. At trial, the jury found that only Mary Theresa DeClaudio, the additional defendant, had been negligent in causing the accident and awarded damages of fifty-five thousand ($55,000.00) dollars to the wife-plaintiff.¹ Post-trial motions were denied, judgment was entered on the verdict, and the plaintiffs appealed.

The trial court did not err when it denied appellants’ motion for judgment n.o.v. “A judgment n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict is improper.” Lira v. Albert Einstein Medical Center; 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989), allocatur denied, 527 Pa. 635, 592 A.2d 1302 (1990). See: Fleck v. Durawood, Inc., 365 Pa.Super. 123, 127, 529 A.2d 3, 5 (1987). In ruling upon a plaintiff’s motion for judgment n.o.v., moreover, a trial court is required to consider the evidence, as well as all reasonable inferences therefrom, in the light most favorable to the defendant who won the verdict. Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100,103 (1980); Lira v. Albert Einstein Medical Center, supra at 508, 559 A.2d at 552.

In the instant case, there was evidence that the additional defendant, while driving on a four lane road, had attempted to make a left turn across two lanes of approaching traffic at a time when her vision was partially obstructed by other vehicles and without first ascertaining that the curb lane was free of traffic moving into the intersection with a green light. Under these circumstances, a jury could reasonably find that it had been the additional defendant who was one hundred (100%) percent at fault in causing a collision with a vehicle which had been operated by the defendant in the curb lane.

Jeanine Reese Schultz, a witness, was residing outside Pennsylvania and was unwilling to testify on plaintiffs’ behalf. At the scene of the accident, according to the testimony of the wife-plaintiff and her daughter, the witness had told them that Ms. Christian was speeding. Testimony of this statement was received in evidence. However, the trial court disallowed testimony regarding a similar statement made by the witness to an investigating police officer fifteen (15) to eighteen (18) minutes after the accident. The trial court also excluded evidence of a statement made by the witness to a private investigator almost five months after the accident. Appellants contend that the exclusion of these statements was error.

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hreha v. Benscoter, 381 Pa.Super. 556, 565, 554 A.2d 525, 529 (1989); Spotts v. Reidell, 345 Pa.Super. 37, 42, 497 A.2d 630, . 633 (1985). Hearsay evidence is inadmissible, primarily because out of court statements “are not generally made under conditions in which they may be subjected to testing by cross-examination.” Packel and Poulin, Pennsylvania Evidence § 802. See: Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968); Commonwealth v. Joraskie, 360 Pa.Super. 97, 100, 519 A.2d 1010, 1011 (1987). The res gestae or excited utterance exception to the hearsay exclusion was defined by the Supreme Court of Pennsylvania in Allen v. Mack, 345 Pa. 407, 28 A.2d 783 (1942), as

a spontaneous declaration by a person whose mind has been suddenly made subject to an over-powering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties. In a res gestae declaration the exciting event speaks through the impulsive words of a participant or onlooker. It is in a psychological sense a part of the act itself. The apparent condition of the declarant’s mind when the declaration is made is the test of the latter’s admissibility as a part of the res gestae. To make the declaration admissible the state of the declarant’s mind as induced by the shock of the occurrence must be such as to integrate his spontaneous declaration exclusively with the occurrence itself.

Id., 345 Pa. at 410, 28 A.2d at 784-785. In Commonwealth v. Sanford, 397 Pa.Super. 581, 580 A.2d 784 (1990), allocatur denied, 527 Pa. 586, 588 A.2d 508 (1991), the Superior Court explained further as follows:

In considering the facts of particular cases where this issue has been raised, the courts have considered: 1) whether the declarant, in fact, witnessed the startling event; 2) the time that elapsed between the startling event and the declaration; 3) whether the statement was in narrative form (inadmissible); and, 4) whether the declarant spoke to others before making the statement, or had the opportunity to do so.

Id., 397 Pa.Superior Ct. at 589, 580 A.2d at 788. Time, therefore, is an important factor.

If the statement occurs while the exciting event is still in progress, courts have little difficulty finding that the excitement prompted the statement. But as the time between the event and the statement increases, so does the reluctance to find the statement an excited utterance____ Perhaps an accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.

Packel and Poulin, Pennsylvania Evidence, § 803.2, at p. 569, quoting McCormick, Evidence, § 297 at p. 856 (3d ed. 1984).

In the instant case, the trial court held that a statement made by the witness to an investigating police officer fifteen (15) to eighteen (18) minutes after the accident and after the witness had earlier spoken to two of the parties involved in the accident was not shown to have been induced by the shock of seeing the accident. We find no error in this evidentiary ruling. In Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952), a statement made to a police officer two or three minutes after the accident was excluded because it was not shown to be an “emotional, impulsive outburst made under the spell of excitement or shock caused by the occurrence to which [the statement] relate[d] and uttered before the process of the intellect [had] had opportunity to come into play.” Id., 371 Pa. at 583-584, 92 A.2d at 173.

The statement made by the witness to a private investigator almost five months after the accident was also subject to exclusion as hearsay; it was not admissible as past recollection recorded. Before the content of a writing becomes admissible under the hearsay exception for past recollection recorded, the proponent must show that the following four requirements have been met:

“1) the witness must have had firsthand knowledge of the event; 2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it; 3) the witness must lack a present recollection of the event, and 4) the witness must vouch for the accuracy of the written memorandum.”

Commonwealth v. Cooley, 484 Pa. 14, 21, 398 A.2d 637, 641 (1979), quoting McCormick, Evidence, § 299 at p. 712 (2d Ed.1972). In the instant case, the statement was not made at or near the time of the accident, and the witness refused to vouch for the accuracy of the written statement allegedly made to plaintiffs’ private investigator. When her depositions were taken in Ohio, she professed to lack any recollection of the accident and either could not or would not vouch for the accuracy of the statement produced by the plaintiffs. Indeed, she said she didn’t remember giving the statement. Under these circumstances, the trial court did not err when it held that the written statement allegedly made to the private investigator was hearsay and inadmissible.

Prior to trial, the plaintiffs settled their claim against their daughter, the additional defendant, and executed a joint tortfeasor’s release. As a part of that release, plaintiffs agreed that at trial they would not present any evidence against their daughter, Mary Theresa Hammel DeClaudio. At trial, the wife-plaintiff was cross-examined about this agreement. Appellants contend that this was error. We disagree.

The agreement not to present evidence against her daughter was relevant to attack the credibility of the wife-plaintiff’s version of the accident. A review of the record discloses that the jury was never told that the plaintiffs’ claim against the additional defendant had been settled. Moreover, although the language of the release was shown to the wife-plaintiff, the release was not given to the jury to examine, and it was identified in the testimony merely as “this document which you and your husband signed.” The true nature of the document was not at any time divulged to the jury. The trial court, under these circumstances, did not commit error or abuse its discretion by allowing the witness to be cross-examined about her agreement not to give testimony against the additional defendant.

Appellants argue that such cross-examination was in violation of statutory law, adopted at 42 Pa.C.S. § 6141(c), which provides that a settlement or payment of a claim is not admissible in evidence. As previously discussed, the settlement agreement was not admitted as evidence, and its existence was never revealed to the jury. Hence the prohibition in § 6141(c) was never violated. The statute does not render inadmissible those statements which are made during settlement negotiations when the statements are otherwise admissible as admissions or declarations against interest or when they are relevant to aid a jury in assessing the credibility of testimony given by a party. See: Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 551, 449 A.2d 1366, 1369 (1982); Mannella v. City of Pittsburgh, 334 Pa. 396, 403, 6 A.2d 70, 73 (1939); Rabinowitz v. Silverman, 223 Pa. 139, 144, 72 A. 378, 380 (1909). In such cases, a trial court is only required to exclude reference to the compromise, while allowing the jury to hear the statements. Packel and Poulin, Pennsylvania Evidence, § 408 at p. 200 (1987). See: Rabinowitz v. Silverman, supra.

Finally, appellants argue that the trial court erred when it disallowed cross-examination of the defendant regarding ownership of the vehicle which she had been driving at the time of the accident. In fact, the vehicle was owned by Kimberly Clark Corporation,² the employer of defendant’s father, to whom use of the vehicle had been entrusted. The trial court ruled that this evidence was irrelevant. Appellants appear to concede the substantive irrelevancy of the legal ownership of the car but contend that it should have been allowed to contradict the defendant who, when asked whose car she was driving, replied, “my father’s.”

“[T]he scope and limits of cross-examination are within the trial court’s discretion, and the court’s rulings thereon will not be reversed in the absence of a clear abuse of discretion or an error of law.” Kearns by Kearns v. DeHaas, 377 Pa.Super. 200, 205, 546 A.2d 1226, 1228-1229 (1988), allocatur denied, 522 Pa. 584, 559 A.2d 527 (1989), quoting Kemp v. Qualls, 326 Pa.Super. 319, 324, 473 A.2d 1369, 1371 (1984). A trial court will not be reversed where it exercises its discretion to limit cross-examination regarding collateral matters. Chiorazzi v. Commonwealth, Dept. of Highways, 411 Pa. 397, 400, 192 A.2d 400, 401 (1963); Kearns by Kearns v. DeHaas, supra, 377 Pa.Superior Ct. at 205, 546 A.2d at 1229. In the instant case, the trial court did not err when it refused to permit the defendant to be cross-examined about the ownership of the vehicle which she was driving at the time of the accident and the agreement between her father and Kimberly Clark Corporation regarding the use of such vehicle. In Papa v. Pittsburgh Penn-Center Corporation, 421 Pa. 228, 218 A.2d 783 (1966), the Supreme Court adopted the opinion of the trial court which had held, in part, as follows:

The law is clear in Pennsylvania that a witness may not be contradicted on matters not germane to the issue involved: Commonwealth v. Burdell, 380 Pa. 43, 51, 110 A.2d 193; Zubrod v. Kuhn, 357 Pa. 200, 203, 53 A.2d 604; Commonwealth v. Petrillo, 341 Pa. 209, 19 A.2d 288. In Commonwealth v. Petrillo, 341 Pa. at 223, 19 A.2d at 295, the Court stated:

“There seems to be considerable misunderstanding on the rules of evidence relating to the contradiction of witnesses. No witness can be contradicted on everything he testifies to in order to ‘test his credibility’. The pivotal issues in a trial cannot be ‘side-tracked’ for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial. The purpose of trials is not to determine the ratings of witnesses for general veracity. A witness can be contradicted only on matters germane to the issue trying. There is no rule more firmly established than this: ‘No contradiction shall be permitted on collateral matters.’ ” (Emphasis in the original).

In the same case, 341 Pa. at 224, 19 A.2d at 295 the Court quoted from Wigmore on Evidence, 3rd ed., Vol. 3, Section 1003 as follows:

“The only true test [of ‘collateralness’] is * * * ‘Could the fact, as to which error is predicated, have been shown in evidence" for any purpose independently of the contradiction?’ ”

421 Pa. at 229, 218 A.2d at 789.³ Judged by this standard, it seems clear that the ownership of the vehicle being driven by the defendant and the agreement between her father and Kimberly Clark were collateral matters. To have allowed cross-examination regarding such matters would have served to divert the jury’s attention from the relevant issues of fault in this accident, while serving no proper purpose.

The case was well tried before an able and experienced trial judge who committed neither trial error nor abuse of discretion. The judgment entered on the jury’s verdict, therefore, must be, as it is,

Affirmed.

CAVANAUGH, J., files a concurring opinion.

1 . The jury awarded no damages to the husband-plaintiff.

2 . Kimberly Clark had been named as a defendant in plaintiffs complaint, but a motion for summary judgment in its favor had been granted pre-trial by agreement of the parties.

3 . The opinion of the trial court appears at 38 Pa.D. & C.2d 756.