JONES v. Spidle

286 A.2d 366, 446 Pa. 103, 1971 Pa. LEXIS 607

• Court: Supreme Court of Pennsylvania
• Decided: December 29, 1971
• Docket: Appeal, 655
• Status: Published

Opinions

Opinion by

Mr. Justice Egberts,

Appellants argue that they are entitled to a new trial because of alleged abuses of discretion by the trial court. We find no such error and affirm the judgment.

On January 6, 1965, Jeffrey J. Jones, then three years old, was struck by a Volkswagen delivery truck owned by the appellees. The accident occurred on a one-way street in a residential neighborhood. At the time of the accident there were two cars parked on the right side of the street. An action of trespass was brought by appellants, as parents and natural guardians of Jeffrey and in their own right, to recover for Jeffrey’s injuries. At the first trial, the trial court entered a compulsory nonsuit but was reversed on appeal by the Superior Court and a new trial was awarded. Jones v. Spidle, 213 Pa. Superior Ct. 81, 245 A. 2d 677 (1968). Trial was again held and resulted in a verdict for appellees. This appeal followed the denial of new trial motions and the entry of judgment on the verdict.

As part of appellants’ case on damages, Jeffrey’s medical records were introduced into evidence under the hospital record exception. Included in these records was this statement: “boy ran between two parked cars—and struck by front of truck.” During his jury summation, appellees’ counsel, over objection, read this statement to the jury to support his theory of the accident.

The trial court ruled that, since the appellants introduced the hospital records into evidence, it was proper for appellees’ counsel to comment on everything contained in the hospital records. The trial court also sustained appellees’ objection to appellants’ counsel’s statement, made in his summation to the jury, that the damaging passage in the hospital records was hearsay and not reliable, and refused to give a charge to the jury to the same effect. Appellants argue that these rulings constituted an abuse of discretion. We do not agree.

It is well established that hearsay evidence, admitted without objection, is accorded the same weight as evidence legally admissible as long as it is relevant and material to the issues in question. Commonwealth v. Boden, 399 Pa. 298, 308, 159 A. 2d 894, 899-900 (1960) ; Stevens v. Reading St. Railway Co., 384 Pa. 390, 395, 121 A. 2d 128, 131 (1956) ; Poluski v. Glen Alden Coal Co., 286 Pa. 473, 476, 133 Atl. 819, 820 (1926) ; Schade v. Milk Control Comm’n, 196 Pa. Superior Ct. 14, 17, 173 A. 2d 647, 648 (1961). Furthermore, evidence admitted by stipiüation or consent of both parties is fully competent and accorded full weight although it contains otherwise inadmissible hearsay statements. Caranta v. Pioneer Home Improvements, Inc., 81 N.M. 393, 396, 467 P. 2d 719, 722 (1970) ; Goldthwaite v. Sheraton, 154 Me. 214, 145 A. 2d 362 (1958) ; Bernstein v. Alameda-Contra Med. Assoc., 139 Cal. App. 2d 241, 251, 293 P. 2d 862, 868 (Dist. Ct. App. 1956). Likewise, a motion to strike inadmissible testimony on the ground of incompetency of the witness mil be denied if it is made after direct and cross-examination have been completed and the party had reason to know of the witness’ incompetency to testify. Lynch Estate, 427 Pa. 476, 479, 235 A. 2d 412, 414 (1967) ; McGary Estate, 355 Pa. 232, 236, 49 A. 2d 350, 352 (1946) ; Heller v. Fabel, 290 Pa. 43, 50, 138 Atl. 217, 219 (1927).

Once evidence is admitted, it is well settled: “Where either party to a proceeding discovers at any time that improper testimony has been inadvertently admitted, he may have the error corrected by applying to the court to have the evidence stricken. ... As a rule, such motion will be allowed only in cases ivhere the ground of objection was unknown and could not have been known with ordinary diligence at the time the evidence toas received. . . . The matter is ivithin the discretion of the trial judge.” (Emphasis added). Henry, Pennsylvania Evidence §738 (1953) ; see also, 5 Standard Pennsylvania Practice §447 (1958). Here the party could have easily discovered and deleted or requested the trial court to delete the hearsay statement in question. In light of appellants’ failure to do so, the trial court clearly did not abuse its discretion in refusing appellants’ request to withdraw this evidence. It follows that the trial court correctly denied appellants’ charge informing the jury that the statement is unreliable hearsay, meriting little weight, and also correctly sustained the appellees’ objection to appellants’ attempt to comment on the hearsay nature of the statement.

The appellants also allege as error the trial court’s refusal to permit the use of a diagram during the testimony of a police officer. The trial court ruled that the diagram was inaccurate and that the evidence it contained had already been introduced into the record. These matters are always left to the discretion of the trial court. Tolbert v. Gillette, 438 Pa. 63, 66, 260 A. 2d 463, 465 (1970); Vanic v. Ragni, 435 Pa. 26, 31, 254 A. 2d 618, 621 (1969). We can find no abuse of discretion on this record.

The appellants also contend that it was error to receive into evidence the appellee-driver’s statement to the police, made shortly after the accident. The statement was originally used by the appellants in cross-examination of the driver when they reminded him that he originally told the police that “the first time that [he] saw [Jeffrey was] when he was right out in the street and he was about even with the right front of [his] truck.” The court permitted the appellees to introduce the whole statement into evidence under the principle enunciated in Weaver v. Welsh, 325 Pa. 571, 575, 191 Atl. 3, 6 (1937), that “where a party undertakes to prove an admission of another party, he must give the whole admission, and if a portion of it serves the party who made the admission, he must not leave it out; the whole must be for the consideration of the jury.” The court’s ruling was correct.

Judgment affirmed.

Mr. Justice Eagen dissents. Mr. Justice Cohen took no part in the decision of this case.