Risbon v. Cottom

127 A.2d 101, 387 Pa. 155, 1956 Pa. LEXIS 335

• Court: Supreme Court of Pennsylvania
• Decided: November 27, 1956
• Docket: Appeals, 108 and 109
• Status: Published

Opinions

Opinion by

Mr. Justice Jones,

These appeals are from judgments entered in two separate trespass actions for damages for personal injuries said to have been negligently inflicted. The injuries in suit resulted from a head-on collision between two passenger automobiles traversing a State highway. One of the automobiles was driven by Lewis Cottom, and the other by Bernard Risbon. Each of the drivers was the sole occupant of his automobile at the time of the accident, and each sued the other for damages. The eases were tried together. The jury returned a verdict in favor of Cottom for $8,500 in the case in which he was plaintiff and also a verdict for him as the defendant in the action wherein Risbon was plaintiff. Risbon’s motions for new trial were denied and, from the judgments entered on the verdicts, he took these several appeals.

The appellant contends that the court below erred for any one of the following reasons in not granting his new trial motions; (1) in refusing to withdraw a juror, on Risbon’s motion, because a medical witness for plaintiff Cottom testified, in direct examination in chief, that, when he examined Risbon shortly after the accident, he thought he had been drinking; (2) in permitting a witness for Cottom to testify in rebuttal, over Risbon’s objection, that a week after the accident Cottom had stated to him the circumstances attending the accident — this for the purpose of restoring Cot-tom’s credibility as a witness at the trial, Risbon having testified in his case that, two weeks after the accident, Cottom had told him he had no recollection as to how the accident had happened; and (3) that the verdict is excessive.

Cottom’s medical witness, while testifying in direct examination concerning Risbon’s condition in the hospital emergency room the evening of the accident, stated that he “thought at the time he [Risbon] had been drinking.” Risbon’s counsel forthwith moved for the withdrawal of a juror and a continuance of the case on the sole ground that “There is no allegation whatever in this complaint on any such matter.” The learned trial judge refused the motion. In Critzer v. Donovan, 289 Pa. 381, 384, 137 A. 665, it was stated as something to be conceded that “in an action wherein reckless or careless driving is the matter at issue, proof of intoxication would be relevant: [citing] Alexander v. Humber, 88 Ky. 565, 6 S.W. 453, 454.” In the Annotation in 26 A.L.E. 2d 352, the Critzer case, supra, is cited and discussed as supporting the general rule which is stated to be (p. 359) that “In nearly all of the vehicle accident cases in which the question has arisen . . •., it has been held or recognised that evidence tending to prove the opposing party’s intoxication was admissible, notwithstanding the pleading failed to allege such intoxication” (Emphasis supplied).

The appellant now concedes that the testimony was not inadmissible for the reason he advanced at trial. That being so, he is not in position to assert here a different ground for its alleged inadmissibility. As Mr. Justice Chidsex noted for this court in Woldow v. Dever, 374 Pa. 370, 377, 97 A. 2d 777, “The objection now raised was not assigned as a reason for excluding the testimony when the objection was made nor included in support of plaintiffs’ motion for a new trial. The question now raised was therefore not properly before the court below and need not be considered by this Court.” The precluding rule was tersely stated in Commonwealth ex rel. Spielvogel v. Spielvogel, 181 Pa. Superior Ct. 61, 65, 121 A. 2d 888, as follows: “A party complaining on appeal of the admission of evidence objected to in the court below will be limited to the specific objection made at the trial: [citing] Huffman v. Simmons, 131 Pa. Superior Ct. 370, 200 A. 274; Pennsylvania Company v. Philadelphia Electric Co., 331 Pa. 125, 200 A. 18.” Here, also, the only reason assigned by Eisbon in his motion for a new trial why the doctor’s cited testimony should have been excluded was that “there [was] no allegation in the plaintiff’s complaint that the defendant was operating his vehicle while under the influence of intoxicating liquor.”

Despite the well-settled principle that a reason for granting a new trial which was not assigned in the court below cannot be considered for the first time on appeal (McCann v. Hedin, 377 Pa. 508, 510, 105 A. 2d 594; Keane v. Philadelphia, 360 Pa. 384, 386, 61 A. 2d 834; Dugan v. McGara’s, Inc., 344 Pa. 460, 465, 25 A. 2d 718; Gasperoni v. Datt, 341 Pa. 448, 451, 19 A. 2d 376), the appellant now urges upon us that the doctor’s opining that Risbon had been drinking should have been excluded as insufficient to prove that he was under the influence of liquor at the time of the collision.

The question which the appellant thus seeks to raise is not properl;/ before us. However, we may note in passing that, while the doctor’s opinion that Risbon had been drinking, standing by itself, was not sufficient to prove intoxication (see Critzer v. Donovan, supra), it became de minimis and, consequently, harmless. The State police officer, who saw Risbon at the hospital an hour after the accident, testified that he was boisterous, had the smell of alcohol on his breath and admitted recent drinking at Brownsville and again en route at a place just two miles from the scene of the accident. Risbon also admitted at trial that, just prior to the accident, he had travelled several miles out of his way on the wrong road in country with which he was thoroughly familiar; and he failed to account for the extra hour of .elapsed time between his departure from Brownsville and his arrival at the point of accident. Whether, under all the evidence, Risbon’s drinking had been such as to impair his ability to operate his automobile safely was properly submitted to the jury by the learned trial judge with cautionary instructions which fully satisfy the requirements specified in our more recent opinion in Fisher v. Dye, 386 Pa. 141, 148, 125 A. 2d 472. Furthermore, appellant’s counsel made no complaint of the court’s submission of the issue nor of its instructions in connection therewith.

The appellant’s objection to the testimony offered by Cottom in rebuttal was not well taken. Cottom testified in chief that Risbon had driven his automobile across the center line of the highway and had crashed head-on into Gottorn’s car. He was asked on cross-examination whether he had not stated to Risbon, upon a visit to the latter approximately fifteen days after the accident, that he had no recollection as to how the collision had happened and that his mind was a blank in such regard. Cottom admitted the visit but denied the statement thus imputed to him. Risbon, upon taking the stand, testified that Cottom had admitted to him that he had no recollection of the accident. The effect and real purpose of this testimony was to impeach Cottom’s credibility and to ascribe to him a deliberate fabrication of his testimony at trial relative to the happening of the accident. For the purpose of restoring Cottom’s credit, his counsel offered in rebuttal, and the learned trial judge admitted in evidence, the testimony of the investigating State police officer that Cottom (whom he had been unable to interrogate at the hospital the night of the accident because of his injuries and who was under oxygen for five days) had described the accident to him a week after it had happened, as follows, “I was travelling west on Route 31, about thirty-five or forty miles an hour, just as I neared the top of this hill a car came over on my side and hit me; that is all I can remember.” This state-meat was entirely consistent with Cottom’s version of the accident as related by him at trial and was properly admitted in rebuttal by the learned trial judge in the exercise of a sound discretion. It had been uttered upon a proper occasion to a proper person when its ultimate effect with respect to what transpired at a conversation that had not yet taken place could not possibly have been foreseen. Nor did the defendant object to its admission on the ground that it had been made untimely. No question, therefore, as to the effect of a lapse of time on the admissibility of a prior utterance, when offered as a consonant statement, is presented by this appeal, and no opinion is expressed in regard thereto.

The holding in Lyke v. Lehigh Valley Railroad Co., 236 Pa. 38, 47-51, 84 A. 595, directly rules the point presently under consideration. The circumstances which gave rise to the evidential question in the Lyke case (which also was an action for damages for personal injury) are so analogous to those of the instant case as to justify extended reference thereto. In the Lyke case the plaintiff testified that he received his injuries by being thrown from a flat car, upon which he was working on a railroad siding, when the car was suddenly jolted by a box car negligently put in motion by agents or employees of the defendant company. As stated in the opinion for this court, “. . . the defendant offered at least five witnesses who testified that the plaintiff had declared to them either specifically or in effect, that he was not on the car at that time. When the plaintiff was under cross-examination counsel for the defendant interrogated him as to whether he had not stated to these witnesses that he was not on the car [at the time of the jolting] .... The plaintiff denied all this, but witnesses for the defense testified, in substance, to the matters suggested in the cross-examination. . . . Under these circumstances the plaintiff offered [in rebuttal] the witness in question to prove that he had stated immediately after the accident (almost two years before the institution of his suit and more than five years before the trial), that he was injured upon the car. ‘This for the purpose of showing that his testimony in this suit was not a fabrication of recent date.’ ”

The trial judge admitted the rebuttal testimony in the LyJce case, and this court approved the ruling. In so doing, Mr. Justice Moschziskhr, speaking for the court, said that “the testimony of numerous witnesses for the defendant to declarations by the plaintiff contrary to his evidence given at the trial . . . could well be taken as conveying the charge that the plaintiff’s testimony was not the story told by him from the time of the accident but one concocted for the purpose of the trial, or what is known in the law as a recent fabrication . . . .” After quoting with approval the applicable rule as “well-stated” in State v. Parish, 79 N.C. 610, 614, Mr. Justice Moschziskhr noted that most of the cases on the point of the admissibility of consonant statements to rehabilitate the credibility of impeached witnesses are reviewed by President Judge Rice in Commonwealth v. Kay, 14 Pa. Superior Ct. 376, and again in Commonwealth v. Miller, 31 Pa. Superior Ct. 317. For a further extended review of the authorities upon the character and method of impeachment which justifies the admission of evidence of consonant statements, see also opinion of Judge Moschzisker for the Court of Quarter Sessions of Philadelphia County in Commonwealth v. Mosier, 13 Pa. D.R. 421.

An admissible consonant statement, as defined in the Lyke case, supra, 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). More recently, we have recognized and applied the rule in Commonwealth v. Westwood, 324 Pa. 289, 306, 188 A. 304. Compare also Commonwealth v. White, 340 Pa. 139, 143, 16 A. 2d 407, where the rule was again referred to approvingly, but the consonant statement, there offered, was properly excluded because the impeached witness admitted having made the impeaching statement.

The appellant further complains that the trial court did not instruct the jury that the State policeman’s testimony in rebuttal as to what Cottom had told him in the hospital a week after the accident concerning the manner of its occurrence was not substantive proof of the facts therein contained but was designed merely to support Gottorn’s credibility against the imputation that his testimony at trial respecting the happening of the accident was a recent fabrication. Such an instruction should, of course, have been given: see, e.g., Lyke v. Lehigh Valley Railroad Co., supra, at p. 51. But, counsel for appellant stood silently by and made no request for an instruction in such regard even when, at the conclusion of the charge, the learned trial judge specifically inquired whether he had “missed anything as a matter of law” and, again, repeated the inquiry. “The rule that an appellate court will not grant a new trial on the ground of inadequacy unless there is omission of something basic or fundamental, is especially applicable where the complaining party was invited to suggest additions to or modifications of the charge and remained silent”: Pryor v. Chambersburg Oil and Gas Company, 376 Pa. 521, 530-531, 103 A. 2d 425. Not only did counsel for appellant make no response to the trial judge’s repeated inquiry but, in subsequently excepting to the charge, he failed to call to the court’s attention that it had not explained to the jury the scope and purpose of the State policeman’s testimony in rebuttal embracing Gottorn’s prior consonant statement. Nor did the appellant later, in his motion for a new trial, assign the trial court’s obviously inadvertent omission in the premises as a reason for a new trial. So far as the record and briefs disclose, the point was never argued in the court below but was raised for the first time in this court; and that is too late: McCann v. Hedin; Keane v. Philadelphia; Dugan v. McGara’s, Inc.; and Gasperoni v. Datt, supra.

The appellant’s assertion that the verdict is excessive is baseless. The learned court below had no difficulty in concluding that the severe, painful and permanently inconveniencing injuries, which the plaintiff suffered, and the substantial expenses for medical, surgical and hospital services to which he was put justified the amount of the verdict. The record is barren of anything that would warrant us in holding that the court below, in so concluding, was guilty of a clear abuse of discretion.

Judgment affirmed.