Wolansky v. Lawson

133 A.2d 843, 389 Pa. 477, 1957 Pa. LEXIS 387

• Court: Supreme Court of Pennsylvania
• Decided: June 28, 1957
• Docket: Appeals, 130 and 131
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Jones,

This action in trespass was instituted by the plaintiff to recover damages for personal injuries and property damage suffered in a collision between his automobile and a small truck owned by the defendants and operated by their employee. The defendants counterclaimed for property damage to their vehicle. Upon trial of the issues, the jury returned a verdict for the plaintiff in the sum of $50,000. The defendants moved for judgment n.o.v. and for a new trial. The court denied the motion for judgment n.o.v. and conditioned its refusal of the motion for a new trial upon the plaintiff’s filing a remittitur for so much of the verdict as was in excess of $27,899.85. A remittitur was accordingly filed and judgment was entered for the plaintiff on the verdict as thus reduced. The defendants have severally appealed.

The defendants are clearly entitled to a new trial and their motion therefor should have been granted. There was basic trial error in the court’s submission to the jury of the self-repudiated testimony of two witnesses for the plaintiff and the verdict was, moreover, plainly against the weight of the evidence.

The plaintiff offered as witnesses to the collision, which gave rise to the action, two boys who were fourteen years old when the accident occurred and seventeen at the time of trial. They testified in chief in a way that exonerated the plaintiff from fault for the collision and placed the blame on the defendants. Shortly after the happening of the accident, one of these boys had given his version of the occurrence in a written statement which was completely at variance with what both of them testified to for the plaintiff at trial. After the witness, who had given the statement, had been cross-examined in respect thereto, the two of them together communicated (while the trial was still in progress), with a local policeman who informed defendants’ counsel that both of these witnesses desired to repudiate the testimony they had given in the plaintiff’s case. When this fact was made known to the trial judge, he permitted defendants’ counsel to call these witnesses for the purpose of allowing them to recant their earlier testimony; and, that, they did. Notwithstanding the recantation, the court submitted the case to the jury on the basis of all of the evidence adduced by the plaintiff, including the repudiated testimony of the two witnesses. Obviously, the only substantive testimony in the case from the two recanting witnesses was what they last gave. That is true even where a witness’ testimony is merely contradictory if the conflicts therein are called to his attention and he is asked and answers which of them is correct.

In Black v. Philadelphia Rapid Transit Co., 239 Pa. 463, 466, 86 A. 1068, the rule was given expression and applied in the following language: “The plaintiff’s attention was called to the contradictions in his testimony and the irreconcilable statements he had made were pointed out to him and he was asked which of them were correct. His final statement of the fact is that by which his case must be judged and as it showed contributory negligence, a nonsuit was properly entered.” In Parker v. Matheson Motor Car Company, 241 Pa. 461, 467, 88 A. 653, Mr. Justice Moschzisker recognized for this court that in the Black case “we ruled that when a plaintiff makes conflicting statements which are expressly called to his attention, his final statement of fact is the one by which his case must be judged, and if that destroys his right of action the case cannot go to the jury. . . .” More recently, Mr. Justice Ohidsey, speaking for a unanimous court in Stewart v. Ray, 366 Pa. 134, 143, 76 A. 2d 628, said that it was “a settled principle that where a witness has testified to two different versions or has made inconsistent and contradictory statements and is confronted with that contradiction, his final statement is the one which controls. [citing cases]” Cf. also Cox v. Wilkes-Barre Railway Corporation, 340 Pa. 554, 560, 17 A. 2d 367, and Mulligan v. Lehigh Traction Company, 241 Pa. 139, 140, 88 A. 318. The rule is of course all the more applicable where the witness positively repudiates his earlier testimony.

It follows that the verdict for the plaintiff, which the jury was permitted under the trial judge’s instructions to find on the basis of the testimony which the witnesses for the plaintiff later recanted, cannot properly be allowed to stand.

Without the testimony given for the plaintiff by the recanting witnesses, his case was notably weak. All that was left of it was the testimony of the plaintiff himself, whose credibility was seriously impeached, his so-called res gestae statement (viz., “he crowded me”) Avhich was nothing more than a self-serving calculated declaration, and certain testimony relating to marks on the road and the position of the vehicles following the collision. Opposed to this, there was a Avealth of apparently credible testimony from disinterested witnesses indicating that it Avas the plaintiff’s negligence that caused the accident.

In passing upon whether the verdict was against the weight of the evidence, the court en banc did so in the mistaken idea that “On a consideration of whether a verdict is against the evidence, all the evidence must be read in the light most favorable to the party in whose favor the verdict is rendered: [citing Tomko v. Feldman, 128 Pa. Superior Ct. 429].” The expression in the TomJco case, upon which the court en banc relied as support for its statement, was clearly an inadvertence, motions for judgment n.o.v. and for a new trial having there been commingled for purpose of discussion. Lessy v. Great Atlantic & Pacific Tea Co., 121 Pa. Superior Ct. 440, 183 A. 657, cited in connection with the statement made in the TomJco case, was specifically limited to the consideration of a motion for judgment n.o.v. where the rule stated does apply. See footnote in Sherman v. Manufacturers Light and Heat Company, 389 Pa. 61, 68, 132 A. 2d 255, where it is correctly said that “It is sometimes erroneously contended that in considering the grant or refusal of a new trial, just as in a consideration of an appeal from the refusal to take off a nonsuit or from the entry of a judgment non obstante veredicto, all of the evidence must be taken in the light most favorable to the verdict winner. Of course this is not the correct test on an appeal from the grant or refusal of a new trial: [citing numerous cases].”

Furthermore, the verdict in the sum of $50,000 was shockingly out of line with the evidence in the case. That it was exorbitant in the opinion of the court below, is manifest from its action in directing that a remittitur be filed for so much of the verdict as was in excess of $27,399.85 on pain of the award of a new trial. Such extensive judicial paring only goes to confirm that the jury could have done little serious thinking in arriving at a just sum as representing the damages.

Judgment reversed and a new trial awarded.

Mr. Justice Cohen concurs in the result.