207 Pa. Super. 144 | Pa. Super. Ct. | 1965
Opinion by
This appeal by the additional defendant Eugene H. Pfrogner arises from the entry of judgments for plaintiffs against both the original and the additional defendants. The action was in trespass for damages due to personal injuries and property damage caused in a collision of automobiles occurring in the following manner. Elaine Cartmel, while driving an automobile
During the course of the trial the original defendant procured a joint tortfeasors release in his favor from- the plaintiffs and filed it as part of his pleading in the case, which gives rise to one of the questions now raised in this appeal, i.e., is such a release admissible into evidence? The lower court held it was not. It is appellant’s contention that the reléase and the facts surrounding its procurement should have been admitted to enlighten the jury as to plaintiffs’ bias and prejudice and render it more capable of evaluating the testimony of the plaintiffs.
Such a release is authorized by the Act of July 19, 1951, P. L. 1130, §4, 12 P.S. §2085, ánd this release provided that it should not be construed as an admission of liability on the part of the released party. No evidence was present in the case that in any way referred to the release and it was for this reason the learned lower court refused its admission when it was offered at the conclusion of the additional defendant’s case in a general manner, the purpose of the offer be-’ ing unstated. However, at .the conclusion of the closing’ remarks of plaintiffs’ counsel, Mr. Kirshnér, counsel, for the additional defendant, stated to the court at a side-bar conference, “Your Honor, I would like to put something on the record. In closing remarks of Plain
No other objection was made about the closing remarks; nor was a motion made to withdraw a juror. It is also noted that plaintiffs’ counsel corrected Mr. Kirshner as follows, “All right, sure, and I said either, one or both in the beginning, too,” in referring to his argument as to the party or parties causing the accident.
There is serious doubt in our minds whether this question should be reviewed by us since no offer. of proof was made at the time of the offer or following the exclusion of the release before the taking of testimony ended. Generally when no foundation for complaint is laid, it will not be considered on appeal. The mere overruling of an objection is not always sufficient, to show that a party had been harmed. Philadelphia Record Company v. Sweet, 124 Pa. Superior Ct. 414, 188 A. 631 (1936); Scott v. Lindgren, 97 Pa. Superior Ct. 483 (1929). However, inasmuch as the purpose of the offer was later expressed, to impeach plaintiffs’ testimony, we shall give the matter further consideration.
The introduction of evidence is largely within the discretion of the trial judge whose judgment will not be disturbed, except for gross abuse of discretion, Stack v. Tizer, 204 Pa. Superior Ct. 203, 203 A. 2d 403 (1964), and ordinarily the decision of the trial judge as to how far proof of collateral issues will be permitted is conclusive, and will not be interfered with unless the power of the trial judge is manifestly abused.
We conclude that there was no abuse of discretion by the lower court in refusing to admit the release in question. -
Appellant also complains that he was not permitted tó cross-examiné plaintiff on her prior testimony given iñ a deposition relative to the speed or change of speed of the original defendant’s car immediately prior to the •collision; and that he was denied the privilege of cross-examining plaintiff’s physician on statements made by wife-plaintiff to him in her history of the accident and
In trying to secure from plaintiff evidence as to the speed of the original defendant’s car prior to the collision, it appeared that the plaintiff had no opportunity to observe that car for a sufficient time or distance of travel to give her a sufficient basis for expressing an opinion of speed. She was therefore incompetent to testify on the subject. The same lack of foundation appeared in her deposition. Therefore she was equally incompetent and anything she may have said therein about the speed of the original defendant’s car was incompetent. The deposition was before the court and the trial judge found and stated in his opinion, “[tjhere was nothing in the deposition which would lay the foundation for impeachment.” We cannot say the trial judge abused his discretion in denying cross-examination along this line. The same is true of the statement made by plaintiff to her physician. The statement of the law made by the lower court in its opinion meets with our approval: “While such an extrajudicial statement may be both substantive and of impeaching value, we do not believe that such extrajudicial statement could be introduced into evidence unless the proper foundation were laid. The mere fact that an incompetent statement may be contained in a doctor’s report does not of itself make such a statement admissible.” Unless it is shown that plaintiff was in a position to observe the car, she would not be qualified to testify as to the speed, and hot having so testified,, there was nothing, to impeach in .her testimony on the subject. Hád the statement in her deposition or in her history given her doctor shown that she was in a position to judge the speed of the car the situation would be different, but that is not what the appellant is seeking to refute.
Judgments affirmed.