Fleischman v. Reading, Appellant.
Supreme Court of Pennsylvania
March 25, 1957
183 Pa. Super. 183
Order affirmed at appellant‘s cost.
Mr. Justice MUSMANNO dissents.
Ralph C. Body, with him John C. Clemmens, C. Wilson Austin, City Solicitor, and Body, Muth, Rhoda & Stoudt, for appellant.
Charles H. Weidner, with him Stevens & Lee, for appellee.
OPINION BY MR. JUSTICE MUSMANNO, March 25, 1957:
The negligence of the driver of the defendant‘s truck in this case was pronounced, flagrant, and practically uncontradicted. Halted on the wrong side of the road, he pulled out into a lane of traffic not his own, and collided with a car being driven by the plaintiff, George M. Fleischman, inflicting injuries which the jury evaluated at $20,000. The defendant municipality has appealed to this Court seeking judgment
I.
Reconstructing the accident with the testimony which best fits into the plaintiff‘s account as to how the mishap occurred (as we are required to do in an appellate review of the case), the following narrative emerges. On May 10, 1952, at about 2 o‘clock in the morning, as he was returning from an American Legion activity, the plaintiff, while driving along Lancaster Avenue in the City of Reading, observed, behind some cars parked on his right side of the road, what he described to be “a little light on the ground at the cars.” Since the light was not in his path of travel he continued on his way until, when about 35 feet away from the point which later turned out to be the place of collision, the slanting broadside of a truck loomed before him. He tried to avoid the obstacle by swinging further to his right but the interval of time and space within which to accomplish the hurried maneuver was too short, and the inevitable crash followed.
In support of its argument for judgment n.o.v. the defendant urges application of the rule announced in
In the case at bar, Fleischman did have an assured clear distance ahead of him even when he saw the light on the defendant‘s truck 100 feet away. It was only when the truck moved into the plaintiff‘s path of travel, that the assured clear distance became un-assured. By this time, however, fate‘s course had been shaped beyond man‘s alteration.
In the case of Schofield v. Druschel, 359 Pa. 630, the accident occurred when the defendant‘s unilluminated car travelling on the wrong side of the road collided with another car on its own side of the road. In the ensuing lawsuit it was argued by the defendant that the driver of the decedent‘s car was guilty of contributory negligence as a matter of law. We said: “This Court has repeatedly held that a driver at night is not bound to anticipate all possibilities. It is the
In the case of Long v. Pa. Truck Lines, Inc., 335 Pa. 236, the plaintiff was injured when his car collided with the defendant‘s which was travelling in a direction opposite to that allowed by law. The lower Court reversed a verdict returned in favor of the plaintiff, asserting that since the evidence showed that the accident happened 50 feet from a curve, the plaintiff had ample time within which to stop his car had he been operating it carefully. The Trial Court said further that: “It was his [the plaintiff‘s] duty to so drive his car that when he turned the curve he could stop it within that distance necessary to avoid a collision with what might suddenly loom up in front of him in the road after he had come around the curve.” This Court rejected the lower Court‘s reasoning and judgment, saying: “Appellant was not under a duty to anticipate that the driver of a vehicle coming in the opposite direction around the curve would occupy the center of the highway in violation of the law of the road.”
The plaintiff in this case had no way of foreseeing the zigzagging of the defendant‘s truck which was collecting garbage on either side of the street, and thus tacking like a sailing vessel moving in the face of headwinds.
II.
On May 13, 1952, that is, three days after the plaintiff had undergone a serious operation, and while his arm with a wire plunged through bones in his hand, was suspended in mid-air traction, an unintroduced man entered his darkened room in the hospital, raised the window shade, and proceeded to ask questions, to which the plaintiff, considering his pain and shock, replied to the best of his ability. When three sheets of paper had been filled with interrogations and answers, a pen was thrust into the plaintiff‘s uninjured hand and he scrawled his signature. At the trial, defendant‘s counsel cross-examined the plaintiff at length on the answers he had made in the hospital. At no time did defendant‘s counsel indicate to the Court and jury the identity of the person who was responsible for the statement. Upon redirect examination, plaintiff‘s counsel asked the plaintiff if he knew who it was who
Defendant‘s counsel moved for the withdrawal of a juror on the ground that insurance had been mentioned, to the prejudice of his client. The motion was refused and the defendant urges here that the lower Court‘s refusal to declare a mistrial constituted error which calls for a new trial.
It is quite obvious from the record that there was no attempt on the part of plaintiff‘s counsel, or on the part of the plaintiff himself, to disclose that any verdict recovered against the defendant would be paid by an insurance company. It is also obvious that the question put by plaintiff‘s counsel was one which the situation practically demanded. Defendant‘s counsel had questioned the plaintiff for 14 printed pages on what information he had given the person who wrote up the statement in the hospital, but at no time was the curtain raised on the individuality of the statement-taker, whom, if anybody he was representing, and what purpose lay behind his inquisition of the plaintiff. Was he a detective? A policeman? A statistician? A traffic consultant? Was he a phantom?
When an uninvited visitor invades a hospital room to question a sick or injured person, and the information allegedly taken from the patient is read to a jury in a courtroom, the jury should be offered some enlightenment as to the authority of the visitor who
Candor and fair dealing dictate that when an insurance company undertakes to participate in a trial to the extent that it produces a paper, allegedly signed by the plaintiff, who repudiates the paper, the insurance company should not be allowed to conceal its interest behind a misty curtain of anonymity. An in-
Allowing to every insurance investigator credit for honesty, integrity, and square dealing, he is still a partisan defending the interests of his employer to the best of his ability. Whether, in his zeal to properly represent his employer, or, whether through human error, he gives the plaintiff the worst of it in any report he makes to the insurance company, which report is later read in court, it is up to the jury to determine, between the investigator and the plaintiff, who is entitled to the greater credibility. However, before the jury can make this decision, the mask of anonymity must be lifted, and the investigator given a local habitation and a name.
In the case of Taylor v. Ross, 78 N.E.2d 395 (Court of Appeals of Ohio), the plaintiff was cross-examined on a statement taken by an insurance representative. When counsel asked the plaintiff to indicate for whom the investigator was investigating, he was not permitted to answer. The appellate Court of Ohio declared this to be error: “It is our judgment that the court committed error in refusing at that juncture to accord to the plaintiff the opportunity to explain fully the circumstances under which the statement to Mr. Heyduck was taken including his representations as to the Insurance Company . . . Manifestly the effect of the answers, unexplained, to the questions in the statement to Heyduck were most damaging to the plaintiff‘s case and many of them admitted to have been made by the plaintiff, or at least not denied by her, were indirect contradiction of her sworn testimony on material and determinative elements of her case. If, then,
The Court then made this cogent declaration: “An insurance company is not sacrosanct. It has an interest in a lawsuit in which it may be called upon to pay all or at least a part of a judgment if against the insured. That such interest may at times cause those who represent it to offend against the proprieties is not without the bounds of reason. It is appropriate and proper that a court should protect it in all of its legal rights but when, and if, a factual situation develops which, if true, establishes an overreaching on the part of its representative in securing information to its advantage, surely opportunity to show this fact will not be denied a party affected.”
On the same subject the Supreme Court of Oregon expressed itself as follows: “The statement offered in evidence not being in the handwriting of the witness, and being in some respects different from her testimony in chief, counsel for plaintiff had a right on redirect examination to disclose the interest the party writing the statement had in the matter. The answer in which the matter of insurance appeared was not responsive to the question asked. Counsel could not foresee that such an answer would be made. The answer does not show that defendant, or any one else, was insured. Counsel had a right to have the witness disclose who prepared the statement. When parties interested, either directly or indirectly, in the result of litigation, send their agents to interview witnesses and prepare statements for such witnesses to sign, the jury has not only the right to know who such agents are, but whom such agents represent, when a discrep-
In all events the answer made by the plaintiff, to which the defendant here objects, was quite an innocuous one. It did not name any insurance company, it did not say that the defendant was insured. In a similar situation, the United States Court of Appeals, Third Circuit, said: “The complaint is made that one of the witnesses mentioned an insurance company in saying to whom he gave a statement. Under the circumstances this is not grounds for a new trial. There was no statement that the insurance company was the one with which the defendant was insured and the company could as well been one who insured the plaintiff or his employer as the one who insured the defendant.” Rodgers v. Ashley, 207 F.2d 534.
An then, as a final word on this subject, it is to be observed that where a financially responsible municipality is involved, the question as to whether there is insurance coverage for liability is of but little significance to a jury.
III.
The defendant is dissatisfied with the amount of the verdict, urging that it is excessive to the point that only a new trial can correct its exaggerated character. A reading of the record fails to show that the amount is out of consonance with the nature of the plaintiff‘s disablement. The doctor‘s and hospital bills, totaling some $1,000, do not in themselves reflect the seriousness of the loss sustained by George Fleischman. While it is true that in the usual case the amount of medical expense incurred up to the time of trial offers some indication of the gravity of the damage done to one‘s physical structure, it cannot be accepted as an inflexi-
The plaintiff‘s left elbow was crushed in such a manner as to reduce the bones in that highly delicate joint to a disconnected jumble of fragments. In attempting to reconstruct the elbow, which is a highly engined piece of mechanism turning on a jewel, the doctors discovered that the most precious item in the ensemble was missing. The surgeons did the best they could, like architects seeking to construct an arch without a keystone. It was inevitable that with so indispensable a part missing, the patched-up result would not be an elbow. In a spine-chilling denouement to the story of the operation, it was revealed the next day that the missing bone was found in the automobile where the plaintiff had been sitting at the moment of the impact.
In describing the operation Dr. Impink said: “We put the bone fragments together and fixed them with some wires, Kirsten wires, with the idea of reforming this joint, but then found that one piece was absent to make a keystone of this joint. We had to discard that idea, take out the wires and discard the fragments which could not be fixed anywhere, and would have perhaps resulted in a rigid elbow, because it would all fuse as one solid structure and there would be no motion in any direction.”
He testified further: “But the problem is that the arm must work on an axis and have a good hinge, and the point of attachment of the forearm to the arm itself was missing. Because of this necessity for rounding off the end of the humerus, therefore, we were left
Not only was the elbow itself shattered. Connecting bones, muscles and ligaments were damaged. The lower portion of the humerus was fragmented. Dr. Davis Brooks testified that Fleischman cannot use his arm to pull, grasp, throw, swing, turn, or catch. The fulcrum is gone. For all practical purposes the uselessness of the arm is equivalent to an amputation. Without self-control, rigidity, hinging, or swivelling, the arm is more like a dangling appendage than it is an autonomous limb, master of self and circumstance.
Fleischman is a commercial artist. He described his work as being, prior to the accident, that of: “designing creative displays, sign work, newspaper cuts, backgrounds, decorating stages, anything in the theatrical line or in the general run of sign work.” He painted signs, designed posters, and built framework for signs. This work he can no longer perform. In the painting of signs, climbing of ladders, lettering of doors and windows, preparing of designs, and so on, the left arm is needed for grasp, balance, steadying, and direction. Destroying the usefulness of a painter‘s arm is like paralyzing the fingers of a violinist‘s hand—either hand—for one hand compresses the strings in setting the music while the other sweeps the harmony into creation.
The plaintiff suffered considerable pain during the time he was in the hospital and, for a year, he had to lie on his back with his left arm resting on a pillow.
All in all, we are of the belief that $20,000 is, in the light of the record, a fair and just verdict.
Judgment affirmed.
DISSENTING OPINION BY MR. JUSTICE BENJAMIN R. JONES:
I respectfully dissent from that portion of the majority opinion which considers the propriety of appellee‘s answer at trial to the effect that a certain statement was taken by an “insurance man” at the hospital.1 The majority opinion overlooks the fact that this answer was not made innocently or inadvertently,
The general rule on this subject,—long recognized in Pennsylvania and salutary in its effect,—is that in a negligence action the fact that a defendant is insured is irrelevant and the injection of such an issue is prejudicial to the extent that it calls for the withdrawal of a juror and the continuance of the case: Hollis v. U. S. Glass Co., 220 Pa. 49, 69 A. 55; Lenahan v. Pittston Coal Co., 221 Pa. 626, 70 A. 884; Curran v. Lorch, 243 Pa. 247, 90 A. 62; Conover v. Bloom, 269 Pa. 548, 112 A. 752; Kaplan v. Loev, 327 Pa. 465, 194 A. 653; Dively v. Penn-Pittsburgh Corporation, 332 Pa. 65, 2 A. 2d 831; Harriett v. Ballas, 383 Pa. 124, 117 A. 2d 693.
On various occasions this general rule has been subjected to certain exceptions and modifications which are not presently relevant.3 However, this rule has never been modified where there has been a deliberate attempt to inject the insurance issue into the trial. Such an attempt was disapproved in Kaplan v. Loev, 327 Pa., supra, when this court refused to countenance a cross-examination where it was “obvious that it [cross-
I would reverse the lower court‘s ruling in this respect and grant a new trial.
Mr. Justice BELL joins in this dissent.