Scranton Gas & Water Co. v. Weston, 63 Pa. Super. 570

Scranton Gas & Water Co. v. Weston

63 Pa. Super. 570 | Pa. Super. Ct. | 1916

Opinion by

Henderson, J.,

The facts out of which this appeal arises appear in the report of a former appeal in the same case between the same parties, 57 Pa. Superior Ct. 355. One of the defenses presented was that the plaintiff through W. W. Scranton, its president, and the defendant, through W. R. Teeter and J. F. Broadbent acting for him, had entered into an agreement under which the defendant would provide a Pierce Arrow secondhand body to replace the damaged body of the plaintiff’s car and that the plaintiff was to accept this in settlement of any claim it might have for damages against the defendant; that pursuant to this agreement the defendant’s agents procured a secondhand body for which they paid $450.00 and alleged to be better than the plaintiff’s and that when the body thus purchased was tendered to the plaintiff through Mr. Scranton he refused to accept it. This agreement was denied by Mr. Scranton, his allegation being that he told Teeter and Broadbent that they might bring on the car body and that he would look at it to see whether it was satisfactory but that no agreement was made that he would take it if it was as good as was represented. The issue thus made up on this part of the *574case was whether Mr. Scranton entered into an agreement with Teeter and Broadbent to the effect that if they procured a car body as good as, or better than, the one destroyed he would accept it in satisfaction of the claim for damages. When called as a witness Mr. Scranton testified under objection as set forth in the first assignment of error in the course of which examination he gave a conversation alleged to have been had with the defendant in which Mr. Weston said to him he was tied up with a contract with the insurance company; he was not to be allowed to interfere in the case in any way; they hired their own lawyers and were to run the thing; in other words, that it was not a matter at all between Mr. Weston and himself but between him and the insurance companies. Further statements in regard to the insurance were given in the same connection. A motion was properly made to strike out that portion of the evidence relating to insurance on the car, which motion was overruled. The testimony was admitted on the ground that it was part of the conversation had by the plaintiff’s president with Mr. Weston and that as the latter had referred in his testimony to a meeting with Mr. Scranton and a conversation about the accident the whole conversation between them should be allowed. A consideration of the issue and an examination of the evidence show that the conversation related by Mr. Scranton was not at all relevant and its obvious effect was to prejudice the minds of the jurors. The testimony of Mr. Seranton as well as that of the defendant and his witnesses makes it clear that the arrangement contemplated or completed for the purchase of the Pierce Arrow body was discussed between Mr. Scranton on one side and Teeter and Broadbent on the other. It is conceded that no arrangement was made between the defendant personally and Mr. Scranton for the substitution of the car body. All of that negotiation was carried on by Teeter and Broadbent with Mr. Scranton. The testimony excepted to had no tendency to rebut the defendant’s al*575legation as to the alleged contract for the obtaining of the car body. It did however introduce a subject foreign to the issue pending and well calculated to affect the jury in a manner prejudicial to the defendant. It is very clear that the subject of insurance could not have been introduced directly by the plaintiff and we do not find anything in the testimony which makes it a legitimate subject of evidence when presented in rebuttal. Conceding that the defendant had made the statement attributed to him in regard to the insurance it was wholly an immaterial matter to be introduced into the case and its materiality could not be established by the circumstance that some reference had been made to the subject in a conversation prior to the time when the agreement set up by the defendant had been entered into. The effect of the evidence would be to shift the controversy to one between the plaintiff and the insurance company and would tend to excite prejudice against the defendant. Mr. Justice Mestrezat in Walsh v. Wilkes-Barre, 215 Pa. 226, clearly sets forth the objection to evidence of this kind as does also Mr. Justice Stewart in Martin v. Baden Boro., 233 Pa. 452. It was said by Mr. Justice Fell in Hollis v. U. S. Glass Co., 220 Pa. 49: “It has been repeatedly held in other jurisdictions that the bringing to the attention of the jury the fact that the defendant in an action for personal injuries was insured by an employers’ liability company, was cause for reversal, whether done by admission of testimony or the statement of counsel”; and in Lenahan v. Coal M. Co., 221 Pa. 626, that “The fact that the defendant in an action for personal injuries is insured in an employers’ liability company has not the slightest bearing on the issue. It is an irrelevant fact prejudicial to the defendant and its introduction by the plaintiff, whether by testimony offered by him, by statements of his counsel, by offers of proof or by questions asked witnesses or jurors under the pretense of disclosing interest or bias, is ground for reversal: Walsh v. Wilkes-Barre, *576215 Pa. 226; Hollis v. Glass Co., 220 Pa. 49. The rulings of these cases will be strictly adhered to and rigidly enforced, and no evasion or circumvention of them by indirection will be tolerated.” To the same effect is Curran v. Lorch, 243 Pa. 247. In the light of these authorities the recital by the plaintiff’s witness of his conversation with the defendant in regard to insurance against accidents was inadmissible. The rule permitting the introduction of the whole of a conversation where a part has been admitted relates to relevant conversations but not to all of the matters concerning which the witnesses may have talked. The defendant’s objection to the evidence and his subsequent motion to strike out should have been sustained. It is unnecessary to consider the other assignments of error. They relate to portions of the charge of the court which will probably not reappear in the exact form in another trial.

The judgment is reversed wdth a venire facias de novo.