Appeals, Nos. 160, 161 and 162, March T., 1952, from judgments of Court of Common Pleas of Allegheny County, July T., 1949, Nos. 1037 and 1038, in cases of Raymond N. Haas v. Andrew Kasnot and Anthony Cihal, Jr. and Anthony J. Cihal v. Same. Judgment reversed; reargument refused November 28, 1952.
C. J. Tannehill, with him Harry V. Bair, for appellants.
James J. Burns, Jr., for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ. .
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The introduction of legally inadmissible testimony at the trial of these cases necessitates a reversal of the judgments entered in favor of the defendant.
On a May evening in 1947 Anthony Cihal, Jr. was driving a Chevrolet car, wherein Raymond N. Haas and Edward Reiter were passengers, in a westerly direction on the righ-hand side of West Carson Street in Pittsburgh between the northerly street-car track and the curbstone. Andrew Kasnot, who was driving a De-Soto car in an easterly direction on that street straddling the southerly rail of the southerly street-car track, came suddenly over to the northerly side of the street and head-on into the Cihal car. Haas, who was injured by the collision, brought suit for damages against Kasnot; another suit against Kasnot was instituted by Cihal, Jr., who also was injured, and Anthony J. Cihal, the owner of the car which his son had been driving. The two actions were tried together and resulted in verdicts for the defendant.
Plaintiffs made out a prima facie case by establishing that defendant came over on his wrong side of the street and into their car. Defendant, supported by other witnesses, testified that one Louis Mike, who was driving a car on the northerly side of the street ahead of the Cihal car, pulled out to his left in order to pass a truck ahead of him, and, in so doing, either swung too far over, or skidded, into the southerly side of the street, striking defendant's car in the left rear, the impact causing it to swerve across the street and into collision with the car of plaintiffs; defendant contended, therefore, that the accident was not his fault. Plaintiffs testified that they saw no such third car alleged by defendant to have been the real cause of the accident. The principal issue at the trial, therefore, was whether three or only two cars were involved in the occurrence; a subsidiary question was raised in regard to the condition of the weather, plaintiffs contending that it was clear and the street was dry, whereas defendant claimed that it was drizzling and the roadway was wet.
Instead of producing Louis Mike as a witness defendant offered in evidence an alleged declaration made by Mike shortly after the happening of the accident. Defendant testified that two or three minutes after the collision he walked over to an officer standing nearby, and, as he did so, Mike also approached and said to him and the officer that "He was sorry, he went to pass the truck and the truck pulled out on him;" defendant thereupon had a bystander take Mike's name and address. Another person present testified that he heard Mike say that "He was sorry that he pulled out a little bit too far". The introduction of this hear-say testimony, so obviously damaging to plaintiffs' case, was not warranted on the ground that it was part of the res gestae. It would serve no useful purpose to cite and discuss the great number of decisions in this court as to whether utterances made under the particular circumstances of each case were or were not admissible in evidence under the res gestae rule. That rule, with its limitations, has been so frequently defined as to require little if any further comment; it was discussed at length in Allen v. Mack, 345 Pa. 407, 28 A.2d 783, and more recently in Commonwealth v. Noble, 371 Pa. 138, 144-146, 88 A.2d 760, 763, 764. Suffice it to say that hearsay declarations, to be admissible, must be "made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the transaction itself, ...