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KEOUGH v. REPUBLIC FUEL AND BURNER CO. (06/27/55)

June 27, 1955

KEOUGH, APPELLANT,
v.
REPUBLIC FUEL AND BURNER CO., INC.



Appeal, No. 294, Jan. T., 1954, from judgment of Court of Common Pleas No. 2, of Philadelphia County, Dec. T., 1951, No. 1215, in case of Robert Keough, Admr., Estate of Michael Keough v. Republic Fuel and Burner Co., Inc. and John Rommuno. Judgment affirmed; reargument refused September 26, 1955.

COUNSEL

Carl E. Geuther, for appellant.

Thomas E. Comber, Jr., with him Perry S. Bechtle, and Pepper, Bodine, Frick, Scheetz & Hamilton, for appellees.

Before Stern, C. J., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 382 Pa. Page 594]

OPINION BY MR. JUSTICE ARNOLD

This is an appeal from the entry of judgment in the court below on a verdict in favor of the defendants. The action is brought in trespass and involves a motor vehicle case under the Wrongful Death Act of 1851, and the Survival Act as embodied in the Fiduciaries Act of 1949. The appeal is based solely on the refusal of the court to allow evidence as to the criminal record of John Rommuno, the driver of the Republic truck, such evidence being offered to affect his credibility.

Wilde Avenue, 23 feet 7 inches wide, and Bond Avenue, 24 feet 8 inches wide, intersect at practically right angles. The decedent, three years of age, was frightened by a praying mantis, ran into the cartway of Wilde Avenue and was struck by the defendant's truck, receiving injuries from which he died. Defendant's truck, travelling on Wilde Avenue had cleared the intersection with Bond Avenue, and travelled 28 feet 4 inches from the north curb of Bond Avenue, and the child was struck by the front of the truck. No horn was sounded and the truck went a distance of 126 feet beyond the point of impact before stopping. The truck driver stopped the truck after being told by the decedent's brother that he had hit the decedent.

A slight contradiction existed between the testimony of one Knopf and the defendant, Rommuno. This was only as to the statement of Knopf that the defendant, Rommuno, said that he thought he hit a dog, and that Knopf was there before the body had been removed. At the trial of the case it appeared that a police officer arrived shortly after the accident and took Rommuno to the police station, where he made a statement. The latter was identical in practically every respect with his testimony at trial. The issue was whether the accident was caused by the sudden darting out of the decedent or by the negligence of the defendants.

[ 382 Pa. Page 595]

The issue of credibility was collateral to the issue of negligence.

The trial was held January 11, 1954. After the defendant testified the plaintiff offered the following pleas of guilty or conviction: October, 1937, larceny; June, 1940, attempted larceny; November, 1942, assault and attempted robbery; October, 1944, receiving stolen goods; October, 1944, burglary and larceny. At the time of the trial Rommuno was but 29 years of age. It follows that he was a boy of 12 at the time of the first criminal case and 19 at the last. The trial judge excluded the offer on the ground that he had a discretion, and that the convictions were too remote in point of time. The appellant contends that he had an absolute right to introduce the criminal records against Rommuno.

It will be seen from the foregoing outline that there was nothing in the appellant's position as to the contradictions between the witness, Knopf, and Rommuno. They are of a trifling character and of no importance in this case. The real question is whether on the issue of the credibility of Rommuno as to his version of the accident, the convictions should have been admitted as a matter of absolute right.

The criminal cases cited by the appellant are of little moment. Obviously if in those cases the court had excluded evidence of conviction of the defendant, the Commonwealth could not take an appeal. And still obviously, if the defendant is convicted he certainly would not assign as error the exclusion of the evidence as to his prior criminal convictions. But in Commonwealth v. Varano, 258 Pa. 442, 446, 102 A. 131, this Court stated: "What questions may be asked on cross-examination to test the credibility of a witness is largely a matter in the discretion of the trial judge." See also D'Allura v. Perri, 138 Pa. Superior Ct. 261, 10 A.

[ 382 Pa. Page 5962]

    d 124. In Thompson v. American Steel & Wire Company, 317 Pa. 7, 11, 175 A. 541, this Court held on the question of the admission of plainly relevant testimony: "He [the trial judge] is constantly faced with questions on evidence in their special relation to the issue to be tried. He must deal with such questions in the light of the purposes of the ultimate inquiry and does so in the exercise of what is known as judicial discretion. He should see that nothing relevant is excluded, so long as its admission will not unduly distract the attention of the jury from the main inquiry. ... His conclusion or decision on such points will not be interfered with on appeal save for manifest abuse of power [discretion]. He must, therefore, determine in the first instance whether evidence which, though logically relevant on the ultimate issue, may nevertheless be excluded, because its general effect on the trial will be to confuse the issue by distracting the attention of the jury from the primary to collateral issues, or by unduly prolonging the trial, or perhaps by unfairly surprising the other side." See also Rule 303 of the Model Code of Evidence, American Law Institute, which reads in part as follows: "(1) The judge may in his discretion exclude evidence if he finds that its probative value is outweighed by the risk that its admission will. ... (b) create substantial danger of undue prejudice or of misleading the jury."

We therefore derive the rule that there is no absolute right to introduce criminal records against a defendant in a civil case, who has testified; but on the contrary it is within the discretion of the court whether such evidence will be admitted, and on appeal this discretion will not be interfered with except for its abuse. In the exercise of its discretion the trial court must view the various aspects of the trial and determine whether the probative value of the offer is outweighed

[ 382 Pa. Page 597]

    weighed by the risk that its admission will create substantial danger of undue prejudice or of misleading the jury, and must consider also the remoteness of the convictions in question from the date of the offer. Viewed in this light, the trial court was not ...


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