Appeals, Nos. 130 and 131, March T., 1956, from judgment of Court of Common Pleas of Washington County, Feb. T., 1953, No. 25, in case of Herman Wolansky v. William J. Lawson et al. Judgment reversed.
Charles G. Sweet, for appellants.
Vincent R. Massock, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This action in trespass was instituted by the plaintiff to recover damages for personal injuries and property damage suffered in a collision between his automobile and a small truck owned by the defendants and operated by their employee. The defendants counterclaimed for property damage to their vehicle. Upon trial of the issues, the jury returned a verdict for the plaintiff in the sum of $50,000. The defendants moved for judgment n.o.v. and for a new trial. The court denied the motion for judgment n.o.v. and conditioned its refusal of the motion for a new trial upon the plaintiff's filing a remittitur for so much of the verdict as was in excess of $27,399.85. A remittitur was accordingly filed and judgment was entered for the plaintiff on the verdict as thus reduced. The defendants have severally appealed.
The defendants are clearly entitled to a new trial and their motion therefor should have been granted. There was basic trial error in the court's submission to the jury of the self-repudiated testimony of two witnesses for the plaintiff and the verdict was, moreover, plainly against the weight of the evidence.
The plaintiff offered as witnesses to the collision, which gave rise to the action, two boys who wer fourteen years old when the accident occurred and seventeen at the time of trial. They testified in chief in a way that exonerated the plaintiff from fault for the collision and placed the blame on the defendants. Shortly after the happening of the accident, one of these boys had given his version of the occurrence in a written statement which was completely at variance with what both of them testified to for the plaintiff
at trial. After the witness, who had given the statement, had been cross-examined in respect thereto, the two of them together communicated (while the trial was still in progress), with a local policeman who informed defendants' counsel that both of these witnesses desired to repudiate the testimony they had given in the plaintiff's case. When this fact was made known to the trial judge, he permitted defendants' counsel to call these witnesses for the purpose of allowing them to recant their earlier testimony; and, that, they did. Notwithstanding the recantation, the court submitted the case to the jury on the basis of all of the evidence adduced by the plaintiff, including the repudiated testimony of the two witnesses. Obviously, the only substantive testimony in the case from the two recanting witnesses was what they last gave. That is true even where a witness' testimony is merely contradictory if the conflicts therein are called to his attention and he is asked and answers which of them is correct.
In Black v. Philadelphia Rapid Transit Co., 239 Pa. 463, 466, 86 A. 1066, the rule was given expression and applied in the following language: "The plaintiff's attention was called to the contradictions in his testimony and the irreconcilable statements he had made were pointed out to him and he was asked which of them were correct. His final statement of the fact is that by which his case must be judged and as it showed contributory negligence, a non-suit was properly entered." In Parker v. Matheson Motor Car Company, 241 Pa. 461, 467, 88 A. 653, Mr. Justice MOSCHZISKER recognized for this court that in the Black case "we ruled that when a plaintiff makes conflicting statements which are expressly called to his attention, his final statement of fact is the one by which his case must be judged, and if that destroys his right of action the case cannot go to the jury. ..." More recently, Mr. Justice
CHIDSEY, speaking for a unanimous court in Stewart v. Ray, 366 Pa. 134, 143, 76 A.2d 628, said that it was "a settled principle that where a witness has testified to two different versions or has made inconsistent and contradictory statements and is confronted with that contradiction, his final statement is the one which controls. [citing cases]" Cf. also Cox v. Wilkes-Barre Railway Corporation, 340 Pa. 554, 560, 17 A.2d 367, and Mulligan v. Lehigh Traction Company, 241 Pa. 139, ...