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STAWCZYK v. EHRENREICH (12/17/59)

December 17, 1959

STAWCZYK
v.
EHRENREICH, APPELLANT.



Appeals, Nos. 123 and 125, April T., 1959, from order of Court of Common Pleas of Allegheny County, April T., 1957, No. 1916, in case of Frank Stawczyk et ux. v. Leonard Ehrenreich et al. Order affirmed.

COUNSEL

Daniel B. Winters, with him Arthur G. Stein, and Stein & Winters, for appellants.

Alexander J. Bielski, for appellees.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Wright

[ 191 Pa. Super. Page 197]

OPINION BY WRIGHT, J.

On November 23, 1956, at the intersection of Jerome Boulevard and Jackson Alley in the City of McKeesport, there was a collision between the motor vehicles of Frank Stawczyk and Leonard Ehrenreich. A complaint in trespass was filed by Stawczyk and his wife against Ehrenreich to recover personal injury and property damages. The husband was thereafter severed as a plaintiff and joined as an additional defendant in the wife's action. At the trial of the case, verdicts were returned in favor of the wife-plaintiff against Ehrenreich alone in the amount of $3,500.00, and in favor of the husband-plaintiff in the amount of $1,500.00. The court en banc subsequently granted plaintiffs' motion for a new trial. Defendant Ehrenreich has appealed.

One of the principal elements of damage claimed by appellees was that the wife had developed cancer as a result of the accident. During the course of the trial, they called Dr. Frank Bondi as a witness and qualified him as a general surgeon at the McKeesport hospital. Dr. Bondi testified that, on September 13, 1957, Mrs. Stawczyk was referred to him by her family physician; that he discovered a plum-sized lump in her left breast which he tentatively diagnosed as malignant; that, following confirmation of this diagnosis by exploratory operation and pathological examination, he performed a radical mastectomy, which involved a removal of the entire breast and the two underlying muscles, as well as the axillary tissues beneath the arm pit. It is important to note that Dr. Bondi was not questioned on direct examination concerning the casual connection between trauma and cancer. On cross-examination, appellant's counsel qualified Dr. Bondi as an expert in the field of cancer, and

[ 191 Pa. Super. Page 198]

    then asked him whether there was any casual connection between the trauma and the cancer. Over objection by counsel for appellees, the doctor was permitted to reply as follows: "My own opinion is that trauma has no stimulating effect at all upon a cancer. I don't think that trauma causes it at all... Now, there are others who feel differently on this particular point, and many people feel that it does cause the cancer". Counsel for appellees then moved to strike the testimony of Dr. Bondi with regard to casual connection as improper cross-examination, and also offered to prove by the testimony of Dr. Francis Conlon and Dr. Francis Alvin that there was a casual connection between the trauma and the cancer. The trial judge took the position that appellees were bound by the opinion which Dr. Bondi expressed on cross-examination, and were precluded from contradicting it. He refused to permit Doctors Conlon and Alvin to testify, would not admit appellees' exhibits relating to medical expenses in connection with the operation, and entirely excluded the cancer claim from the jury's consideration.

Appellant relies upon the proposition that, where the testimony of a plaintiff's experts is so conflicting as to render one of two irreconcilable inferences possible of adoption, plaintiff has failed to sustain the burden of proof. See Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104. However, that proposition does not apply in the instant case. The testimony of Dr. Bondi as to casual connection was not elicited on direct examination. While an expert may be properly cross-examined to test his competency, cf. Friday v. Pennsylvania Railroad Co., 204 Pa. 405, 54 A. 339, the cross-examination must be germane to the direct examination. "It is elementary that, unless the witness is himself one of the litigants... cross-examination of his testimony should be confined to the matters upon which he was examined in chief... It is

[ 191 Pa. Super. Page 199]

    true that considerable latitude must be left to the trial judge, and his action will not be reversed in the absence of an abuse of discretion or unless obvious disadvantage resulted therefrom to the other party": Tolomeo v. Harmony, 349 Pa. 420, 37 A.2d 511. The trial judge, writing for the court en banc, correctly acknowledged the serious disadvantage which resulted to ...


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