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NICHOLSON v. GARRIS (03/16/65)

decided: March 16, 1965.

NICHOLSON, APPELLANT,
v.
GARRIS



Appeals from orders of Court of Common Pleas of Mifflin County, May T., 1958, Nos. 390 and 191, and August T., 1960, No. 145, in cases of John T. Nicholson and Lida C. Nicholson v. Wilson Homer Garris and Frank J. Parr, trading and doing business as Parr Trucking Company, and Kaul Clay Products Company et al.; Beverly Baker, administratrix of estate of Roy E. Swineford, deceased, v. Wilson Homer Garris and Frank J. Parr, trading and doing business as Parr Trucking Company, and Kaul Clay Products Company; Frank J. Parr v. Beverly Baker, administratrix of estate of Roy E. Swineford, deceased.

COUNSEL

Robert B. Brugler, for appellant.

Norman L. Levin, with him Harry B. Thatcher, for appellant.

David McNitt Barron, with him Houck & Barron, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno and Mr. Justice Cohen join in this dissent.

Author: Jones

[ 418 Pa. Page 148]

On March 18, 1957, John T. Nicholson (Nicholson) was a passenger in a 1941 Ford station wagon owned and operated by Roy E. Swineford (Swineford) in a westerly direction on Freedom Avenue, Burnham Borough, Mifflin County. A collision occurred, in the vicinity of the intersection of Freedom Avenue and Logan Boulevard -- an intersection controlled by electric traffic signals -- between the Swineford vehicle and a tractor-trailer operated by Wilson H. Garris (Garris) which was travelling in a northerly direction on Logan

[ 418 Pa. Page 149]

Boulevard. The tractor was owned by Frank J. Parr (Parr), trading as Parr Trucking Company, and the trailer was owned by the Kaul Clay Products Company (Kaul). As a result of the collision, Swineford was killed instantly and Nicholson seriously injured.

As a result of this accident, three trespass actions were instituted in the Court of Common Pleas of Mifflin County: (1) an action by Swineford's personal representative against Garris, Parr and Kaul; (2) an action by Nicholson against Garris, Parr and Kaul wherein Swineford's estate was joined as an additional defendant; (3) an action by Parr against Swineford's estate. The three actions were consolidated for trial and, after a nine day trial during which the questions of negligence and contributory negligence were hotly contested, the jury returned the following verdicts: (1) verdicts in favor of Swineford's personal representative against Garris, Parr and Kaul in the amount of $30,023.50; (2) a verdict in favor of Nicholson and against Garris, Parr and Kaul in the amount of $41,753.96; (3) a verdict against Parr and in favor of Swineford's personal representative. Garris, Parr and Kaul moved for judgments n.o.v. and a new trial, the latter supported by some fifty reasons; the former were denied and the latter granted. From that order these appeals have been taken.

The court below granted a new trial because of the prejudicial effect of revealing to the jury, during the cross-examination of Parr "during the last hour of the last day of the seven days required for testimony",*fn1 that Parr had liability insurance. At trial, to expedite the proceedings, all evidence as to liability was presented first, followed by evidence as to damages. The last witness to appear was Parr who testified as to the damage sustained by his equipment. One element of

[ 418 Pa. Page 150]

    this alleged damage was the cost of sending a tractor from Parr's home base in Mt. Jewett to the scene of the accident so as to return the trailer and a tractor-trailer to retrieve the damaged tractor. Parr testified that the expense involved in these operations was $.40 and $.50 per mile respectively. On cross-examination, Parr's 1957 income tax return was produced by opposing counsel and the following colloquy*fn2 occurred: "Q. Isn't it true that your expenses exceeded your income in 1957? A. It is true. Very much so. Q. Mr. Parr, I show you your income tax return for 1957 and call your attention to Schedule C, forming a part thereof, and ask you how much that return states you paid to your drivers. . . . ...


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