Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1959, No. 1492, in case of Sylvia Goodis, and Sylvia Goodis, executrix of estate of Bernard Goodis, deceased v. Gimbel Brothers.
Stanley M. Poplow, with him Bellis, Kolsby & Poplow, and Fineman & Fineman, for appellants.
Albert C. Gekoski, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Chief Justice Bell dissents. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this opinion.
Mrs. Sylvia Goodis sued Gimbel Brothers in trespass averring that, as a result of their negligence in maintaining a certain room in their store, she was injured. The jury returned a verdict for the defendant and the plaintiff seeks a new trial.
At the trial Mrs. Goodis testified that when she rose from a desk at which she had been working in the women's clubroom in Gimbel's, her foot entangled in an open seam in the carpet underfoot and she was thrown to the floor. She said that the rent in the carpet measured 1 1/2 inches in width and 2 1/2 inches in length. The only other person in the room at the time of the accident was a Mrs. Anne Rovner, who, called by the defendant as a witness, testified that she was not watching the plaintiff at the time of her fall and, therefore, knew nothing about the cause of her mishap.
Defendant's counsel here pleaded surprise and sought to introduce in evidence a prior written inconsistent statement made by Mrs. Rovner. Since Mrs. Rovner, in her direct testimony, had said nothing which
supported the plaintiff or damaged the defendant, defendant's counsel then explained: "I showed her the statement of July 28, which she signed, and asked her to read it. After she read it, I asked her if it was the truth at the time she signed it and she said she told the truth. I then asked her if she would repeat the information contained in this statement, and she said, 'Well, I can't remember everything; I was trying to give general statements.'"
This comment effectually lifted the arrow of "surprise" out of the defendant's counsel's quiver of attack. Since he now knew that Mrs. Rovner would not testify to the specifics of the accident and he thus could not have been astonished by what she said from the witness stand, he endeavored to disclose the contents of Mrs. Rovner's statement for the purpose of impeaching her credibility. The court indicated it would permit this, whereupon plaintiff's counsel observed: "I ask that the jury be instructed, either at the present time or in the charge, that this reading is not for the purpose of establishing the truth of what is said in this statement, but merely for the purpose of impeaching whatever it was that the witness testified to prior to this time."
The court agreed with this proposition, but added that the statement would "not necessarily . . . be considered as substantive testimony as to the manner in which the accident occurred." When the court used the phrase "not necessarily," it opened a door as wide as the breadth of the jury box for the jury to do what the court already had regarded, generally, as improper.
According to the written statement given by Mrs. Rovner to a representative of the defendant, Mrs. Goodis had fallen when she walked off the platform on which both women had been working. The intent of such a declaration, of course, would be ...