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BROWN v. EDWARDS

September 30, 1966

Barbara Ann BROWN, a minor, by her parent and natural guardian, Rosalie Brown, and Rosalie Brown
v.
Robert P. EDWARDS



The opinion of the court was delivered by: LORD, JR.

 JOHN W. LORD, Jr., District Judge.

 The operator of the car in which the plaintiffs were passengers, Mr. Pendergrass, did not appear in court to testify, and, consequently, the only testimony about the manner in which the Pendergrass car was operated came from his passengers, the plaintiffs.

 The case went to the jury, and a verdict was rendered in favor of the defendant. The matter is now before the Court on the Plaintiffs' Motion for a New Trial.

 It is agreed by all parties that the only issue now before the Court is the propriety of its ruling regarding the testimony of a Eugene Boyle, an employee of an independent investigating agency which had been retained to investigate the matter by the defendant's insurance company.

 About two weeks after the accident, Mr. Boyle visited the plaintiff, Rosalie Brown, at her home and secured a statement from her. The statement was in narrative form, written in the first person singular by Mr. Boyle. It consisted of two pages, and, among other things, recited the plaintiff's recollections as to the various positions of the two cars shortly before the collision and immediately thereafter. It also contained various data concerning the plaintiffs' alleged injuries.

 Prior to formally introducing the statement into evidence, counsel for the defense used certain portions of the statement in his cross-examination of the plaintiff, Rosalie Brown. Specifically, he questioned her about her recollection concerning the positions of the two cars shortly before the accident. Initially, in her examination this plaintiff admitted that the statement contained her signature, and that the statement was correct and true. However, during a deposition in 1963 she had testified that she had observed the defendant's car shortly before the accident, whereas in the written statement she indicated that she had not seen the striking vehicle. This testimony was very important to the plaintiffs, since it was the only testimony on their behalf regarding the operation of either vehicle. Nevertheless, even after it became apparent that the defense intended to impeach the testimony of the plaintiff, counsel for the plaintiff stipulated to the introduction of the statement into evidence without the necessity of formal proof (N.T. 90-91), thus relinquishing his best opportunity to cross-examine Mr. Boyle regarding his employment and the circumstances under which the statement was taken.

 Later in the trial, counsel for the plaintiffs sought to call Mr. Boyle as his rebuttal witness ostensibly to show the nature of his employment and the various techniques used in taking such statements. Although it was not entirely clear what the plaintiffs thereby intended to rebut, the court nevertheless, in the exercise of its discretion, allowed the plaintiffs to call Mr. Boyle as plaintiffs' witness. On direct examination by plaintiffs' counsel, Boyle was searchingly questioned regarding his employment. It was brought out that he was a trained investigator, that he had taken such statements on behalf of defendant for some thirteen years, and that he specialized in the investigation of automobile accidents (N.T. 446-458). However, the plaintiffs' counsel was told by the Court that he would not be permitted to bring out the fact that Mr. Boyle had taken the statement on behalf of an insurance company.

 These rulings are now urged by the plaintiffs as a ground for a new trial.

 DISCUSSION

 In support of the motion for a new trial, counsel urges most strenuously that the recent Pennsylvania case of Goodis v. Gimbel Bros., 420 Pa. 439, 218 A.2d 574 (1966) is controlling.

 In that case the plaintiff sued for injuries she sustained when she allegedly caught her shoe in an open seam in the carpet of the defendant's store. However, the investigation by the defendant's insurance carrier disclosed a witness, a Mrs. Rovner, who initially gave a statement to the defendant's insurance investigator that the plaintiff's injury occurred when she walked off the platform on which both ...


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