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ABEE v. STAMM

August 30, 1967

Eldon ABEE, Administrator of the Estate of Andrew Bert Weigel, Jr., a/k/a Andrew B. Weigel, Jr., Deceased, Plaintiff,
v.
James STAMM and Milton J. Sokolovich, Defendants



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 The plaintiff administrator brought this diversity action under the Pennsylvania Wrongful Death and Survival Acts against James Stamm and Milton J. Sokolovich. The jury trial resulted in verdicts in favor of the plaintiff and against Sokolovich in the total amount of $70,000 and in favor of Stamm.

 The plaintiff timely moved for a new trial against Stamm. He contends that the court erred in permitting counsel for Stamm in cross-examination of Officer Dante Colaluca to elicit matters of defense to the prejudice of the plaintiff. He also contends that the court erred in failing to instruct the jury on the proper standard of care applicable to Stamm, who drove his car at night on a through highway in open country past a T-intersection.

 In my opinion the motion should be denied.

 I.

 From my examination of the testimony of Colaluca, his cross-examination did not exceed the scope of the matter brought out in direct examination.

 The tragic accident in which plaintiff's decedent was killed occurred on December 29, 1963, at about 2:50 A.M. The case involved a collision between two motor vehicles, - one driven by Stamm, the other by Sokolovich in which decedent was a passenger. Colaluca was a policeman who arrived at the scene and investigated the accident, interviewed the drivers, described the through concrete highway called Monaca Boulevard and the intersecting T dirt road called Stobo Road or Old Monaca Road. He testified on direct examination to the details of his investigation, including the measurements of the skid marks and the debris on the concrete highway which indicated the place of impact. He described the cars at rest, sketched the scene as it appeared to him after the accident indicating thereon relevant landmarks, and identified and testified to details contained in picture exhibits. The cross-examination was directed to the inferences, deductions, and conclusions which could be drawn from his direct evidence. It also elicited impeaching testimony from Colaluca (T., pp. 31-42).

 Evidence elicited by way of cross-examination which is germane to matters testified to on direct or tends to elicit what is withheld should not be excluded merely because it tends to introduce matters in defense. Cf. Henry on Evidence, vol. 2, § 817. And as stated in Conley v. Mervis, 324 Pa. 577, 188 A. 350, 354, 108 A.L.R. 160 (1936):

 
"If cross-examination is to be of any service, it must not be limited to the precise facts brought out in direct examination, but must extend to all inferences, deductions, or conclusions which may be drawn therefrom. * * * In other words, the testimony in chief, for the purpose of determining the proper scope of cross-examination, consists not only of the bare facts brought out but in addition includes all inferences or deductions which may be made from them."

 In my judgment, the items specifically objected to by plaintiff were properly overruled, but if any ruling be deemed in error, I think such was harmless within the meaning of Rule 61, Fed.R.Civ.P.

 Although not specified in the motion, plaintiff in his brief specifies as an example of improper cross-examination "the obtaining of a written statement from Defendant Sokolovich; marking it as an exhibit to be introduced into evidence; and not introducing the whole statement but reading only a portion from it TR 76 to 82." A brief explanation is called for.

 The statement referred to was taken by Officer Colaluca at the time of his investigation of the accident. The statement, as I recall, included references to Sokolovich and plaintiff's decedent stopping at a tavern after work where they stayed for a time and drank beer prior to the accident. Stamm contended that Sokolovich's drinking caused him to drive negligently, but he had no proof that Sokolovich was intoxicated. In chambers prior to trial (T., p. 79) *fn1" , I ruled that evidence or inference of drinking at this tavern would be prejudicial to Sokolovich, and that such could not be introduced under Pennsylvania law. *fn2" See: Vignoli v. Standard Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965); Cook v. Philadelphia Transportation Company, 414 Pa. 154, 199 A.2d 446 (1964); Harvey v. Doliner, 399 Pa. 356, 160 A.2d 562 (1960); Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); Critzer v. Donovan, 289 Pa. 381, 137 A. 665 (1927). Hence, at trial the objectionable portion of the statement was excluded, and the entire statement (marked Stamm's Exhibit 18 for identification) was not admitted in evidence.

 Plaintiff's only objection to the portion read to the jury was that it was a matter of defense and improper cross-examination (T., p. 78). Plaintiff did not object on the ground that the whole statement was not admitted; neither did he request that the entire statement be admitted and read to the jury. Indeed, at trial counsel for the plaintiff seemed to be in accord with the court's exclusionary ruling. See his objection on page 83 of the transcript, which objection was sustained. I think the portion of the ...


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