Appeal from judgment of Court of Common Pleas of Blair County, Jan. T., 1962, No. 123, in case of Ruth Suckling, administratrix of estate of John Harold Reik, deceased v. Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Co.
Marion D. Patterson, Jr., with him Patterson and Evey, for appellant.
R. C. Jubelirer, with him Bernard Jubelirer and James L. Jubelirer, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts.
On December 6, 1957, John H. Reik was struck and killed by a motor vehicle owned by Anna H. McKirdy*fn1 and operated by Thomas J. Collins [Collins]. The McKirdy motor vehicle was insured under an automobile liability policy issued by the Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company [insurance carrier].
Ruth Suckling, Reik's personal representative, instituted a trespass action in the Court of Common Pleas of Blair County against Mrs. McKirdy's personal representative and Collins. At trial, a compulsory non-suit was entered in favor of the McKirdy Estate and the jury returned a $30,000 verdict against Collins.
Thereafter, Reik's personal representative, instituted an assumpsit action in the Court of Common Pleas of Blair County against the insurance carrier upon the theory that the coverage of the McKirdy insurance policy extended to Collins under the policy's "omnibus clause". After a trial, the jury rendered a verdict against the insurance carrier. A motion for a new trial having been refused, judgment was entered on the verdict and from that judgment the instant appeal was taken.
The sole issue at the assumpsit trial was whether or not Collins, operator of the McKirdy motor vehicle at the time of the accident, was operating such motor vehicle with the permission of Anna J. McKirdy; if he was, the policy covered Collins. During the trial, the insurance carrier sought to call Collins as on cross-examination upon the theory that Collins had an interest
adverse to it. The trial court sustained an objection to Collins being called as on cross-examination and the propriety of that ruling is the sole reason assigned for the grant of a new trial.
Two questions now arise: (1) was Collins' interest adverse to the insurance carrier, which called him as on cross-examination, within the provisions of the Act of May 23, 1887, P. L. 158, § 7, as amended by the Act of March 30, 1911, P. L. 35, § 1, 28 P.S. § 381; (2) if Collins' interest was adverse and the trial court erred in not permitting him to be called as on cross-examination, was such error so prejudicial as to mandate the grant of a new trial?
The Act of 1887, supra, provides, inter alia: "In any civil proceeding . . . any other person whose interest is adverse to the party calling him as a witness, may be compelled by the adverse party to testify as if under cross-examination, subject to the rules of evidence applicable to witnesses under cross-examination, and the ...