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SENTZ v. DIXON (03/27/73)

decided: March 27, 1973.


Appeal from judgment of Court of Common Pleas of Lancaster County, June T., 1970, No. 40, in case of Martin L. Sentz v. Lamar A. Dixon.


Penn B. Glazier, with him William A. Atlee, Jr., and Geisenberger, Zimmerman, Pfannebecker & Gibbel, for appellant.

Lawrence J. Ruggiano, with him Frank Edward Roda, and Roda, Morgan, Hallgren and Heinly, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J. Wright, P. J., would affirm on the opinion of the court below.

Author: Spaulding

[ 224 Pa. Super. Page 71]

Appellant Martin Sentz brought this trespass action seeking recovery for injuries received when he was struck by an automobile operated by appellee Lamar Dixon. The accident occurred about 2:00 a.m. on the morning of September 8, 1968. Appellant was a pedestrian crossing Route 30 in East Lampeter Township, Lancaster County. Trial was held in the Court of Common Pleas of Lancaster County before President Judge William G. Johnstone, Jr. and a jury, resulting in a verdict for the appellee on which judgment was entered. Appellant contends, inter alia, that the trial court erred in admitting prejudicial testimony that he had been drinking without any proof of intoxication to a degree indicative of recklessness or unfitness to walk at the time of the accident.

At trial, appellant called the emergency room physician who had treated him following the accident. He testified as to appellant's medical condition, but made no reference to any hospital records. On cross-examination, counsel for appellee introduced the following

[ 224 Pa. Super. Page 72]

    portion of the hospital records, an objection having been overruled: "Q. Ready Doctor. Please read that? A. Pedestrian struck on road by automobile. Admitted with blood pressure of 90 over 60, concussion, stuperous and with alcohol on breath, bruises and contusions. History of accident not known. Q. Doctor, isn't that conscious rather than concussion? A. Yes; conscious but stuperous with alcohol on breath." (N.T. 78) The intimation that appellant was drunk having been introduced, appellant's counsel immediately sought to discredit it by the following redirect examination: "Q. Doctor, I believe you testified that this man had suffered a concussion which you diagnosed as a concussion? A. That is right. Q. A man who has been involved in an accident with this injury and these cuts, would he be stuperous? A. That is right. . . . Q. As far as you recall did he give any of the physical manifestations of being under the influence of alcohol? A. I do not see any." (N.T. 78-79) Appellee's counsel, however, reiterated the implication of drunkenness by asking, on redirect: "[I]t was the wording . . . used, alcohol on breath, this notation is not some idle scribbling?" (N.T. 79). Although the question was withdrawn upon being objected to, it obviously reiterated an inference that appellant was intoxicated.

Since Critzer v. Donovan, 289 Pa. 381, 384-385, 137 A. 665 (1927), it has continuously been the policy of our appellate courts that, while proof of intoxication is relevant where recklessness or carelessness is at issue, great care should be taken as to whether to admit evidence of drinking and the mere fact of consuming alcohol is not admissible, being unfairly prejudicial, unless it reasonably establishes intoxication. Billow v. Farmers Trust Co., 438 Pa. 514, 266 A.2d 92 (1970); Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956);

[ 224 Pa. Super. Page 73]

    had departed immediately prior to the accident, was held to be reversible error. In Billow, supra, a medical opinion that blood alcohol content of .14 had been detected in decedent's body and that this would "affect" his driving was held to have been properly excluded as insufficient to show the degree of intoxication which would prove unfitness to drive. In light of these consistent similar holdings, we cannot say that the notation of "alcohol on breath" in the hospital record here was in any way sufficient to show a degree of intoxication indicative of appellant's contributory negligence. Its admission was unfairly prejudicial and without other proof of intoxication should have been excluded.

Appellee argues that even if the above evidence was improperly admitted, there was no proper objection to it by appellant. He relies upon the recent decision in Jones v. Spidle, 446 Pa. 103, 286 A.2d 366 (1971), which involved, as here, a pedestrian struck by an automobile. Our Supreme Court there held that where appellant's counsel himself introduced medical records into evidence, he could not later complain when the notation "boy ran between parked cars -- and struck by front of truck" was read from them by appellee's counsel in his summation. The basis for this decision seems to be: (1) "evidence admitted by . . . consent of both parties is fully competent . . . although it contains otherwise inadmissible hearsay statements" ...

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