Appeal from judgment of Court of Common Pleas of Butler County, Sept. T., 1970, No. 125, in case of Phyllis M. Kriner, administratrix of the estate of Charles M. Kriner, deceased, v. Robert E. McDonald.
John N. Gazetos, with him C. Donald Gates, Jr., and Brandt, McManus, Brandt & Malone, for appellant.
Michael M. Mamula, for appellee.
Wright, P. J., Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. (Watkins, J., absent.) Opinion by Hoffman, J. Wright, P. J., dissents.
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Appellant contends that the trial court erred in refusing to grant him a new trial after appellee's counsel had prejudicially remarked that appellant's deceased had been under the influence of alcohol at the time the deceased was struck and killed by appellee's automobile. Appellee's counsel made these references during his examination of witnesses and in his closing remarks to the jury.
On May 16, 1970, appellee Robert E. McDonald was proceeding east on West Cunningham Street in his automobile when the vehicle struck and killed the appellant's deceased, Charles M. Kriner.
Appellant's testimony established that Kriner had left the Red Garter Motel-Bar-Restaurant just prior to his being killed. During the cross-examination of appellant's witness, Anthony Zaccari, appellee's counsel attempted to elicit information as to whether or not Kriner was under the influence of alcohol at the time of the accident. The court sustained appellant's objection to the question because appellee had not laid a proper foundation for that line of questioning. Although no further foundation was laid to establish Kriner's intoxication, appellee's counsel attempted to introduce evidence of the deceased's blood test through appellant's next witness David L. Campbell. The court again refused to permit that line of questioning. Later appellee recalled Campbell as his own witness and sought to have the blood test introduced. This second attempt likewise failed. Appellee's counsel then called Bertha Hays, a barmaid, in order to establish how long the deceased had been in the bar. The judge allowed
[ 223 Pa. Super. Page 533]
this evidence to come into the record. In order to rebut the inference that the deceased had been drinking in the bar for a long period of time, appellant's attorney questioned the waitress on whether or not she would have served the deceased another drink. She answered that she would have. In cross-examination the deceased's daughter, appellee also introduced evidence that the deceased had been hospitalized for alcoholism three or four years before the accident. This testimony was allowed to remain in the record over appellant's objection. Finally, counsel for appellee argued to the jury that Kriner was intoxicated.
The jury found that both the appellee and the deceased were negligent; thus, the appellant was denied recovery.
The general rule on the admissibility of evidence of intoxication was set forth in Morreale v. Prince, 436 Pa. 51, 53, 258 A.2d 508 (1969): "This court has long held that '. . . while proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive. . . .'"*fn1 Evidence of drinking or presence in a bar both "give rise to the insidious inference that the individual involved was intoxicated or under the influence of alcohol, which inference without some proof of intoxication has no role to play in any case." Morreale, supra.
Analogously, evidence tending to establish intoxication on the part of a pedestrian is inadmissible unless such evidence proves unfitness to be crossing the street. Pennsylvania courts have gone to great lengths to ...