UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: September 4, 1973.
CAESAR MILES, ADMINISTRATOR OF THE ESTATE OF MICHAEL E. MILES, DECEASED, APPELLANT
WILLIAM F. RYAN JR., FRANK WELLS A/K/A FRANK KINGS COACH INN RESTAURANT CO. ALSO KNOWN AS THE COACH INN
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Biggs, Van Dusen and Gibbons, Circuit Judges. Biggs, Circuit Judge, dissenting.
Author: Van Dusen
VAN DUSEN, Circuit Judge.
Plaintiff*fn1 appeals from a district court judgment for defendant Ryan entered on the jury's verdict finding the plaintiff was contributorily negligent in a diversity,*fn2 survival and wrongful death action. Plaintiff contends that the jury's verdict was against the weight of the evidence, that the district court erred when it excluded evidence of drinking on the part of one of the defendants*fn3 prior to the accident, and because the district court committed numerous errors in its charge.*fn4
The accident causing the decedent's death occurred on December 17, 1965, on the Pennsylvania Turnpike, west of the Valley Forge service area. Decedent and two passengers were returning home to South Bend, Indiana, at the end of a vacation (N.T. 40). Just prior to the accident, decedent had had difficulty with his vehicle and had pulled into a service area for repairs. In the service area decedent was warned by a State Trooper, Officer Bigus, that the left rear light on the vehicle was not functioning and that he should have the light repaired before continuing on the Turnpike (N.T. 44, 216-18). After fixing the faulty light, the decedent drove a short distance on the highway when the car started to malfunction. The decedent and the occupants decided to attempt to back the car back to the service area (N.T. 46). Shortly thereafter the decedent's car was struck in the rear by the car driven by defendant Ryan.
Both parties agree that if decedent's vehicle was on the travelled portion of the Turnpike at the time of the accident, such evidence would sustain a finding of contributory negligence. However, there was sharp disagreement as to the position of the vehicle at the time of the impact. One of decedent's passengers claimed that the decedent's car was off the travelled portion of the highway (N.T. 51), but admitted that this was in contradiction to a statement he made to Officer Bigus immediately after the accident (N.T. 59-60, 64). Another witness for the plaintiff, who came to the scene after the accident, also testified that the car was off the highway (N.T. 79, 80). Defendants Wells and Ryan both stated the vehicle was partially on the highway (N.T. 159, 184-85). The defendants' testimony was corroborated by Officer Bigus, who gave his expert opinion that the point of impact was on the travelled portion of the highway (N.T. 227, 228).
It is not for this court to resolve the seeming inconsistencies in the testimony, but rather for the jury, since it is their function to weigh the testimony and the inferences to be drawn from the evidence. See, e.g., Continental Air Lines, Inc. v. Wagner-Morehouse, Inc., 401 F.2d 23 (7th Cir. 1968); Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129 (3d Cir. 1965). A motion for a new trial, based on the ground that the verdict was against the weight of the evidence, is "addressed to the sound discretion of the trial judge and its denial is not ordinarily reviewable on appeal." Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 482 (3d Cir. 1965); Sokol v. Gussack, 367 F.2d 576 (3d Cir. 1966) (per curiam). After a careful review of the record, we do not believe the district court abused its discretion when it stated:
"It is this court's view that there is ample testimony on the record, if believed, to support the jury's finding of contributory negligence."
338 F. Supp. at 1066.
The plaintiff next contends that the district court erred when it excluded evidence that Wells had been drinking at some undisclosed time prior to the accident. Plaintiff's counsel, in chambers, offered the following:
"Mr. Wells told Officer Bigus that he had five to seven 'V-O's' and water to drink within a two-hour period. . . when he asked if he had anything to drink.
"There will be testimony that he had five to seven shots of whiskey.
"I offer the testimony of Officer Bigus about the five to seven 'V-O's' and water within a two-hour period." (N.T. 140, 143, 146)
We note that this offer of proof was made with the intention to impeach the credibility of defendant Wells, whom plaintiff's counsel planned to call even before he had had a chance to see if he could prove his joint venture theory through the testimony of the next witness, Ryan,*fn5 and before he knew whether defense counsel would call Wells.
This offer was never renewed after Ryan had completed his testimony. Specifically, it was not renewed before, during, or after the testimony of Wells.
It is the rule in Pennsylvania that "intoxication on the part of a witness at the time of an occurrence about which the witness has testified is a proper matter for the consideration of a jury affecting his credibility." Commonwealth v. Rouchie, 135 Pa. Super. 594, 7 A.2d 102, 107 (1939); Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); Commonwealth v. Godfrey, 177 Pa. Super. 640, 112 A.2d 434 (1955). However, the Commonwealth courts caution that "while proof of intoxication is relevant where recklessness 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." Fisher v. Dye, supra at 476; Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); see also Kriner v. McDonald, 223 Pa. Super. 531, 302 A.2d 392 (1973); Sentz v. Dixon, 224 Pa. Super. 70, 302 A.2d 434 (1973).*fn6 A similar standard of proof (drinking intoxicating liquors reasonably establishing a degree of intoxication proving inability to accurately observe and remember events in the testimony) is required when the issue is the credibility of a witness. Commonwealth v. Godfrey, supra 112 A.2d at 436.*fn7
In an earlier suit we recognized the rule followed in Pennsylvania when we stated in Gensemer v. Williams, 419 F.2d 1361, 1363 (3d Cir. 1970):
"Actually, the Pennsylvania courts hold that the mere fact of drinking intoxicating liquors is inadmissible unless it reasonably establishes a degree of intoxication which proves unfitness to drive, Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956). Such evidence is considered so prejudicial that the Pennsylvania Supreme Court has stated that a 'wise' procedure in a case where evidence of drinking is offered is for the court first to hear all the testimony out of hearing of the jury in order to determine whether it is sufficient to meet the above-mentioned standard. See Vignoli v. Standard Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965), wherein the Supreme Court of Pennsylvania noted, 'The trial court wisely heard the testimony relative to Crise's alleged intoxication out of the jury's hearing. In circumstances where the jury could not reasonably reach a finding of intoxication, it is highly prejudicial to permit it to hear evidence bearing on the subject' (see 210 A.2d at 273)."
The district court properly considered, out of the hearing of the jury, whether the offered evidence reasonably established a degree of intoxication, which affected the capacity of Wells to observe and remember. We cannot find on this record that its finding that plaintiff failed to lay the proper "foundation showing an actual state of intoxication in accordance with the salutory rule of Fisher" (338 F. Supp. at 1067) is reversible error.
In reaching this conclusion, the court may have been influenced by the deposition of Frank Wells, filed in the district court on April 23, 1971. In that deposition, Wells reported that he only had three "V.O's" and water, and that he had been able to verify the quantity specifically because after the accident "when I went . . . to pay the tab . . . it was my tab night. And I know exactly what was on it. And I talked to the guy, and he showed me exactly what we had" (Doc. 32 at 20-21). He further stated that the statement given to Officer Bigus was made in the hospital, while in a great deal of pain, and in an effort to have the Trooper leave him alone (Doc. 32 at 29-31).
At the point in the trial when plaintiff sought to introduce his evidence, the probative value of an admission by Wells that he had been drinking, without the proper foundation that the quantity he had consumed demonstrated an incapacity on his part to observe and remember details at the time of the accident, would have been far outweighed by the unfair prejudice that would have resulted, since the jury might have imputed the drinking by Wells, to the driver, Ryan. See Harvey v. Doliner, 399 Pa. 356, 160 A.2d 562, 565 (1960), where the Pennsylvania Supreme Court recognized the danger of allowing "the trial to drift on a tide of alcoholic debate far away from the principal issue as to who was responsible for the accident in which the plaintiffs were allegedly injured." It is well recognized that evidence may not be admitted where its prejudicial effect outweighs its probative value. See McCormick, Law of Evidence, § 185 (2d ed. 1972); 1 Wigmore, Evidence, § 29 (3d ed. 1940). The prejudicial effect of testimony concerning drinking by Wells on the day of the accident that would suggest to the jury that Ryan had also been drinking would be contrary to these recognized authorities.
Furthermore, even if the trial court was incorrect in its determination that plaintiff's offer of proof failed to demonstrate intoxication, we believe that its exclusion was not reversible error, since the court's refusal to admit the offered evidence did not affect the substantial rights of the parties. See F.R. Civ. P. 61. The record makes clear that the statements of Wells were merely supportive of the testimony given by Ryan and Officer Bigus.
Plaintiff also alleges that the trial court erred in several points of its charge to the jury. After examining the record and the charge as a whole, it is our opinion that it fairly and adequately submitted the issues in the case to the jury. See Ely v. Reading Co., 424 F.2d 758, 760-61 (3d Cir. 1970).
Therefore, the judgment of the district court will be affirmed.*fn8
BIGGS, Circuit Judge, dissenting.
Although I agree with the majority's statement of the relevant Pennsylvania law as to the admissibility of evidence of intoxication, I cannot agree with their application of that law to the facts of this case. The plaintiff laid a sufficient foundation to warrant the admission of evidence concerning Wells' drinking which would have served to impeach Wells' credibility. The evidence was not only admissible under Pennsylvania law*fn1 and the Federal rule permitting impeachment of one's own witness when that witness is an adverse party,*fn2 but its exclusion constituted reversible error because Wells' credibility was a crucial issue in the case. In view of the provisions of Rule 43, the majority opinion in supporting the refusal of the district court to receive this evidence apparently relies primarily on what appears to be an arbitrary requirement as to order of proof for I believe my Brethren would concede that the question would have been a proper one on cross-examination. In my view, the plaintiff's attorney made a sufficient, though inartistic, record of the excluded evidence in accordance with Rule 43(c), F.R. Civ. Proc., 28 U.S.C. Since the learned trial Judge took a most negative position in his statements excluding this evidence, the plaintiff was not required to pursue the matter further. In view of Rule 43(b), the majority opinion seems dedicated to an overfine adherence to the order of proof.
Pennsylvania courts have consistently held that intoxication on the part of a witness at the time of an occurrence about which he has testified is a proper matter for the jury's consideration as affecting his credibility. Commonwealth v. Rouchie, 135 Pa. Super. 594, 7 A.2d 102 (1939); Commonwealth v. Godfrey, 177 Pa. Super. 640, 112 A.2d 434 (1955). The prejudicial nature of evidence bearing on intoxication has been recognized, however, in circumstances where the jury could not reasonably reach a finding of intoxication. See Gensemer v. Williams, 419 F.2d 1361 (3 Cir. 1970). For example, where the issue is whether a driver operated his automobile in a negligent manner, Pennsylvania courts rule evidence of intoxication inadmissible unless it reasonably establishes a degree of intoxication which proves unfitness to drive. Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956).
The statement of law set out in note 6 of the majority opinion is indubitably correct but what follows herein must be added. The same standard of proof must be required when the issue is the credibility of a witness, i.e., the drinking of intoxicating liquors must reasonably establish a degree of intoxication which proves inability to accurately observe and remember events, for "whether one may have partaken of some liquor is not a test of one's credibility and is the type of question . . . that may create in the minds of some jurors a most unfavorable inference." Commonwealth v. Godfrey, supra at 644, 112 A.2d at 436.
In the case at bar, plaintiff's counsel offered to prove that "Mr. Wells told Officer Bigus [the police officer who investigated the accident] that he had five to seven 'V.O.'s' and water to drink within a two-hour period . . . when he asked if he had anything to drink. . . ." (Emphasis added.) Plaintiff's counsel went on to say, ". . . That's under oath by the police officer." He then stated, "I offer the testimony of Officer Bigus about the five to seven 'V-O's' and water within a two-hour period."*fn3
As stated in the majority opinion, the trial court did not believe that the plaintiff had established a sufficient foundation showing an actual state of intoxication. The district court reasoned, ". . . You are just going to say he had drinks. Therefore, his observations are bad. I would think that you would have to give some observations made by somebody of his condition other than the fact that he had six drinks."
I cannot agree with the district court's statement. As this court said in Parker v. Reading Company, 363 F.2d 608, 610 (3 Cir. 1966), ". . . The district court seems to have been persuaded that under Pennsylvania law eyewitness testimony of conduct and condition at the time in question is the only way in which intoxication may be proved in a civil case. We have examined the cases but have not been able to discover or infer such a rule." The more recent Pennsylvania cases are not to the contrary. I believe that evidence of excessive alcohol consumption may be in itself sufficient to prove the requisite degree of intoxication. See Cook v. Phila. Transportation Co., 414 Pa. 154, 199 A.2d 446 (1964). While the consumption of "two 7 ounce beers" within the preceding two-hour period would not be sufficient proof, Gensemer v. Williams, supra, eventually the point is reached at which the large number of drinks consumed leads to the logical conclusion that the person was intoxicated.
The statement appears in some of the Pennsylvania decisions that "drinking of intoxicating liquors, in itself, does not prove unfitness to drive." See e.g., Balla v. Sladek, supra 381 Pa. at 93, 112 A.2d at 160. But it is clear from the cases that this statement can only be taken to mean that mere evidence that the person had something to drink is not sufficient, for the concern is that "the word 'drinking,' where alcohol is involved, carries the inevitable connotation of considerable drinking. Certainly, no one familiar with the idioms of current language would say of a person, who had consumed a single glass of beer, that he had been 'drinking.' And yet, in technical correctness, the swallowing of the smallest quantity of a beverage would be 'drinking'. If a witness were asked: 'Did you do any drinking?' he would be required to answer 'Yes', even though the extent of his tippling did not go beyond a glass of the mildest ale. Thus it is that the rules of evidence, in the interests of fairness, require a cross-examiner to approach the question of intoxicating liquor with circumspection and maximum appreciation of the misconceptions which can so easily be created on the subject." Wentworth v. Doliner, 399 Pa. 356, 360-361, 160 A.2d 562, 565 (1960) (Emphasis in original).
Thus the question here becomes whether five to seven drinks of whiskey within a two-hour period one-half hour prior to the collision is a sufficiently large enough number of drinks to reasonably establish Well's inability to accurately observe and remember the circumstances surrounding the collision.*fn4 I believe that it is, and the jury should have been allowed to consider the evidence in judging Wells' credibility.
Although Wells' testimony would have been supportive of that of defendant Ryan's as to how the accident occurred, I cannot deem the evidence of Wells' drinking such a large amount of alcohol in such a short length of time not to be highly relevant in respect to the credibility of his testimony. Wells' evidence went not only to the support given Ryan's testimony but was also very relevant on the issue of contributory negligence. And credibility indeed was a most important factor, as the outcome hinged on which witnesses the jury believed concerning the location of the vehicle. It is difficult to conceive how the plaintiff's case was not seriously prejudiced by the failure to receive this evidence of Wells' heavy drinking. Under the circumstances, the amount of liquor Wells had drunk seems to me to be proper impeachment evidence.
For the reasons stated, I must respectfully dissent.