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decided: December 11, 1973.


Appeal from order and judgment of Court of Common Pleas of Bucks County, May T., 1964, No. 3517, in case of Herman L. Eldridge and Delta N. Eldridge, his wife v. Lester Melcher and Elmer O. Strouse.


Richard P. McBride, with him James C. Bowen, and Power, Bowen & Valimont, for appellants.

Alan D. Williams, Jr., with him R. Kirkland McQuiddy, Roger N. Rosenberger, and Williams and Glantz, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, J. concurs in the result. Dissenting Opinion by Spaeth, J.

Author: Hoffman

[ 226 Pa. Super. Page 383]

The instant appeal from a denial of post-trial motions involves some unusual legal issues and tragic consequences of an automobile accident.

On August 1, 1963, at approximately 2:30 p.m., the wife-appellee, Delta N. Eldridge, accompanied by her two youngest children, was traveling in a northerly direction along U. S. Route 611. As she rounded a curve in the two-lane roadway, a truck proceeding in a southerly direction collided with her vehicle. The collision caused the vehicles to spin around, overturning the truck, virtually demolishing the automobile, and leaving both vehicles off their respective sides of the road. The two children, who were passengers in appellee's car, were thrown from the car and sustained fatal injuries. The wife-appellee suffered compound fractures in several portions of her body. As a further result of the accident, she suffered retrograde amnesia, and underwent protracted psychiatric and psychological treatment.

Wife-appellee and her husband instituted suit against the driver and owner of the truck on September 2, 1964.*fn1 At a deposition, taken in January of 1965, involving the same factual situation but in a separate action, the wife-appellee testified that her memory was a "blank". At a pre-trial conference before the Honorable Lawrence A. Monroe, on December 18, 1969, plaintiff's counsel stated that his client (who was not present at this conference) could not remember the facts

[ 226 Pa. Super. Page 384]

    surrounding the accident. Undoubtedly basing a portion of his Pre-Trial Order on this oral statement by counsel, the trial judge stated that "the Plaintiff . . . no longer recalls circumstances of accident."

At time of trial, the only direct testimony concerning its occurrence was provided by the wife-appellee. There were no eyewitnesses to the accident. Mrs. Eldridge testified that it was raining and the roadway was wet. She stated that her visibility was unimpaired. She said that as she rounded the curve, staying on her side of the road, a truck, traveling at a speed of about 35 miles per hour, crossed over to the wrong side of the road and struck her car. On cross-examination, defense counsel asked the wife-appellee when it was that she began to remember. The colloquy was as follows: "Q. When did you tell your attorney that you started to remember things? A. Around '68. Q. It was 1968 that you told your attorney that you started to remember things; is that correct? A. Yes."

Defense counsel offered the testimony of Dr. Joseph Robinson, a physician specializing in psychiatry and neurology, who had examined the wife-appellee four days prior to trial. He stated that in his medical opinion a person suffering from retrograde amnesia would regain her memory within 30 days or not at all. In his examination of the wife-appellee, Dr. Robinson evoked a statement by Mrs. Eldridge that her mind was a "blank" with respect to the accident in question. He stated: "I asked her if she recalled the accident actually happening. She said she did not remember the accident happening, and that her last memory was that she was talking to her children minutes prior to the accident, and her next memory is that she woke up at the Abington Hospital." When asked how it was that plaintiff could recall at trial the accident when four days prior thereto she could not remember those circumstances, Dr. Robinson replied: "Well, it is not actual recall.

[ 226 Pa. Super. Page 385]

What it is, is a matter of piecing together bits of information about the accident that come from a variety of sources . . . to create a story, especially if such a story helps her to absolve her own self or her own feeling of guilt."

In rebuttal, plaintiff's attorney called Dr. Albert M. Honig, a psychiatrist, who testified that amnesia suffered as a result of the kind of trauma which the plaintiff experienced could dissipate over a period of time. He further stated that there was no way to pinpoint a time period for recall, but that it could come at any time, and as a result of a number of emotional and psychological factors, including "domestic split-up" (as occurred between the parties, allegedly as a result of the death of the two children) or "expectancy of litigation" with regard to this accident.

At the conclusion of the defendants' case, defense counsel made the following request: "Mr. Bowen: I would like to offer into evidence, if the Court please, by a statement by the Court to the effect that the pretrial order of December 1969 reveals that the plaintiff did not have a recollection as to the circumstances of the accident."

The trial judge, who was also the pre-trial conference judge, denied the offer of proof. On November 12, 1970, the jury returned a verdict in favor of the plaintiff in the amount of $150,000 against both defendants. Motions for judgment n.o.v. and for a new trial were denied. This appeal has followed.

Scope of Review in Appeals From Denial of Motions For Judgment N.O.V. and For a New Trial

As a reviewing court, we face two separate and distinct questions when deciding the propriety of a lower court's ruling denying motions for judgment n.o.v. and for a new trial. A judgment n.o.v. is the directing

[ 226 Pa. Super. Page 386]

    of a verdict in favor of the losing party, despite a verdict to the contrary. It may only be entered in a clear case where the evidence is insufficient to sustain a verdict against him. Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). Judgment n.o.v. is inappropriate if the evidence on a material point presented an issue of fact for decision by the jury. This method of attacking the verdict may never be utilized so as to invade the province of the jury, especially where that determination is based partly on questions of conflicting testimony and credibility of witnesses. Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 207 A.2d 843 (1965); Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962). Where such questions were determined by the trier of fact, and if there is reasonable support for the verdict which was rendered, a judgment n.o.v. will not be granted, as the weight of the evidence is a jury matter and may only be raised by a motion for a new trial if the verdict is contrary to the weight of the evidence. As to whether there is reasonable support in the evidence for the verdict, it should be noted that the evidence may be found sufficient, though it be meager or uncorroborated. Farmers' Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A.2d 908 (1958).

In the instant case, the wife-appellee was the only eyewitness to the accident. The credibility of her testimony was crucial to a determination of liability. It was this testimony, as emerging from a traumatically-caused amnesiac, that was attacked by the introduction of expert testimony of psychiatrists on her ability to recall the facts of the accident. At no time was the content of Mrs. Eldridge's testimony disputed or rebutted, but merely her ability to observe, recall and reconstruct the scene. Furthermore, based upon the physical evidence and the testimony of witnesses who came upon the scene following the accident, material issues going to the question of circumstantial evidence of negligence

[ 226 Pa. Super. Page 387]

    were properly submitted to the jury, and could, we believe, be resolved in favor of the plaintiffs.

It must be remembered that it is not this Court's function to substitute our judgment or evaluation of evidence where there is some credible evidence upon which to base the jury's verdict. As our Supreme Court said in Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 138-139, 153 A.2d 477, 479-480 (1959): "[T]he evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by plaintiff, and not that that conclusion must be the only one which logically can be reached. . . . The facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant. It is the duty of plaintiff to produce substantial evidence which, if believed, warrants the verdict he seeks. The right of a litigant to have the jury pass upon the facts is not to be foreclosed just because the judge believes that a reasonable man might properly find either way." See also, Handfinger et al. v. Phila. Gas Works, 439 Pa. 130, 266 A.2d 769 (1970) (judgment n.o.v. reversed and verdict reinstated because credibility questions and circumstantial evidence could have been reasonably resolved in favor of the plaintiffs).

The granting of a new trial has traditionally been within the inherent power of the trial court. Such a motion is addressed to the discretion of the trial court based upon the circumstances of the particular case, and the court's refusal will not be reviewed in the absence of a manifest abuse of discretion or a clear error of law. Nicholson v. Garris, 418 Pa. 146, 210 A.2d 164 (1965); Feldman v. Starin, 203 Pa. Superior Ct. 130, 199 A.2d 482 (1964). Numerous grounds for the granting of a new trial have been recognized. Applicable to the instant appeal, and well-established as

[ 226 Pa. Super. Page 388]

    reasons therefor, are erroneous exclusion of evidence, where the error is material and prejudicial, Panik v. Didra, 370 Pa. 488, 88 A.2d 730 (1952); and, where an issue is improperly submitted to the jury or an erroneous instruction to a jury is made, Pavorsky v. Engels, 410 Pa. 100, 188 A.2d 731 (1963); Weinstein v. Phila. Transportation Co., 222 Pa. Superior Ct. 448, 295 A.2d 111 (1972); Constructors' Association of Western Pa. v. Furman, 170 Pa. Superior Ct. 554, 87 A.2d 801 (1952).

Exclusion of Evidence Adduced at the Pre-Trial Conference

At the close of defendants' case, defense counsel sought to introduce evidence of a statement made by plaintiff's counsel at a pre-trial conference held in 1969, at which he stated that his client at that time could not recall the circumstances of the accident. This statement, which was not incorporated in any sworn affidavit or pre-trial memorandum, was obliquely referred to in the Court's Pre-Trial Order which recognized the possibility of a presumption of due care that might attach to a plaintiff who "no longer recalls circumstances of accident." The offer of proof made by counsel at trial came in the form of a request that the trial judge state to the jury that he was present at said conference and remembered such a statement to have been made by plaintiff's attorney. This was denied.

The purpose of evidence that would establish a state of mind in 1969 could only go to the credibility of the plaintiff who at time of trial recalled the accident and stated that she began remembering "things" in 1968. This testimony was in contradiction to the statement made by trial counsel, and could have served as impeaching evidence. This out-of-court statement was made in a context which merits close scrutiny and examination.

[ 226 Pa. Super. Page 389]

It has long been recognized that the acts and declarations of an agent may bind the principal when made in the course of employment. So too, the client may be bound by the acts or statements of his attorney, when made within the scope of his authority. McGarity v. New York Life Ins. Co., 359 Pa. 308, 59 A.2d 47 (1948). While distinct and formal admissions made by an attorney during the course of a trial when made for the purpose of dispensing with formal proof are binding upon a client, it is generally held that an attorney, "merely by reason of his employment in connection with litigation, pending or prospective, has no power to affect his client by admissions of fact made out of court, and not given for the specific purpose of dispensing with proof of the facts admitted." 7 Am. Jur. 2d, Attorneys at Law, ยง 122, pp. 121-122; in accord, Mahler v. Singer, 285 Pa. 540, 132 A. 718 (1926). The rule has been expressed as barring the introduction of evidence of admissions made out of court and not in the presence of the client, unless authority to make them or knowledge or assent of the client thereto is affirmatively shown. Malone v. Marano, 326 Pa. 316, 320, 192 A. 254 (1937); Douglass v. Mitchell, 35 Pa. 440, 447 (1860).

We have reviewed the case law in this Commonwealth, and find that not a single case has held evidence of the type and character as in the instant case to be admissible by the attorney's acts or statements. In two Pennsylvania Supreme Court cases, under different and distinguishable circumstances, the Court upheld the admission of attorney's statements made on behalf of the client. Fessman Estate, 386 Pa. 447, 126 A.2d 676 (1956); McGarity v. New York Life Ins. Co., supra. In both cases, the client, for whom the statement was allegedly made, was dead and therefore unavailable at time of trial to either corroborate or refute the truth of the statement or the authority of the attorney to make same. In Fessman, prior to decedent's

[ 226 Pa. Super. Page 390]

    demise, the decedent and his wife had been negotiating a support and property agreement. After the husband's death, wife sued the decedent's estate for alleged enforcement of a contract to support the minor child. In order to prove the existence of said "contract", wife was permitted to admit the statement of decedent's attorney who had stated in the form of a letter, during husband's lifetime, that the client had every intention of supporting his child in a reasonable fashion. The Court concluded that considering the subject-matter, the objectives of the parties, and the circumstances of decedent's untimely death, the " admissions by Fessman's attorney are admissible in evidence with the same force and effect as if they had been made directly by Fessman himself." Fessman at 452. In McGarity, executors brought an action against a life insurance company for a claim that the estate was entitled to recover the accidental death benefits under the policy. The insurance company was held to be permitted to introduce a letter written by decedent's attorney to a third person (decedent had crashed his car into the house of one Mrs. Clasby, who sued the estate for damages) wherein the estate denied liability because decedent had been rendered unconscious from a heart seizure at the wheel of his automobile, and that the resultant accident was unavoidable. As such evidence was directly pertinent to the question of the insurance company's liability to the decedent, this statement was permitted.

In the instant case, the statement was made in a conference wherein negotiation and trial strategy are the keynotes of the meeting. Plaintiff was not present at said conference. This statement, which served neither to act as an admission of liability or duty nor to dispense with any proof at time of trial, and which was made orally and not in the presence of the client, cannot be analogized to the circumstances existing in either McGarity or Fessman. The statement purports only to

[ 226 Pa. Super. Page 391]

    express an "assumed fact" as to the plaintiff's state of mind. The possibility that such a statement could be made as a result of inconclusive and sketchy communications with the client, based partially on truth and partially on a failure to fully question or test the client's memory, is reason enough for excluding evidence which at most constituted an assumption on the state of the plaintiff's memory, at a time when as plaintiff testified at time of trial she "began recalling things."

We are also confronted with the unusual nature of defense counsel's offer of proof. Because the oral statement made by plaintiff's attorney was neither transcribed nor incorporated in plaintiff's pre-trial memorandum, defense counsel sought a statement by the trial judge informing the jury of the Pre-Trial Order and the circumstances of the conference. The trial judge refused this offer, as he admitted that the Order was based upon an "assumed fact"; did not state unequivocally for the purpose of dispensing with proof or binding the parties that plaintiff did not recall the accident, but instead appeared as a possible question of law on the presumption of due care if such circumstances were present at time of trial; and, finally, because the revelation of such "evidence" to a jury would have necessitated his own clarification and explanation of a conference taking place 11 months prior to trial and on "collateral matters". We agree with the trial court's ruling.

It is the trial court's function to exclude evidence that would confuse issues and distract the attention of the jury "from the primary to collateral issues." Geesey v. Albee Pennsylvania Homes, Inc., 211 Pa. Superior Ct. 215, 223, 235 A.2d 176 (1967). Furthermore, the exclusion of evidence may not be grounds for a new trial where said evidence would not have affected the verdict or where other evidence of the same fact was introduced by the party applying for the new trial.

[ 226 Pa. Super. Page 392]

    that a new trial is mandated. Since one of the alternative grounds for determining negligence was not present, an instruction permitting a finding of liability on either of the grounds was prejudicial and reversible error. Izzi v. Philadelphia Transportation Co., 412 Pa. 559, 195 A.2d 784 (1963) (new trial granted since no basis for finding negligence under exclusive control doctrine, and common law negligence had to be relitigated).

As we have already stated, it is not our function to review the evidence and substitute our judgment where a jury could reasonably conclude that the weight of the evidence was consistent with liability. In discussing the propriety of the trial court's instruction to the jury, we must examine not only the question of whether such a reasonable basis existed, but whether the instruction itself was fairly submitted to the jury for consideration.

Appellants cite only a portion of the charge. The entire charge, however, sheds quite a different light on the words cited and taken out of context by the appellants:

"Now if you come to the conclusion that you do not accept her testimony that the collision took place by reason of the truck coming over on the left side of the highway, you can look to the other evidence in the case to see whether that evidence permits you to draw a reasonable inference as to how the accident happened, and that it happened with the defendant, Melcher, crossing over to the northbound lane of traffic. That would be, if you looked at the pictures and other evidence in the case aside from Mrs. Eldridge's testimony -- that may be -- I say 'may be' -- circumstantial. There may be in there other evidence, circumstantial evidence, of ...

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