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COHEN ET VIR v. JENKINTOWN CAB COMPANY ET AL. (02/05/76)

decided: February 5, 1976.

COHEN ET VIR, APPELLANTS,
v.
JENKINTOWN CAB COMPANY ET AL., APPELLANTS



Appeals from order of Court of Common Pleas of Montgomery County, No. 71-03592, in cases of Claire Cohen and Lipman Cohen v. Jenkintown Cab Company, and/or Jenkintown Taxi Company, and Same v. Same.

COUNSEL

Edward R. Paul, with him LaBrum and Doak, for appellants at No. 1257 and appellees at No. 1266.

Fred Lowenschuss, with him William D. Parry, for appellants at No. 1266 and appellees at No. 1257.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Spaeth, J., concurs in the result.

Author: Cercone

[ 238 Pa. Super. Page 457]

This appeal by Jenkintown Cab Co. arises from the lower court's granting of plaintiff's motion for a new trial, after the jury returned a verdict for the defendant cab company at the trial. The principal allegation of error

[ 238 Pa. Super. Page 458]

    is that the court en banc mistakenly granted the motion for a new trial on the grounds that the trial court erred in refusing to permit testimony concerning a conversation between a former cab driver for Jenkintown Cab Co., who is now deceased, and his attorney. That admittedly-confidential communication concerned the accident which caused the injuries of which plaintiffs, Mr. and Mrs. Cohen, complain.

On August 4, 1969, Mrs. Cohen was crossing Greenwood Avenue in Wyncote, Pennsylvania when she was struck by a motor vehicle. She sustained serious injuries requiring extensive surgery and hospitalization. At the time of the accident a driver for Jenkintown Cab Co., Edward Guise, was nearby and rendered assistance to Mrs. Cohen before she was transported to the hospital. Guise reported to the police, who subsequently arrived at the scene, that he had seen the accident and that Mrs. Cohen had been struck by a dark-colored, hit-and-run vehicle. Thereafter, at an insurance arbitration hearing, Mr. Guise again stated that he had seen the hit-and-run vehicle. Largely as a result of that testimony, Mr. and Mrs. Cohen recovered $30,000 from their insurance carrier by "stacking" the coverage provided by separate policies.

Shortly after the arbitration hearing and award, Mrs. Cohen's attorney contacted Attorney Charles Gross to inquire about conversations Mr. Gross may have had with Edward Guise concerning the accident. It seems that the finger of suspicion pointed to Guise as having been the driver of the vehicle which actually struck Mrs. Cohen, while Guise was acting within the scope of his employment with Jenkintown Cab Company. His statements concerning the dark hit-and-run vehicle were suspected to be fabrications.

At first, Attorney Gross refused to divulge the substance of his communication with his client, Mr. Guise, concerning the accident, but he subsequently did so at a

[ 238 Pa. Super. Page 459]

    deposition after both parties agreed to reserve all objections to the admissibility of his testimony until trial. Mr. Gross' statements indicated that Mr. Guise consulted with him prior to testifying at the arbitration hearing and admitted to having been the driver of the car which struck Mrs. Cohen. Guise sought advice as to whether he should maintain his false story at the hearing, tell the truth, or refuse to testify. Although Mr. Gross advised Guise to ...


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