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ADAMS ET AL. v. MACKLEER (03/29/76)

decided: March 29, 1976.

ADAMS ET AL., APPELLANTS,
v.
MACKLEER



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 71-8089, in case of Shirley Bamforth Adams, parent and natural guardian of Christopher Adams, a minor; Christopher Adams, a minor; and Shirley Bamforth Adams, in her own right v. William J. Mackleer.

COUNSEL

John V. Hasson, with him Timoney, Knox, Avrigian & Hasson, for appellants.

Charles Jay Bogdanoff, with him William L. Kinsley and Albert C. Gekoski, for appellee.

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

Author: Price

[ 239 Pa. Super. Page 247]

Following a jury trial, judgment was entered in favor of defendant-appellee. Plaintiff-appellant Christopher Adams (appellant-son) and plaintiff-appellant Shirley Bamforth Adams (appellant-mother) bring this appeal, alleging eight trial errors. We agree that there was error, and will, therefore, grant a new trial.

The facts indicate that on August 8, 1969, at 11:30 p.m., appellant-son and appellee were involved in an accident. Appellant-son, then seventeen years old, was operating a borrowed bicycle in a southerly direction on Highland Avenue near Abington High School, Montgomery County, Pennsylvania. The appellee was driving an automobile in the opposite direction on Highland Avenue.

Appellee made a left-hand turn into a driveway which led to the Abington High School parking lot, and proceeded up the driveway. Appellee testified that he did not see appellant-son until he had driven sixty or eighty feet up the driveway. Appellee also stated that he did not come to a stop prior to making the turn and that he was traveling at a speed of five miles per hour.

[ 239 Pa. Super. Page 248]

Appellant-son testified that he did not see appellee's automobile until immediately before the accident, when he was blinded by the headlights. The impact threw appellant-son into the air, and his right hand went through the windshield of the car.

Appellants first contend that it was error to allow testimony concerning a note written by appellant-mother and sent to the owner of the bicycle stating that the headlamp did not function and that the brakes failed. They contend that while questions concerning the note were proper as to appellant-mother, they were so prejudical to appellant-son as to mandate total exclusion. This is indeed a difficult question.

The law in the Commonwealth has long been that admissions by a party are admissible as an exception to the hearsay exclusion. Beardsley v. Weaver, 402 Pa. 130, 166 A.2d 529 (1961). However, our courts have established an exception to the rule.

"The more serious error, however, committed by the trial judge was in admitting the letters into evidence at all, even as against defendant who wrote them. The situation is not unique where, as in the present case, a declaration by a party would be admissible against him but not against others -- co-defendants with him or with interests similar to his own, -- but where, if the declaration were received as evidence against the person making it, the necessary result would be to prejudice such others; under these circumstances there is abundant authority to the effect that the declaration should be excluded entirely so as to protect those whom its admission would harm, even though the party offering it is thus precluded from the exercise of a right he would have had if the proceeding were against the ...


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