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EDWARD DURKIN v. EQUINE CLINICS (04/29/83)

filed: April 29, 1983.

EDWARD DURKIN, JAMES DURKIN, JR., EUGENE BARTOLI, JOHN R. WILLIAMS AND HERVE FILTON, IND. AND D/B/A SNOW SHOE FARMS, APPELLANTS,
v.
EQUINE CLINICS, INC., AND JOSEPH DE LEO



No. 3280 Philadelphia, 1981, Appeal from the Judgment of the Court of Common Pleas, Civil Action - Law, of Delaware County, No. 8022 of 1973.

COUNSEL

Joseph D. Shein, Philadelphia, for appellants.

George J. McConchie, Media, for appellees.

Cavanaugh, Rowley and Watkins, JJ. Cavanaugh, J., concurs in the result.

Author: Rowley

[ 313 Pa. Super. Page 78]

Appellants brought this action to recover the value of their six year old race horse, Josiah. Josiah died on August 21, 1971, approximately ten minutes after being injected with certain drugs by appellee Dr. Joseph DeLeo, a veterinarian employed by appellee Equine Clinics, Inc. After a jury trial in December of 1980, a verdict was returned in favor of appellees. Motions for a New Trial were filed and denied. This appeal followed.

Five issues are raised on appeal: 1) Did the court err in its charge to the jury by failing to clarify the issues or to apply the law to the facts of the case?; 2) Did the court err in not charging that a race horse is a unique chattel and therefore not subject to the usual market value rule of damages?; 3) Did the court err in not permitting a recorded interview with Dr. Seeber to be played for the jury?; 4) Did the court err in refusing to charge the jury on the doctrine of res ipsa loquitur?; and 5) Did the court err in refusing to instruct the jury that prescribing and administering dosages of drugs contrary to the manufacturer's package insert is evidence of negligence?

Appellants' first and second arguments, concerning failure to apply the law to the facts and the proper measure of damages will not be considered because they have not been preserved for appellate review since they were not raised in appellants' post-trial motions. Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963); Leopold v. Davies, 246 Pa. Super. 176, 369 A.2d 868 (1977).

Appellants next argue that the court erred in refusing to permit a recorded interview with Dr. Seeber, an associate of Dr. DeLeo who had been treating Josiah, to be played for the jury. However, a written transcript of the recording was admitted into evidence. Appellants do not claim that the transcript was inaccurate. Rather, they argue that

[ 313 Pa. Super. Page 79]

    listening to the recording would have had a different "impact" on the jury than merely reading a transcript. Appellants further argue that introduction of the transcript, rather than the recording itself, violated the "Best Evidence Rule".

Even if we were to consider the tape recording to be a "writing", the Best Evidence Rule would not apply in this case. The Best Evidence Rule is only applicable to the proof of the contents of documents when the contents of those documents are material to, rather than mere evidence of, the issues at bar. Otherwise, the admission of "secondary evidence" should not be reversed except for a "grave abuse of discretion". Ledford v. Pittsburgh & Lake Erie R. Co., 236 Pa. Super. 65, 345 A.2d 218 (1975). In this case, the contents of the interview were merely collateral to the issue of appellees' negligence. Proof of its content was not necessary in order to make a case or provide a defense. See Warren v. Mosites Const. Co., 253 Pa. Super. 395, 385 A.2d 397 ...


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