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JOHN F. FISH AND BRENDA FISH v. DONALD K. GOSNELL (07/01/83)

filed: July 1, 1983.

JOHN F. FISH AND BRENDA FISH
v.
DONALD K. GOSNELL, APPELLANT



No. 933 Pittsburgh 1981, Appeal from the Judgments entered in the Court of Common Pleas of Potter County, Civil Action, Law, at No. 79 of 1980.

COUNSEL

Richard W. Mutzabaugh, Bradford, for appellant.

John E. Rydesky, Emporium, for appellees.

Spaeth, Johnson and Hoffman, JJ. Johnson, J., concurs in result.

Author: Hoffman

[ 316 Pa. Super. Page 571]

Appellant alleges numerous trial errors in this appeal from an adverse award in a personal injury action. Finding his contentions without merit, we affirm the lower court's order.

At about 11:00 p.m. on the snowy night of February 13, 1978, appellant's automobile struck appellee's garden tractor head-on as appellee was plowing snow from his driveway near the berm of the highway. The exact locations and speeds of the vehicles were disputed. In the collision, appellee suffered broken bones in the right side of his face, his pelvis, and both legs, and the choke handle of the tractor was imbedded in his abdomen. After seven weeks in casts immobilizing his pelvis and both legs, a subsequent operation to remove the choke handle, and a period of convalescence,

[ 316 Pa. Super. Page 572]

    appellee was diagnosed to have suffered a 30% permanent disability of his legs and a permanent disfigurement of the right side of his face. Upon returning to work, appellee discovered he had lost the ability to duck in or around machinery or to stand for prolonged periods as required by his customary job as a printing press operator and repairer, but he was able to obtain another less strenuous, but nearly equally remunerative, job at a grocery store. On August 5, 1980, he commenced this action in trespass against appellant.*fn1 Following a trial, at which appellee introduced a witness testifying on the issue of damages who had not been identified in pre-trial discovery, the jury found appellant 80% negligent and appellee 20% negligent in causing the accident, assessed appellee's damages at $80,000, and thus awarded him a net verdict of $64,000.*fn2 Following denial of post-verdict motions, the lower court entered judgment in favor of appellee on September 14, 1981. Thirty-six days later, on October 20, 1981, during the pendency of this appeal, the lower court molded the verdict to add the 10% per annum pre-award delay damages required by Pa.R.Civ.P. 238.

Appellant contends that the lower court erred in admitting a co-worker's testimony because her identity had not been disclosed in response to interrogatories. We find that the error, if any, was harmless. Although the challenged witness's testimony helped support appellee's damage claim, and may have bolstered his credibility by corroborating some of his testimony, the lower court's finding that the proffered testimony was "rather innocuous" in the context of this trial is well-supported. Expert witnesses had described appellee's actual injuries. Appellee had already testified about his working conditions and ability to perform his printing job. (N.T. at 25-27, 72), and appellant did not dispute the facts asserted, (N.T. at 92-94). The

[ 316 Pa. Super. Page 573]

    substance of the challenged witness's testimony that appellant was well respected and had good job prospects was already in evidence through appellee's undisputed testimony about his long service, (N.T. at 26), and appellant's eliciting from him that he had resumed the job after the accident at a higher rate of pay, (N.T. at 94). Any prejudice from surprise was minimal. Appellee had disclosed in discovery his intent to call an "employment specialist," and had revealed the name and address of his employer and the nature of his job as a printing press operator and repairer. Although appellee never disclosed the precise identity of this witness as he should have, see Pa.R.Civ.P. 4007.4, that the witness was a co-worker rather than the promised specialist did not appreciably burden appellant. Sidebar discussion revealed that appellant was aware that the witness was appellee's aunt, and appellant was able to use this relationship on cross-examination. (N.T. at 131-32). In addition, the court found no indication of bad faith or attempt to mislead in presentation of this witness. Even under a strict reading of the procedural rules, holding that the presentation of a non-disclosed witness was per se error under Pa.R.Civ.P. 4019(i), a new trial would not be warranted here. The erroneous admission of evidence is not grounds for a new trial if the particular facts it tended to prove were clearly established by other competent evidence, especially if the facts were not disputed, see Coons v. McKees Rocks Boro., 243 Pa. 340, 90 A. 141 (1914); Wagner v. Wagner, 158 Pa. Superior Ct. 93, 43 A.2d 912 (1945); 9 Standard Pennsylvania Practice, Ch. 40, ยง 198 (1962 & Supp. 1981), or when no harm or prejudice results, see Kolb v. Hess, 227 Pa. Superior Ct. 603, 323 A.2d 217 (1974). Moreover, considering the jury's findings on liability and the other evidence of damages, it is apparent that this allegedly erroneously admitted evidence of damages did not unduly influence its award. See Herb v. Hallowell, 304 Pa. 128, 154 A. 582 (1931). Accordingly, we affirm the lower court's decision on this point.

[ 316 Pa. Super. Page 574]

Appellant contends next that the lower court erred in permitting appellee to answer, over objection, a leading question posed him on direct examination. We hold the lower court acted within its discretion in permitting an answer to the question. The rule proscribing leading questions by the party calling a witness "is liberally construed in modern practice, with a large measure of discretion in the court to permit parties to elicit any material truth without regard to the technical considerations of who called the witness. It is a discretion not susceptible of exactly defined limits beforehand, but to be exercised in the interests of justice and a fair trial under the circumstances as they arise." Commonwealth v. Gurreri, 197 Pa. Superior Ct. 329, 332-33, 178 A.2d 808, 809 (1962). Accord, Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963). Absent a clear abuse of the trial ...


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