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Gordon v. Robinson

decided: January 13, 1954.

GORDON
v.
ROBINSON ET AL. (GORDON, THIRD-PARTY DEFENDANT).



Author: Mclaughlin

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This is an appeal by Fletcher J. Gordon and Esther M. Gordon, his wife, from the district court's denial of their motion for a new trial and the entry of judgment on a verdict for defendant, George W. Robinson, D.C.W.D.Pa.1952, 109 F.Supp. 106. The litigation arose out of a collision between Gordon's automobile and Robinson's truck north of Union City, Pennsylvania. Jurisdiction is based on diversity, the Gordons being residents of New York, Robinson of Pennsylvania. Originally both Gordons were parties plaintiff. However, on motion of defendant a severance was granted as to Fletcher J. Gordon and he was joined as third-party defendant. For convenience both Gordons will hereafter be referred to as plaintiffs.

The two questions raised on this appeal relate solely to the admission of certain evidence, that of Michael Signorino, a Pennsylvania state police officer, and of Homer T. Eaton, an attorney. Signorino, defendant's witness, testified on direct examination that he arrived at the scene of the accident about forty-five minutes after the event. His counsel, still on direct, asked him to explain in his own words "* * * as to where the debris was with respect to the position of the truck at the time of the impact." That was objected to as calling for a conclusion and the objection was overruled. On redirect examination this officer was allowed to testify where the accident took place; that there was a violation of (presumably) the Pennsylvania Motor Vehicle Act; that plaintiffs' automobile was on the wrong side of the road; that no improper driving of the defendant was indicated; that with reference to plaintiffs' machine to control was present*fn1 and that the officer recommended the plaintiff driver for a departmental hearing. All those conclusions were contained in the officer's accident report which, however, was not put into evidence. Just prior thereto, on cross-examination of the officer, plaintiffs' attorney had questioned him concerning the report, asking him for the information regarding the speed of the vehicles involved which he had obtained from questioning both drivers, also as to the allowed speeds and what plaintiff had told him about how the accident had occurred. It was immediately thereafter, on redirect examination, that the trial court permitted the witness to give the above noted conclusions on the specific theory that the defense was entitled to bring out anything else in the officer's report. This was error. The testimony was grossly improper. In effect the state policeman, in full uniform, was permitted to give the jury his conclusions on the basic issues of the litigation, the very issues they were there to decide. Cross-examination of the witness did not open the door to that evidence.

Rule 43(a),*fn2 Federal Rules of Civil Procedure, 28 U.S.C., has liberalized the admission of evidence in federal courts. By its terms all evidence shall be admitted which is admissible under federal statutes, rules of evidence theretofore obtaining in equity matters, or under the rules of the courts of general jurisdiction in the state where the court is held. We have, however, neither been referred to nor have we found any rule of evidence in the above three sources which supports defendant's contention. It is clear that there is no federal statute on the point and nothing in the old equity rules sheds any light on the problem. As to the law of Pennsylvania, it supports plaintiffs' position that an error in the admission of evidence on cross-examination, whether or not it is objected to, does not qualify further evidence, otherwise inadmissible, on redirect examination.

In Smith v. Dreer, 1838, 3 Whart., Pa. 154, an action by a gas fitter to recover the amount of a bill for work and labor done, defendant called a witness to testify that the work was done in an unworkmanlike manner. On cross-examination plaintiff adduced testimony that he, plaintiff, had made gas fittings at other places besides defendant's establishment. On redirect defendant's counsel sought to establish that the work done at those places was defective, to which plaintiff objected, whereupon the court disallowed the witness to be so examined. On appeal this was assigned as error. In affirming, the Supreme Court said:

"The principle of Griffith v. Eshelman,*fn3 that cross-examination to irrelevant matters shall not bring it into the issue, is decisive of the point here. The defendant might have excluded the evidence of the plaintiff's agency in putting up gasfittings at the exchange and other places; and prejudice from his omission to do so, can certainly not entitle him to draw the inquiry still further from its course. The issue is, whether the particular work for whose price suit is brought, has been done in a workmanlike manner; and the plaintiff's engagements on the one hand, or his fulfilment of them on the other, cannot be suffered to affect it."

An analogous situation was presented in Swank v. Phillips, 1886, 113 Pa. 482, 6 A. 450, where it was held error to permit incompetent witnesses to testify on the same matter as to which the opposing party, also an incompetent witness, had given testimony, the court saying that one error could not be corrected by committing another. See also Griffith v. Eshelman, 1835, 4 Watts, Pa., 51, supra, note 5; cf. Sherwood v. Titman, 1867, 55 Pa. 77 and Commonwealth v. Kauffman, 1944, 155 Pa.Super. 347, 38 A.2d 425.

In the instant case defendant did not limit himself to correcting errors in the admission of testimony on cross-examination. The manifest purpose of his redirect examination was not to discredit or explain the cross-examination that being on the whole very favorable to defendant, but to bring out new matter in the form of other opinions and conclusions of Signorino relating to the accident.

We do not see that the above substantial error can fairly be ignored on the ground that it was not called to the attention of the trial judge in accordance with Rule 46, F.R.C.P.*fn4 While it is true that ordinarily errors in a jury trial which are not brought to the attention of the trial court will not be considered, on appeal, United States v. Atkinson, 297 U.S. 157, 56 S. Ct. 391, 80 L. Ed. 555, we do not agree that plaintiffs failed to apprise the court of their objections to the testimony. As has already been noted plaintiffs' attorney had promptly objected when Signorino first started giving his conclusions as to how the accident happened and had been overruled. Later on redirect when the witness began to state his above mentioned conjectures the attention of the court was once more called to this and the following colloquy occurred:

"Mr. Wolford (Counsel for plaintiffs): If it please the Court, we are again getting back to conclusions. If he is going to reach conclusions, I want the full explanation for it. Here is an officer that arrives at the scene of the accident forty-five minutes late, looks at the debris and testified in Court that what he found was the result of that observation.

"Mr. Illig (Counsel for defendant): If the Court please, the officer has been attempting to testify to the best of his knowledge as to his investigation and Mr. Wolford has been given full latitude to cross examine with regard to this report, Your Honor permitted him full use of it, so that I think, in fairness, if there is anything else in the report of the officer, it being understood that it is his report, that we should have the right to bring it out.

"The Court: You do, I agree with you."

It should not, in our opinion, be decisive that counsel failed to use the word "objection" so long as he did not sit mute and invite or acquiesce in the error of which he now complains, nor that he failed to object to each and every question and answer relating to the report in view of the court's indication that it would not sustain that type of objection even if made. It is interesting to note that the district judge who considered plaintiffs' motion for a new trial did not, in the opinion denying the motion, comment on the failure to ...


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