Tolentino v. Bailey , 230 Pa. Super. 8 ( 1974 )

Opinion by

Cercone, J.,

This appeal arises from a jury verdict and judgment for the plaintiff, Mr. Tolentino, in the amount of $225,000. The facts of this suit in trespass, cast in the light most favorable to the verdict winner, are as follows:

In October, 1962, the plaintiff and several other coworkers, while in the course of their employment with Continental Transportation Company, were told to unload the freight from the defendant Bailey’s truck. The men routinely backed the truck up to the loading dock, put on the emergency brake, put the truck in reverse gear, and placed blocks of wood (chocks) in front of its rear wheels. They then laid a metal ramp from the docks to the inside of the truck, a distance of mere inches, and began to unload the 14,000 pounds of freight on board with a forklift. As the forklift proceeded up the ramp to the truck, the truck rolled forward approximately eight feet. The forklift, with the plaintiff operating it, fell between the truck and the loading dock pinning the plaintiff’s right arm underneath the steering column. The plaintiff lay in great pain for nearly ten minutes before the forklift could be removed and the plaintiff taken to the hospital.

Two operations and several months in a cast proved only moderately successful, since the plaintiff thereafter experienced severe pain whenever he attempted strenuous work. Although the plaintiff returned to work at Continental when his condition improved, he was unable to perform many functions of that arduous job because of the pain he experienced. The pain became so severe that he had to quit. Since that time he has only been sporadically employed. His difficulty apparently is that he cannot perform any task which requires rotation of his right arm and the application of pressure simultaneously.

The testimony indicated that the defective conditions of the hand brake and transmission, which the defendant had failed to repair or replace after due notice, caused the truck to roll forward under the momentum of the forklift rolling up the ramp.

Although the defendant alleges that many errors occurred at the trial which, either singly or cumulatively, require our granting him a new trial, we find no reversible error committed by the learned trial court below during the hotly contested litigation of this case. However, especially in light of the dissent by our Brother, Judge Hoffman, we do feel that one point raised by the defendant merits some discussion.

During the trial the defendant introduced Pennsylvania state inspection records which indicated that one month prior to the accident Bailey’s truck passed inspection with only minor repairs. The truck’s brakes were listed therein as “100%.” In rebuttal, Tolentino called as a witness a former state inspection officer who testified, that as a result of his surveillance of that inspection station from April to May of 1963, it was decertified and its owner prosecuted for five separate instances of issuing inspection stickers without having conducted an inspection (“paperhanging”). Bailey strenuously objected to the admission of this testimony as irrelevant and highly prejudicial insofar as there was no evidence, he argued, that any fraud was involved in the inspection in question. Tolentino countered that the credibility of a business record could be impeached by showing that its recorder had made fraudulent entries therein. See Huffman Estate, 349 Pa. 59 (1944); Funk v. Ely, 45 Pa. 444 (1863); Weamer v. Juart, 29 Pa. 257 (1857).

In his brief the defendant, Bailey, refers to the fact that the prosecutions involved in the decertification of the service station related to trucks much larger than his which could not have fit into the proprietor’s garage to be properly inspected. Therefore, he argues, the decertification was irrelevant to the propriety of his inspection, and improperly implied without foundation that the defendant had received an inspection sticker without an inspection.¹

First, we are not here concerned with an offer of affirmative evidence to prove a collateral issue for which no proper foundation has been laid. Rather, we are concerned with rebuttal evidence offered to diminish, by impeachment, the credibility or veracity of a business record in which a relevant entry appears. The law does not require that there be a direct relationship between the proved entry and those offered for impeachment. As the Supreme Court has stated:

“The only error we see upon the record is in excluding from the jury all evidence tending to impeach Ely’s books, except such as related to the account against Funk. Such a rule of evidence amounts to nothing in its practical application.

“[I]t is competent for the adverse party to show [a business record’s] general character by pointing to charges and entries affecting other parties, and by calling witnesses to prove such entries false and fraudulent.” Funk v. Ely, 45 Pa. at 448-49. Accord, 5 Wig-more on. Evidence §1557 (3rd ed. 1940); 1 Henry, Pennsylvania Evidence §133 (1953).

When the defendant introduced the business records to establish, among other things, that hand brake failure could not have been responsible for the accident, he sought to rely on the “general character” of those records and their maker. He cannot complain now that he is tainted by the evidence undermining the character of the records upon which he sought to rely. In Wearner v. Juart, supra, the Supreme Court stated: “[W]hen the shopkeeper has through fraud or carelessness, made false entries, or omitted true ones, so frequently as to destroy the confidence of his customers in both himself and his books, what reason is there for insisting that a jury shall trust them.” Id. at 259.

Since the Commonwealth decertified the inspection station for all vehicles, it clearly indicated that the proprietor of the station could not be trusted to properly inspect any vehicles, and the jury should be aware of that fact. While violations more proximate to the time of the defendant’s inspection would have been desirable, they were not mandatory. The question of remoteness, which is basically one of relevance, is properly vested in the discretion of the trial court, and its decision thereon will not be reversed unless a clear abuse of discretion is shown.² See generally 5A C.J.S., Appeal & Error §1608 (1958); 2 P.L.E., Appeals § §418-19 (1957).

Both the remoteness of the violations and the fact that some distinction could be drawn between the uninspected trucks and the defendant’s truck went to the probative value of the evidence; and, the probative value of a business record is a question for the jury. 2 Jones on Evidence §12:13 (6th ed. 1972). Consequently, the jury was entitled to receive and weigh evidence which bore upon its probative value.

Second, even if it were the case that more direct and less remote evidence of fraudulent entries should have been required if there were no other evidence that the defendant’s inspection was improper, we would still affirm. The defendant is simply incorrect when he asserts that there is no evidence of record sufficient to indicate that his inspection in September of 1962 was improper, or that he knew it to be so. The mechanic at Continental who customarily worked on the defendant’s truck testified that approximately six weeks after the inspection (two weeks after the accident) he replaced both the foot brake linings on the truck and the hand brake. Indeed, the hand brake was so badly worn that it was beyond the state of adjustment. He also testified that approximately nine weeks after the inspection (five weeks after the accident) he put a new transmission into the truck. Another witness testified that approximately one month before the accident the brakes had to be pumped to be operated, and the transmission frequently popped out of first and second gear. He told the defendant and others that he would not drive the truck until it was repaired. There was also testimony that prior to the accident the hand brake could be pulled back all the way with very little effort. Finally, there was expert testimony that it is impossible for three-year-old brakes to properly have a “100%” designation. Thus, even without the decertification testimony the jury may well have concluded that the inspection was not properly conducted.

The order and judgment of the court are affirmed.

1 The officer who conducted, surveillance indicated a reason for prosecuting only for tractor-trailers. From his vantage point he could readily determine that “paperhanging” was going on because the big rigs could not be taken into the garage, and no effort was made to inspect them outside.

2 In the instant case, the proprietor of the garage did not authenticate the records. Instead, the defendant called an employee of the Department of Transportation to authenticate them. For that reason, it was extremely difficult, if not impossible, to show violations more proximate to the time of the defendant’s inspection. Since an effective cross-examination was foreclosed in this regard, the court could properly conclude that it should allow more leeway in rebuttal evidence than it might under other circumstances.