Miles v. Ryan

VAN DUSEN, Circuit Judge.

Plaintiff¹ 2appeals from a district court judgment for defendant Ryan entered on the jury’s verdict finding the plaintiff was contributorily negligent in a diversity,² survival and wrongful death action. Plaintiff contends that the jury’s verdict was against the weight of the evidence, that the district court erred when it excluded evidence of drinking on the part of one of the defendants³ prior to the accident, and because the district court committed numerous errors in its charge.⁴

The accident causing the decedent’s death occurred on December 17, 1965, on the Pennsylvania Turnpike, west of the Valley Forge service area. Decedent and two passengers were returning home to South Bend, Indiana, at the end of a vacation (N.T. 40). Just prior to the accident, decedent had had difficulty with his vehicle and had pulled into a service area for repairs. In the service area decedent was warned by a State Trooper, Officer Bigus, that the left rear light on the vehicle was not functioning and that he should have the light repaired before continuing on the Turnpike (N.T. 44, 216-18). After fixing the faulty light, the decedent drove a short distance on the highway when the car started to malfunction. The decedent and the occupants decided to attempt to back the car back to the service area (N.T. 46). Shortly thereafter the decedent’s car was struck in the rear by the car driven by defendant Ryan.

Both parties agree that if decedent’s vehicle was on the travelled portion of the Turnpike at the time of the accident, such evidence would sustain a finding of contributory negligence. However, there was sharp disagreement as to the position of the vehicle at the time of the impact. One of decedent’s passengers claimed that the decedent’s car was off the travelled portion of the highway (N.T. 51), but admitted that this was in contradiction to a statement he made to Officer Bigus immediately after the accident (N.T. 59-60, 64). Another witness for the plaintiff, who came to the scene after the accident, also testified that the car was off the highway (N.T. 79, 80). Defendants Wells and Ryan both stated the vehicle was partially on the highway (N.T. 159, 184-185). The defendants’ testimony was corroborated by Officer Bigus, who gave his expert opinion that the point of impact was on the travelled portion of the highway (N.T. 227, 228).

It is not for this court to resolve the seeming inconsistencies in the testimony, but rather for the jury, since it is their function to weigh the testimony and the inferences to be drawn from the evidence. See, e.g., Continental Air Lines, Inc. v. Wagner-Morehouse, Inc., 401 F.2d 23 (7th Cir. 1968); Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129 (3d Cir. 1965). A motion for a new trial, based on the ground that the verdict was against the weight of the evidence, is “addressed to the sound discretion of the trial judge and its denial is not ordinarily reviewable on appeal.” Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 482 (3d Cir. 1965); Sokol v. Gussack, 367 F.2d 576 (3d Cir. 1966) (per curiam). After a careful review of the record, we do not believe the district court abused its discretion when it stated:

“It is this court’s view that there is ample testimony on the record, if believed, to support the jury’s finding of contributory negligence.”

338 F.Supp. at 1066.

The plaintiff next contends that the district court erred when it excluded evidence that Wells had been drinking at some undisclosed time prior to the accident. Plaintiff’s counsel, in chambers, offered the following:

“Mr. Wells told Officer Bigus that he had five to seven ‘V-O’s’ and water to drink within a two-hour period . when he asked if he had anything to drink.

“There will be testimony that he had five to seven shots of whiskey.

“I offer the testimony of Officer Bigus about the five to seven ‘V-O’s’ and water within a two-hour period.” (N.T. 140, 143, 146)

We note that this offer of proof was made with the intention to impeach the credibility of defendant Wells, whom plaintiff’s counsel planned to call even before he had had a chance to see if he could prove his joint venture theory through the testimony of the next witness, Ryan,⁵ and before he knew whether defense counsel would call Wells.

This offer was never renewed after Ryan had completed his testimony. Specifically, it was not renewed before, during, or after the testimony of Wells.

It is the rule in Pennsylvania that “[i]ntoxication on the part of a witness at the time of an occurrence about which the witness has testified is a proper matter for the consideration of a jury affecting his credibility.” Commonwealth v. Rouchie, 135 Pa.Super. 594, 7 A.2d 102, 107 (1939); Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); Commonwealth v. Godfrey, 177 Pa.Super. 640, 112 A.2d 434 (1955). However, the Commonwealth courts caution that “while proof of intoxication is relevant where recklessness or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.” Fisher v. Dye, supra at 476 of 125 A.2d; Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); see also Kriner v. McDonald, 223 Pa.Super. 531, 302 A.2d 392 (1973); Sentz v. Dixon, 224 Pa.Super. 70, 302 A.2d 434 (1973).⁶ A similar standard of proof (drinking intoxicating liquors reasonably establishing a degree of intoxication proving inability to accurately observe and remember events in the testimony) is required when the issue is the credibility of a witness. Commonwealth v. Godfrey, supra at 436 of 112 A.2d.⁷

In an earlier suit we recognized the rule followed in Pennsylvania when we stated in Gensemar v. Williams, 419 F.2d 1361,1363 (3d Cir. 1970):

“Actually, the Pennsylvania courts hold that the mere fact of drinking intoxicating liquors is inadmissible unless it reasonably establishes a degree of intoxication which proves unfitness to drive, Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956). Such evidence is considered so prejudicial that the Pennsylvania Supreme Court has stated that a ‘wise’ procedure in a case where evidence of drinking is offered is for the court first to hear all the testimony out of hearing of the jury in order to determine whether it is sufficient to meet the above-mentioned standard. See Vignoli v. Standard Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965), wherein the Supreme Court of Pennsylvania noted, ‘The trial court wisely heard the testimony relative to Crise’s alleged intoxication out of the jury’s hearing. In circumstances where the jury could not reasonably reach a finding of intoxication, it is highly prejudicial to permit it to hear evidence bearing on the subject’ (see 210 A.2d at 273).”

The district court properly considered, out of the hearing of the jury, whether the offered evidence reasonably established a degree of intoxication, which affected the capacity of Wells to observe and remember. We cannot find on this record that its finding that plaintiff failed to lay the proper “foundation showing an actual state of intoxication in accordance with the salutory rule of Fisher” (338 F.Supp. at 1067) is reversible error.

In reaching this conclusion, the court may have been influenced by the deposition of Frank Wells, filed in the district court on April 23, 1971. In that deposition, Wells reported that he only had three “V.O.’s” and water, and that he had been able to verify the quantity specifically because after the accident “when I went ... to pay the tab . . it was my tab night. And I know exactly what was on it. And I talked to the guy, and he showed me exactly what we had” (Doc. 32 at 20-21). He further stated that the statement given to Officer Bigus was made in the hospital, while in a great deal of pain, and in an effort to have the Trooper leave him alone (Doc. 32 at 29-31).

At the point in the trial when plaintiff sought to introduce his evidence, the probative value of an admission by Wells that he had been drinking, without the proper foundation that the quantity he had consumed demonstrated an ineapacity on his part to observe and remember details at the time of the accident, would have been far outweighed by the unfair prejudice that would have resulted, since the jury might have imputed the drinking by Wells, to the driver, Ryan. See Harvey v. Doliner, 399 Pa. 356, 160 A.2d 562, 565 (1960), where the Pennsylvania Supreme Court recognized the danger of allowing “the trial to drift on a tide of alcoholic debate far away from the principal issue as to who was responsible for the accident in which the plaintiffs were allegedly injured.” It is well recognized that evidence may not be admitted where its prejudicial effect outweighs its probative value. See McCormick, Law of Evidence, § 185 (2d ed. 1972); 1 Wigmore, Evidence, § 29 (3d ed. 1940). The prejudicial effect of testimony concerning drinking by Wells on the day of the accident that would suggest to the jury that Ryan had also been drinking would be contrary to these recognized authorities.

“ . . . [A]s stated by the learned court below, ‘Whether one may have partaken of some liquor is not a test of one’s credibility and is the type of question, whether answered in the affirmative or negative that may create in the minds of some jurors a most unfavorable inference.’ ”

Furthermore, even if the trial court was incorrect in its determination that plaintiff’s offer of proof failed to demonstrate intoxication, we believe that its exclusion was not reversible error, since the court’s refusal to admit the offered evidence did not affect the substantial rights of the parties. See F.R.Civ.P. 61. The record makes clear that the statements of Wells were merely supportive of the testimony given by Ryan and Officer Bigus.

Plaintiff also alleges that the trial court erred in several points of its charge to the jury. After examining the record and the charge as a whole, it is our opinion that it fairly and adequately submitted the issues in the case to the jury. See Ely v. Reading Co., 424 F.2d 758, 760-761 (3d Cir. 1970).

Therefore, the judgment of the district court will be affirmed.⁸

1 . The plaintiff, Caesar Miles, is the administrator of the estate of the deceased, Michael E. Miles.

2 . The jurisdiction of the district court was based on 28 U.S.C. § 1332. Defendants were citizens of Pennsylvania and plaintiff a citizen of Indiana. The complaint alleged that the amount in controversy exceeded $10,000. After the entry of judgment, a March 15, 1972, district court order, supported by an opinion, denied plaintiff’s motion for new trial.

3 . The plaintiff alleged defendant Frank Wells, a passenger in defendant Ryan’s automobile, was on a joint enterprise with Ryan at the time of the accident. The jury found to the contrary. That issue has not been raised on appeal.

4 . See district court opinion referred to in note 2 above, which is reported in 338 F.Supp. 1065 (E.D.Pa.1972).

5 . The defendant Ryan was subject to a subpoena to testify as a witness in a criminal case in Delaware on the morning of the second day of the trial (N.T. 3 — 4). Arrangements were made to have him testify out of turn for the defense on the morning of that day in this case in Philadelphia, so that he could meet his other commitment as early as possible on that day. At the end of the first day of the trial, the judge advised the jury in open court as follows :

“We will recess now until tomorrow morning, and at the request and agreement of both counsel we would like to get started at 9:35 A.M. because of a conflict in time with one of the witnesses, and we will take that witness first; is that correct?

“Mr. Feldman: That’s correct.

“The Court: I hope it doesn’t inconvenience too much, so if you will be here at 9:30 A.M., we will start early and accommodate you.”

6 . Neither the odor of alcohol on a party’s breath, see Critzer v. Donovan, 289 Pa. 381, 137 A. 655 (1927), nor the fact that a person had been drinking intoxicating liquor, see Balia v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955), nor testimony that a person had a blood alcohol content which would “affect” his driving, see Billow v. Farmers Trust Company, 438 Pa. 514, 266 A.2d 92 (1970), is sufficient, standing alone, to establish unfitness to drive. The rationale for the exclusion of such evidence has been stated as follows:

“Certainly if the driver was not intoxicated or- driving under the influence of liquor, the fact that he may have taken a drink has no bearing on the question of his negligence. Such testimony tends to raise in the minds of the jurors another issue— whether he was intoxicated — which, in the absence of other evidence, should not have entered into the determination of the case. Moreover, this question was of such a nature as to create an unfair prejudice against the driver and the owner.” Critzer v. Donovan, supra at 385 of 289 Pa., at 666 of 137 A.

7 . See Commonwealth v. Godfrey, supra at 436:

8 . Other contentions of the plaintiff have been considered by this court and rejected.