Tolentino v. Bailey

*15Dissenting Opinion by

Hoffman, J.:

Appellant raises numerous contentions of error in a trial which, resulted in a jury verdict of $225,000.00 for personal injuries sustained by the plaintiff-appellee.

Plaintiff, a platform worker, was endeavoring to unload the cargo of a parked truck owned by the appellant, when the truck suddenly moved causing plaintiff to be pinned beneath a forklift truck upon the loading platform. It was testified at trial, and not disputed, that as a result of injuries sustained by the plaintiff to his right arm, his disability was permanent and any future heavy work precluded. After two related surgical procedures, plaintiff was caused to leave his employment because of continuing pain. A jury returned him $225,000.00 for compensation of his losses, and a court en banc denied appellant’s post-trial motions. This appeal followed.

Hearsay Evidence

First, it is contended that the trial court erred in admitting the testimony of two co-employees, who testified as to a number of conversations with the defendant Bailey and with two managers of Continental Trucking concerning the allegedly defective condition of the same truck involved in the mishap prior to the accident.

Generally, a person may not testify as to a conversation he had with a party to the action, where the testimony is admitted to establish the truth of the statement. Such an extra-judicial statement would be excluded on the basis of the hearsay rule. However, where the alleged conversations are admitted, not to establish truth, but to indicate that the party had notice of a condition or knowledge of certain facts, this has never been held to be hearsay, and is admissible. *16Henry, Pennsylvania Evidence, §441; Weglein v. Golder, 317 Pa. 437, 177 A. 47 (1935). The trial court did not err in admitting the testimony of plaintiff’s co-employees.

Expert Opinion Evidence

Next, the appellant argues that it was error to admit the testimony of a safety engineer who, in rebuttal, opined that the accident was caused by the defects existent in the truck. On direct examination, a defense witness contended that this accident would have occurred even with a sound truck. Since a critical issue in the case was that of causation, and since the alleged defects did consist of matters involving “technical knowledge and experience beyond that of the average man,” Steele v. Shepperd, 411 Pa. 481, 484, 192 A. 2d 397 (1963), it was proper to admit the opinion of an expert witness to establish causation. At time of trial, defense counsel did not object to this witness’ qualifications. He may not now circuitously raise the issue by suggesting that the witness’ testimony was not necessary. The witness was given a proper hypothetical question based on the facts developed in the record. The trial court correctly concluded the witness’ testimony “was restricted to matters within his field of expertise, and involved an assessment of the mechanics of the braking system of the truck in relation to the size and weight of the truck, and the weight of the forklift driven by the Plaintiff.” Having charged the jury adequately on the right to disbelieve all or part of the testimony of the expert witness on the basis of credibility, no error can be found with this contention.

Status of State Inspection Garage

The last contention of error related to the appellant’s liability centers around the admission at trial of *17rebuttal evidence demonstrating that the garage which had inspected appellant’s truck had its certificate of inspection suspended indefinitely because of “improper practices”. Defense counsel objected to the introduction of this evidence as irrelevant and prejudicial. Despite the citation of cases permitting evidence of irregularities in accounts or records to impeach said records, the lower court relies on cases where the impeaching evidence was clearly linked to and discredited the validity or authenticity of the documents. See, Funk v. Fly, 45 Pa. 444 (1868); Weamer v. Juart, 29 Pa. 257 (1857); and, Huffman Estate (No. 3), 349 Pa. 59, 36 A. 2d 640 (1944).

As part of its case, the defendants introduced inspection certifications indicating the satisfaction of minimal state safety standards. The accident occurred in October of 1962. Plaintiff was permitted to introduce evidence that in May of 1963 the Commonwealth had cancelled the certification of the inspection station because of “improper practices”. The witness admitted that the decertification or any related investigation had not disclosed any impropriety with respect to the inspection of defendant’s truck. In fact, the decertification arose because it was determined that the station had “inspected” trucks the size of which could not be adequately handled by the facilities operated by the station owner. Defendant’s truck was not in the group of those trucks so classified.

On the basis of this evidence, improperly admitted, plaintiff’s counsel in closing argument accused the defendant of having produced the inspection certificate “to mislead you, to confuse you . . .” and that they were trying to “get away with” something.

While the admission of evidence is generally within the sound discretion of the trial court, it is error to admit evidence which is in no way probative of some matter, but, in fact, acts to prejudice or mislead the minds *18of the jury. Velott v. Lewis, 102 Pa. 326 (1883); Geesey v. Albee Pennsylvania Homes, Inc., 211 Pa. Superior Ct. 215, 235 A. 2d 176 (1967). Since there was no evidence that the suspension of the inspection station was in any manner related to the inspection of defendant’s truck prior to the accident, the admission of such evidence could only cause the jury to improperly speculate and conjure up some collusive relationship that issued a patently illegal certificate. The combination of this evidence and the comments of plaintiff’s counsel was so prejudicial to the defendant’s case, that a new trial is mandated.

Evidence of Lost Earnings

Appellant contends that as an element of damages it was improper to admit the employment records of fellow employees to establish appellee’s purported lost wages. This, appellant asserts, is even more compelling since the plaintiff voluntarily left defendant’s employment.

It is apparent from the record that it was within the province of the jury to accept the testimony of the plaintiff and treating physicians that he stopped working for the defendant because of inability to continue with his disability. There is sufficient evidence to prove that the plaintiff did not voluntarily quit his employment, but was compelled to do so because of severe pain and inability to do heavy work.

The trial court admitted the records of co-employees who had worked at the same job and for approximately the same duration as the appellant. Because of his disability, the court properly introduced these records to demonstrate what plaintiff’s earnings would have been if he could have continued in his capacity. Both Pennsylvania and Third Circuit cases support the admission of evidence of earnings of people who perform the job *19which an accident precluded a plaintiff from performing. See, e.g., Clark v. Butler Junction Coal Co., 259 Pa. 262 (1918); Thompson v. Trent Maritime Co., 353 F. 2d 632 (3d Cir. 1965).

Computation of Impairment of Earning Capacity

Appellant raises two contentions of error in the consideration of plaintiff’s loss of earning capacity. First, appellant contends that it was error to admit computation charts but should have required the production of actuarial testimony on the subject from a qualified expert. While the appellant cites a number of Third Circuit opinions emphasizing the need to support claims of earning capacity impairment by actuarial testimony and tables, such policy is a matter of procedural law, and as such, we are not bound to follow. See, Guaranty Trust Company v. York, 326 U.S. 99 (1945).

Until 1964, the law of this Commonwealth was that the use of actuarial tables or testimony by an actuary was prohibited, and the introduction thereof constituted reversible error. McCaffrey v. Schwarts, 285 Pa. 561, 132 A. 810 (1926). That view remained viable until the case of Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A. 2d 657 (1964). Brodie, while specifically overruling McOaffrey, stated that guidance could “be provided, at least in part, by permitting the use of accepted tables or the testimony of a qualified expert . . . .” 415 Pa. at 301. The Supreme Court emphasized that the reception of such actuarial evidence was permissible, and not mandatory. See also, Jenkins v. Pennsylvania Railroad Co., 220 Pa. Superior Ct. 455, 458, 289 A. 2d 166 (1972).

Finally, appellant contends that the trial court’s charge on reduction to present worth of damages repre*20senting future losses was inadequate, claiming that it was not analytical enough hut made the matter entirely speculative. The Court’s charge was a lengthy and painstaking delivery of the applicable law. Apparently, at time of trial, defense counsel could find no error or point needing further clarity, since he opted not to except to any portion of said charge. The jury in addition made no further inquiry into the manner of computation of verdict.

The Court’s charge on present worth encompasses nearly three pages from the record. It is not merely an exposition of the law or definition of the legal terms. The trial court illustrated the computation by giving what is popularly called the “one dollar due in one year” example. He clearly explained the meaning of getting an amount for future losses today, despite the fact that the “loss” is not experienced until a time after the date of the trial. The trial judge stated that an award would yield the plaintiff certain interest on the money, if theoretically invested until such future date.

Reading the Charge of Court as a whole, and examining the cases in Pennsylvania on “present worth”, there is nothing that requires the trial court to charge a jury with any greater degree of certainty than did the trial judge in the instant case.

Since it is impossible to say what weight the jury gave to the evidence introduced by plaintiff on the decertification of the inspection station (discussed, supra), the order of the court below should be reversed, and appellant granted a new trial.

Pkice, J., joins in this dissenting opinion.