*1 KREMER, Appellant, Clare GALLERY, INC. JANET FLEISHER Superior Pennsylvania. Court Argued May 1983.
Filed Oct. *3 Philadelphia, appellant. for Angstreich, E. Steven Jr., for Unger, Philadelphia, appellee. Richard C. SPAETH, HES- CERCONE, and Judge, Before President JOHNSON, JJ. TER, BROSKY, WIEAND, BECK BROSKY, Judge: Appellant from on the verdict. appeal judgment
This the sale of her at a sought damages obtained, Appellee sought, and alleged their value. below Appellant counterclaim. raises five issues for verdict on its First, in precluding that the trial court erred our review: res, on introducing evidence the value of the appellant Second, that it error to two allow Third, evidence. hearsay documentary introduction of that against appellant an adverse inference should not have been appellant’s failure to call a certain wit- regarding allowed Fourth, ness. that an witness should not have expert given a false and without testimony upon hypothetical based Fifth, foundation. proper charge was faulty on neglecting charge applicable principles law. agency find trial is on the required We basis of issues five, one and above.
The facts are as follows: relevant October, 1974, In engaged Kremer Fleisher’s services to of paintings. Twenty-two paintings sell a number were to Fleisher’s subsequently gallery, they delivered where were and stored. Fleisher billed Kremer for photographed expenses storage, insurance and a photography, prior appraisal paints, of twelve of the but this bill was never In the met to discuss paid. January, parties the bill and the unsold and that one or paintings agreed two of the auctioned off in order to test the should be sale for the Proceeds from the were paintings.
market auction agreed bill. It was that the applied unpaid be in the third floor at the auction place gallery to take shipped were from Fleisher’s house and two however, sale from that The gallery. paintings, marked for the floor where gallery, auctioned from first lower were a total of paintings brought artwork was sold. quality painting; at auction: for one for $250.00 $550.00 $800.00 sought damages other. Kremer’s suit for Fleisher’s the allowing the to be sold for a negligence considered to be less than their true value. Fleisher she liability and countersued for the excess of Kremer’s denied outstanding through bill over the sum received sale of the paintings.
I. Value the Paintings. the court not allowing appellant The first issue involves three separate types regarding to introduce evidence The court opinion value Gf below wrote its “This rendered moot question that: verdict in effect authorized the sales finding plaintiff and hence is not entitled to damages.” circumstances, agree
Under other factual we would because, this This although with conclusion. would be of properly may grounds exclusion admissible evidence be granting prejudiced for new trial where the exclusion has granted new trial will not be where the evidence appellant, Melcher, not have affected the verdict.1 Eldridge (1973). Thus, when the has returned verdict for defendant on the issue of jury exclusion of evidence of is not liability, damages usually grounds granting a new trial. Metzler v. Rapho Twp., (1909); Beittel, 26 Lanc.L.Rev. 231 Minich v. 26 Lanc.L. (1909). Here, Rev. 248 returned a jury verdict for defendant on complaint both counterclaim. 1. Or where other evidence of the same fact was introduced party applying for the new trial.
389 case, general this However, under the facts of this appellant’s of the value of apply. does not Evidence rule Thus, verdict. it jury’s could have affected the paintings damages. to the issue of only not relevant claim was appellant’s which based was theory upon her for a selling paintings appellee negligent establishing Evidence a dis- far below their value. price and the between the value of crepancy to the issue of commanded was of course relevant they that, of damages, but before it was relevant issue had as appellants to whether a result liability, specifically, suffered an Restate- appellee’s negligence injury. See § (Second) ment of Torts 281 Evidence of a value- was relevant to the issue of price discrepancy liability. discrepancy Evidence of the extent of the was relevant to damages. the issue of Because evidence is relevant to one it (damages) may issue does not mean that not also be (liability). relevant to another issue assertion, to the trial court’s the evidence in Contrary but, question only liability was not relevant to since it went case, the heart of admission appellant’s might its Thus, resulted in a different verdict. any pieces if admitted, evidence should otherwise have been a if contrary might verdict have resulted from the admission of them, one of trial is mandated. any v. Billings Auth., 622 at Upper Twp. Merion Pa.Cmwlth. (1979).2 A.2d 967 at 970 It remains for us now to deter mine, one, by pieces one whether the of evidence were admissible and whether their admission could have resulted in a different verdict. pieces
The first of the three
of evidence we will review
some
prepared by appellee valuing
was a document
other
prepared
the same artist.
cannot,
case,
we
under the facts of this
conclude
Since
contrary
admitted,
certainly
verdict
resulted had this evidence been
grant
judgment
McKnight
City
we do not
n.o.v.
Philadelphia,
This evidence was relevant because
*6
mutually comparable.
same artist are
The value of paint
ings comparable to those sold is relevant
to the value of
Deitch Co. v.
generally
Property
See
Board those sold.
Assessments,
213,
(1965).3
417 Pa.
It
an
was also admissible as
admission of a party-op
Adams v. Mack
exception
an
rule.
ponent,
hearsay
leer,
248,
244
Pa.Super.
(1976).
at
Where fact was intro trial, party seeking duced a new a trial is in not order. It is true that Janet Fleisher conceded indirectly $32,500, that she had appraised eight paintings for that the excluded written appraisal would have said no more was, however, (“I than that. It concession grudging appraised then”). hundreds and hundreds of since A jury likely—quite properly—to assign is extra weight to here, evidence. That documentary especially likely was expert where appellee’s emphasized greater authority of written, oral, as to an opposed appraisal. The admission appraisal—a professional of Fleisher’s written admission— paintings comparable value of to those sold was $32,500 might well have increased the jury’s assessment of value of the that were sold.
Therefore, in respects, all the valuation should have been admitted and its absence justifies grant of new trial.
The second piece of evidence which excluded was appellant’s opinion of the value of the two paintings.
This evidence should have been admitted. The owner
of personalty traditionally
permitted
has been
to testify to
its value
civil cases.
“The theory which underlies these
owner,
an
owner,
cases is that
reason of his status as
qualified
give
deemed
to
estimates of the value of what he
Warlow,
owns.” Commonwealth v.
237 Pa.Super. 120 at
However,
mandate a new
this error does not
re
admitted,
have merely
the evidence would
had been
testify
Appellant
permitted
other evidence.
peated
appraisal
Fleisher’s
of the value
to Janet
assessment of their
offer of
shows that her own
proof
appraisal
identical to the
she as
value would have been
as to her
Appellant’s testimony
to Janet Fleisher.
cribed
therefore
of the value of the
opinion
own
the lower court’s
Consequently,
cumulative.
been
See,
a new trial.
excluding
require
e.g.,
error
it does not
York,
*7
Ins. Co. New
Pittsburgh Nat’l Bank Mut. Life
of
96,
(1980),
493 Pa.
aff'd,
A.2d 1206
Pa.Super.
The third of excluded evidence was Ross, purchaser of the immediately preceding David the years ago testified that 35 to 40 He would have artist, including the same the bought paintings by he three $2,750. of his 34 On the basis by appellee, two sold business, in the art Ross would experience years in value since the appreciated testified that of his purchase. time question prior pur of whether evidence of a on the issue of current value price
chase admissible too remote in time depends upon prior whether the sale was relevant. be Rullo, Sportswear, Inc. v. Whistler testimony The essence Ross’s here, the expert given he could as an that nature of say the sale was not too remote. question, prior the items probative proposition would have been of the testimony His the current value appellant sought to establish—that were sold they exceeded for which permitting testimony Freeman’s. Not was therefore error, error, testimony might and serious for the well have assessment of the impact jury’s had a substantial on the current value of the and therefore on its verdict. also, then, This is an error of a justifying remedy new trial.
II. Other Issues. Appellant raises four additional issues. Those issues two, numbered three and four in the initial statement of the issues above will not be treated substantively this opin- ion. Since we hold that a new trial is required by issues five,4 one and only number two reasons could justify treatment of the other three issues. One such reason if of these any presented be issues errors of the court below which should not repeated be on retrial. None present these three issues does an error to be avoided in trial. The possible second reason to write on these issues would be their presentation of novel issues of law— if even we did not ultimately conclude that error was committed. None of these three issues falls into this cate- will, gory therefore, either. proceed We directly to the remaining issue in which we discern reversible error requir- ing a new trial—the to the charge jury.
III. Charge Jury on Agency.
Appellant contends that the trial court erred in not charging jury on the applicable principles of agency law. *8 Specifically, argues she that the jury should have been informed of an agent’s to his duty principal; the standard owed;5 of care the agent’s thereof;6 for liability breaches and that an is agent responsible to his principal for the agent’s actions of the agree. servant.7 We 4. Treated in the next section. (Second) Agency,
5. Restatement of 379. § (Second) Agency, 6. Restatement of 401. § (Second) Co., Agency, 7. Restatement of 405. Klein v. Stern & 144 § 470, Pa.Super. here, A.2d 19 566 While summarized our appellant’s point charge discussion covers 6, reference through for 1 and theory above, rested on the appellant’s claim As noted a for selling her negligent appellee that was decide The could not jury true value. far below their deciding without first appellee negligent whether there was appellee to that appeared it whether should for might sold that the be risk an unreasonable first if sold on its Freeman’s them than their true value less floor. appel- on the issue of whether charge jury
The the given from preponder- “If find you stated: negligent lee was more were worth the ance evidence sale, Janet at the and defendant was realized than duty negligent, her to or was Fleisher breached plaintiff add- damages.” (emphasis you plaintiff must award then or ed). concepts “duty” “negligence” Nowhere were possibly We see how the could jury defined. don’t it was charge the standard which gleaned this charge therefore to measure the facts. supposed guide it with “a reasonable provide jury error: didn’t alleged negligence the determination of defendant’s on the of care degree required [citation omitted] Indus- Crotty Reading defendant [citation omitted].” Inc., 1, tries, 345 A.2d also, Thus, on we new grant this trial. basis is remand- Judgment on the verdict vacated and case relinquished. a new ed for trial. Jurisdiction WIEAND, J., concurring opinion JOHN- filed which J., SON, joined.
WIEAND, Judge, concurring: agree jury regarding I that the trial court’s instructions to a an were duty principal by agent care owed Therefore, a trial is inadequate. necessary. However, I agree analy- with the majority’s am unable *9 arising appellant’s ses of the issues several various prove sold; and, offers to the value of the there- fore, I do not join portion of the majority opinion.
JOHNSON, J., joined. Pennsylvania v.
COMMONWEALTH of McCAIN, Leroy Appellant. Superior Pennsylvania. Court of Submitted June 1983. Filed Oct.