440 Pa. 71 | Pa. | 1970
Opinion by
This is an appeal in an eminent domain proceeding from an order dismissing the Commonwealth’s motion for a new trial, sustaining the verdict of the jury and entering judgment thereon. The underlying facts in the condemnation case have already been discussed at length in our earlier opinion in Morrissey v. Dep’t. of Hwys., 424 Pa. 87, 89-90, 225 A. 2d 895, 896 (1967), and need not be reiterated. In Morrissey, we reversed the entry of judgment on the verdict and mandated a new trial. Essentially we are concerned with the sequence of events that have transpired in the proceedings below following our ruling that now lead to this second appeal.
In accordance with the opinion in Morrissey, a new trial was held, resulting in a jury verdict on October 19, 1967, for condemnees in the amount of $99,400, consisting of severance damages in the sum of $70,000 plus $29,400 detention damages. A second judge heard the Commonwealth’s argument in support of its motion for a new trial on August 8, 1968, and the aforementioned order denying the motion was entered on November 7, 1969. This appeal followed.
Several reasons are advanced by the Commonwealth as justification for a new trial: (1) the verdict was
In respect to the first contention, the Commonwealth does not deny that the appellees-condemnees are entitled to a verdict in their favor since the only matter for the jury to determine was the amount of damages. Sterner v. Commonwealth, 325 Pa. 326, 190 A. 891 (1937). Insofar as it is argued the extent of damages was exaggerated, i.e., excessive, and that the charge misled the jury into a consideration of improper items of damages, these issues will be discussed infra. However, it is also suggested that the charge did not give a “balanced review of the testimony.” Besides our belief that the charge was fair and impartial, we note that, despite the trial judge’s request for points of correction, no disagreement whatsoever was voiced by the Commonwealth to the content of the trial judge’s narration of the evidence presented. As we indicated in Lobalzo v. Varoli, 422 Pa. 5, 220 A. 2d 634 (1966), a new trial should not be granted based on general alle: gations of prejudice in the charge when any such prejudice could have been promptly eliminated by an indication of disagreement on the part of counsel. This contention is singularly without merit.
Secondly, we must consider whether the verdict was excessive. It must be remembered that while $99,400
We have indicated many times that the discrepancy in valuation between various experts is properly a factor for the jury’s consideration. Poulos v. Commonwealth, 438 Pa. 442, 266 A. 2d 100 (1970); McConn v. Com., Dep’t of Hwys., 431 Pa. 574, 246 A. 2d 677 (1968); Morrissey v. Dep’t of Hwys., 424 Pa. 87, 225 A. 2d 895 (1967) ; Frontage, Inc. v. Allegheny County,
The Commonwealth’s first requested point for charge revolves about the extent of damages caused by the loss of access to Carwithan Avenue. As appellees’ yard foreman had testified that this access was not regularly used, one of the Commonwealth’s requested points for charge was: “I charge you that Carwithan Street was legally opened on the City Plan,
Instead of the requested charge, the trial judge substantially incorporated our language cited above and added: “Under the evidence you may find that the taking of this right of access, even though it may not have been regularly used, resulted in damage to the property of plaintiffs in addition to the taking of the land itself.” Besides reflecting our former opinion, this charge appears to develop the very notion the Commonwealth sought to convey in its requested point. There is no error.
One of appellees’ expert witnesses testified that the condemnation reduced the possibility of erecting a gasoline station which he opined was the best use of the corner of appellees’ property at the intersection of Frankford and Carwithan Avenues, even though the then existing zoning prohibited such use. The trial judge denied another of the Commonwealth’s requested points: “The Commonwealth requests the Court to charge the jury that on November 3, 1960 approximate
At the close of appellees’ testimony, a short recess was taken. As the last witness, a Mr. Mellhenny, left the #¡and, the forelady openly asked, “Mr. Mellhenny, do you have a son who goes to Temple University?” This was brought to the attention of the court and counsel and a sidebar discussion followed. It was agreed among counsel as well as the trial judge that the forelady be excused and replaced by an alternate juror. This was done and the trial continued after the judge cautioned the remaining jurors against any repeated occurrences. The Commonwealth now contends that such prejudice was engendered as to require the judge to withdraw a juror and declare a mistrial. For several reasons we find there to be no error.
In the first place, the Commonwealth’s reliance on Schankweiler v. Pennsylvania Light Company, 275 Pa. 50, 118 A. 562 (1922), is misplaced. While a new trial was granted due to a juror’s expression to a witness, “I admire your way of doing business,” several factors there involved are not now pi’esented: (1) there was an expression of sympathy; (2) the juror was not removed; and (3) a motion by counsel to withdraw
Lastly, the Commonwealth suggests the trial judge erred in not correcting his charge sufficiently so as to avoid confusion in respect to a view being evidentiary. After the jury was empaneled and sworn, but before any testimony was received, a view of appellees’ premises was conducted. In his charge to the jury concerning the view, the trial judge stated: “It was never intended that the view of the Jury should be substituted for the evidence and that they should make up their verdict from the view in disregard of the evidence.” However, the judge was later corrected by appellees as to the evidentiary value of a view.
We have often reiterated the principle laid down in Hisak v. Lehigh Valley Tramsit Co., 360 Pa. 1, 6, 59 A. 2d 900, (1948) : “Where an erroneous instruction consists of a palpable misstatement of the law, it is not cured by a conflicting or contradictory one which correctly states the law on the point involved, for the jury, assuming, as is their duty, that the instructions are all correct, may as readily have followed the incorrect as the correct one and it is impossible to know which .they accepted [citations omitted].” Accord, Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 218 A. 2d 303 (1966) ; Pedretti v. Pgh. Railways Co., 417 Pa. 581, 209 A. 2d 289 (1965); Lieberman v.P T C, 410 Pa. 179, 188 A. 2d 719 (1963) ; Stegmuller v. Davis, 408 Pa. 267, 182 A. 2d 745 (1962). However, none of these cases involved an empress correction by the trial judge of his earlier, erroneous instruction. In Black v. A. E. Troutman Co., 385 Pa. 138, 141, 122 A. 2d 201, 202 (1956), this Court stated: “As plaintiffs contend, an erroneous statement of the
Judgment affirmed.
Their respective valuations of the property damages were as follows:
Witnesses for Appellees Before Value After Value Damages
Frank E. Mitchell $1,030,500 $ 910,500 $ 120,000
John B. Mellhenny 1,119,563 982,313 137,250
Witnesses for Commonwealth
Bernard O. Meltzer 1,018,700 995,700 23,000
Walter A. McOlatchy 850,000 825,000 25,000
Mr. Bynn, appellees’ yard foreman, had testified that while appeUees had access to Carwithan Avenue, which access was now precluded by the condemnation, that passage had only been utilized “occasionally” and not “regularly.” There was also conflicting testimony as to the extent of rearrangement of the yard necessitated by the taking.
The Eminent Domain. Code, Act of June 22, 1964, Special Sess., P. L, 84, art. VII, §703, as amended, 26 P.S. §1-703 (Supp. 1970) provides: “Either party may, as a matter of right, have the jury . . . view the property involved, . . . and the view shall be evidentiary.” Although this taking occurred November 3, 1960, the Eminent Domain Code, Act of June 22, 1964, Special Sess., P. D.