Stevenson v. Ebervale Coal Co.

203 Pa. 316 | Pa. | 1902

Opinion by

Mr. Justice Dean,

Nearly all the assignments of error in this case have been, in substance, passed upon in appeal between same parties, opinion by Justice Beown, 201 Pa. 112. The history of the case, in any of its material facts, has not been changed by the trial which has resulted in this appeal. As we read the testimony of the witnesses as to the market value of the property before the damage complained of and its market value as affected by the wrongful acts of defendants, the verdict approaches the verge of that excessiveness, which in Smith v. The Times Publishing Co., 178 Pa. 481, moved us, under the power conferred by the act of May 20, 1891, to interfere. As a majority of the court held in that case, although a power which the legislature in the exercise of its functions under the constitution might confer, it was one rarely to be exercised. It was exercised for the first time in that case, seven years after the passage of the act; we have persistently declined to invoke it since, although often urged so to do. And while it is argued earnestly by appellant’s counsel, that this case calls loudly for our intervention, we do not think this verdict is so excessive as to move us to reverse, for that reason.

As to appellant’s first assignment of error, which alleges certain witnesses were incompetent to speak as experts, their incompetency is not so apparent, as will induce us to declare the admission of their testimony was error. The incompetency of such testimony is sometimes so glaring as to make it clearly inadmissible. But, generally, that is a question for the discretion of the trial court. As we said in Delaware, etc., Steam Towboat Co. v. Starrs, 69 Pa. 41, “if the court should think they are prima facie qualified, it will then be for the jury to decide whether any, and, if any, what weight is to be given to their testimony. It is a matter very much within the discretion of the court below, and if it appears that the witnesses offered, had .any claim to the character of experts, the court will not reverse on the ground that their experience was not sufficiently special.” And this applies to the second, third, fourth, fifth and eleventh assignments; they are all overruled.

As to the sixth assignment, appellants offered evidence to prove that plaintiff could procure pure water from another source. This testimony the court rejected. We said in the former opinion in this case, that plaintiff “ had the right to use this water as it naturally flowed over his own property,” and that his right to decline the use of any other water was just as absolute as to enjoy his own unpolluted. We cannot see how such evidence could be used in mitigation of damages for infringement of an undisputed right. No wrongdoer can trespass on the right of a citizen and mitigate his wrong by saying, “ You can secure as valuable a right elsewhere.”

Error is alleged in the answers of the court to defendant’s first, seventh, eighth and eleventh written prayers for instruction on the question of damages. These answers, when read in connection with what is said in the general charge, are substantially correct. In the former opinion our Brother Bkown laid down the rule for the computation of damages as follows: “ The cost of removing the culm ot coal dirt, unless the expense of removal exceeds the value of the entire property, in which case the value of the propertjr is the limit of the measure of damages, and in no event can there be a recovery in excess of the entire property for the permanent injury.” In language plain enough to be understood by the average juryman the court followed this rule. Judging from the weight of the testimony as read in these paper-books, the jury did not strictly heed the instruction : we cannot certainly tell, for the evidence in print may not accurately convey to us the truth as it did to the court below. Apparently, the cost of removal and any loss of business occasioned by the wrong was far less than the amount of the verdict. It is argued by appellee’s counsel'that the culm cannot be removed; this is a mistake, for if it were solid rock it could be removed. But assuming that the act of defendants had resulted in an entire destruction of the mill property as such, the apparent variance between its market value and this verdict is quite large. It was the clear duty of the court below, in peremptory language, to hold the jury down to the lawful damages and if they disregarded the instruction to set aside the verdict. What the plaintiff had a right to ask was, that he be made whole, not rich. It was the duty of the court to see that this result, and this alone, was reached. But in review, we in this case can go no farther than to say the instruction was not erroneous.

The twelfth assignment, to part of the charge of the court on the measure of damages, raises a point not without merit. The court says : “ Taking into consideration not only the testimony of plaintiff’s witnesses but also the testimony of defendants’ witnesses, the character of the equipment, the length of time it had been in use, taking all those things into consideration, find the value at that time. Say that were in 1898,1899 or 1900, whatever time you find the operations of the mill were completely stopped, it would then be in your discretion to add a further sum by reason of the detention, not to exceed the legal rate of interest upon the value so found down to the present date.” The court then further says, “ This is a discretionary power you have, this allowance of a further sum called interest, but not strictly so.” In Phila. Ball Club v. Phila., 192 Pa. 632, we said: “In a land damage case, the owner of the land is not entitled to damages for detention of payment, where it appears that the detention was caused by his grossly excessive and unreasonable demands, which it was the duty of the officers of the city to resist.” And then further in same opinion is this language: “ But it must not be expected, that the imaginary, remote, speculative and illegitimate demands that have thus far been set up, or any others of like character will ever receive the sanction of this court,” but in an earlier case, Richards v. Citizens’ Natural Gas Co., 130 Pa. 37, Justice Mitchell, speaking for the whole court, discussed this question and clearly pointed out the distinction between cases where compensation for detention of damages in the nature of interest might be allowed and where it should not. He says: “ Interest is recoverable of right, but compensation for deferred payment in torts depends on the circumstances of each case. The plaintiff may have set his damages so inordinately high as to have justified the defendant in refusing to pay. Or in other ways the delay may have been the plaintiff’s fault. ... In such cases the jury would not, and certainly ought not, to make the allowance.”

Here the plaintiff in his statement claimed specifically for the deposit of culm and the interruption of business at the mill, $75,000 ; then further, for the pollution of the stream, and the destruction of about twenty acres of land, for agricultural purposes, $25,000 more, making altogether $100,000. Perhaps, the mere averments in the statement would not of themselves be sufficient to warrant the belief of an extortionate demand, for it is a common practice in pleading to fix the amount claimed at a higher sum than the plaintiff is willing to accept or expects to get, but here the unconscionable demand in the statement is followed by a like demand at the trial. The two sons of plaintiff, Charles and William Stevenson, were both called by plaintiff as witnesses and each computed the damages at $100,000. So incredible was their testimony and so exhorbitant the demand, that the court felt compelled to instruct the jury, practically, to disregard both. Beyond question, the plaintiff set his demand inordinately high; defendants must resist by litigation with its consequent delays. Therefore, they were excusable in not promptly paying, and should not be subject to a penalty for nonpayment. The jury should have been peremptorily instructed, that under these circumstances damages for detention, not to exceed legal interest, should not be allowed; that they had no discretion in the matter. To this extent the twelfth assignment of error is sustained, the judgment is reversed and v. f. d. awarded.