Altman v. Lande , 1925 Pa. Super. LEXIS 358 ( 1924 )

Argued November 13, 1924. The plaintiff's claim was for the value of five Wilton rugs which the defendant undertook to transport with other household furniture to the City of Brooklyn and which were never delivered. At the trial the contract of carriage was proved and the loss of the property. The only subject presented for our consideration as set forth in the statement of the questions involved is the competency and sufficiency of the evidence of value. The rugs were delivered to the defendant on December 28, 1922. They had been purchased about three months before that date by the plaintiff at Gimbel Brothers' store in Philadelphia. The sale was in the regular course of business and the price was $325 in cash. They were used in the plaintiff's home from the time they were purchased until they were delivered to the defendant. The family consisted of the plaintiff, his wife and a son. The evidence was that the rugs were in practically as good condition as when they were bought. This appeared from the testimony of Joseph Steinberg who was a dealer in household furniture and examined the rugs with reference to the purchase of them two or three days before they were taken out of the house; and by Benjamin Futernick, a dealer in general merchandise, who had seen them often in the plaintiff's residence and who twenty years before had been engaged in the purchase and sale of rugs. According to the testimony of these witnesses the rugs were worth nearly as much as they cost. The appellant's complaint is that these witnesses were not experts on the subject of price, but this objection cannot be maintained. Each of them had some knowledge on the subject. It is true the learned judge held that Steinberg was not an expert on the subject in reply to the defendant's objection to the question: "Can you tell us what in your opinion those rugs would sell for at retail in stores in December, 1922?" but this ruling did not affect the material part of the testimony of the witness. His general knowledge as disclosed by the examination made him competent to testify as to the condition of the rugs and also as to their market value. The competency of a witness on such a subject must to a large degree be committed to the discretion of the court, and an appellate court will not reverse if the witness had any claim to special knowledge which made his testimony useful. The degree of his knowledge may affect the weight of his evidence, but does not disqualify him if he appear to have had some familiarity with the subject. The discretion thus exercised will not be overruled unless it has been greatly abused: Allen's App., 99 Pa. 196; Stevenson v. Coal Co., 203 Pa. 316; Thompson v. Zartman Lumber Co., 55 Pa. Super. 328. The evidence of the witnesses referred to related closely to the time when the defendant is said to have taken possession of the property, and each of them had some knowledge of the value of such property. Moreover the price paid for an article of general use in the open market is evidence of market value. It is not in itself the value of a thing, but is evidence of value. It raises an inference of what the thing is worth, but does not create a conclusive presumption. The jury could take into consideration the fact that the rugs were used in the home of a small family for a short time and could see as well as an expert that their value to the owner would be little impaired by use during the short period they were in the house. The learned trial judge very properly therefore took into consideration the evidence of value presented.

The judgment is affirmed.