Royer v. Ephrata Borough , 171 Pa. 429 ( 1895 )

Opinion bv

Mr. Justice Mitchell,

The statement declares that the plaintiff is the owner of the land in fee, and in possession, but we are not furnished with a copy of the plea, so that there is nothing before us to indicate that plaintiff’s title was in contest further than as it was a part of his case to be proved to enable him to recover. For this purpose all he was required to do was to show a prima facie title, and this he did by showing a parol gift from his father, possession taken and maintained for fifteen years, the house erected and improvements made, .death of the father, and a quitclaim deed from the other heirs to himself. This would have been enough to take the case to the jury even in a direct issue on his title, and being entirely uncontradicted, fully justified the learned judge below in telling the jury that plaintiff was the owner of the land.

The case of Erie R. W. Co. v. Knowles, 117 Pa. 77, relied on by appellant as showing the strict rule as to the grade of evidence required to establish title by a parol gift between parent and child, was very different from the present. In that case the railway company had a deed from the plaintiff’s mother and the title was the main issue in the contest. Both parties claimed under the same source of title, one by deed and the other by prior parol gift, and of course the evidence of the gift was required to be of the same grade as if the plaintiff was claiming against the mother, the alleged donor, herself. In the present case there was no opposing title, and as already said plaintiff was only bound to make out a prima facie case.

Plaintiff was a competent witness to prove his title. He was not claiming adversely to his deceased father. The statute does not make a claimant an incompetent witness merely because a former owner of the thing or contract in action is dead, but only when “his right thereto has passed to a party on the record who represents his interest.” The light of plaintiff’s father did not pass to the appellant borough, and the latter did not represent his interest in any way. Such interest, whatever it was, would be totally unaffected by this judgment.

The answer of the witness Musser, contained in the fourth assignment was irregular and inadmissible, but it was not brought out by any improper question what he would give for the property, but was the witness’s own form of expressing his opinion of what the property was worth. It is doubtful if he meant anything more than that. It would have been more regular to have struck it out, but the record does not show any direct request to the judge to do so, but only an exception to the answer, for the form of which neither the appellee nor the court was responsible. It was a mere irregularity and we are not convinced that it did appellant any harm.

The learned judge in commenting to the jury on a part of the evidence relating to the measure of damages, referred to the time of the taking, but added “I don’t mean just a day or two before, but three or five or six months before or after-wards.” This was an inaccurate, and no doubt an inadvertent expression, but taking it in connection with the context we do not think the jury could have been in any way misled by it. The proper rule had been carefully given to the jury in the early part of the charge. But the plaintiff in testifying had mentioned “ accidentally ” as the judge describes it, an offer for the property several years before. This, the jury were told explicitly was not evidence, and the judge again repeated the rule as to the value before and after the taking, and then added the words excepted to. In their connection we think they were merely intended and must have been so understood, to prevent the jury from considering too remote a time, and to confine their attention to a period at or about the taking. In that there was no error.

The last assignment is hypercritical. The witness expressed his judgment as to the amount of plaintiff’s damages, and was immediately cross-examined as to his estimate of values before and after the taking. The form of the question was somewhat irregular, but the substance of the testimony was competent and the error did no harm.

Judgment affirmed.