Wissinger v. Valley Smokeless Coal Co. ( 1922 )

Opinion by

Mr. Justice Frazer,

Plaintiff sued to recover damages for injury to real estate in Stonycreek Township, Cambria County, resulting from failure of defendant, who owned and removed the underlying coal, to leave sufficient surface support. The trial resulted in a verdict and judgment for plaintiff and defendant appealed. The questions raised by the assignments of error relate to the qualification of witnesses and to alleged errors in exclusion of testimony.

The first four assignments allege error in admitting testimony of four of plaintiff’s witnesses and aver these witnesses failed to meet the required qualifications for testifying to market value of plaintiff’s farm before and after the damages were sustained. Plaintiff’s land was used for farming and dairying purposes. The witnesses in question resided in the neighborhood and testified to having known the property for periods of from thirty to forty years. They testified to being familiar with the location and extent of the farm, the nature and condition of the improvements and with the market value of land in the vicinity and the prices at which similar properties sold or were held for sale. While these witnesses were not in the real estate business and did not pretend to be experts, occupation or business of this character was not necessary to qualify them to give an opinion as to the value of the property. The requirement to render a witness competent in actions of this character is that he should have such reasonable knowledge of values as could be expected, in view of the circumstances of the particular case. In sparsely settled neighborhoods where sales are few, a witness should not be required to have as full knowledge of sales as in other localities where frequent transfers are made. To require the same standard of qualifications in each case might result at times in excluding all evidence of value: White v. Western Allegheny R. R., 222 Pa. 534. Although several witnesses here may not have shown as extended opportunities to form opinions as to values as other witnesses engaged in the business of dealing in real estate, this affected only their credibility and the weight of their testimony and not its competency.

The fifth assignment refers to the refusal of the court below to permit defendant to cross-examine plaintiff, .who testified in his own behalf on the question of damages, as to his knowledge of the sale of land known as the Risch farm. The witness had given his estimate of the value of his farm before and after the injuries complained of. He was then asked by defendant’s counsel, on cross-examination, whether he was “familiar with the sale of the Risch farm lying directly across the Stony-creek from [his] property, containing 120 acres, sold in fee in 1916 for the price of $7,000.” Objection to this question was sustained by the court. Defendant contends it was proper on cross-examination to interrogate the witness in regard to the specific price of properties other than those on which he relied in his direct examination and, in support of this contention, cites Llewellyn v. Sunnyside Coal Co., 255 Pa. 291, where it was said (page 296): “The rule as established by our cases is that, while a party cannot bring out on cross-examination evidence of the price paid for other property unless the witness has already testified that his opinion is based on his knowledge of the sales of such property, yet, if he has so testified, he may be cross-examined as to the prices, for the purpose of testing his good faith and credibility.” This rule is based on the assumption, first, that the witness testified in his direct examination to having based his opinion on knowledge of the sales of such other particular properties and, second, that they are in the same neighborhood and similarly situated: Penna. Co. for Insurances on Lives, etc., v. Phila., 268 Pa. 559, 562. These elements do not appear in the present case. The witness in Ms direct examination was not asked about tbe Risch farm, nor did be indicate that be possessed information of tbis particular sale, nor that be bad considered it in forming bis opinions as to tbe value of tbe land in question. True, tbe witness gave bis opinion of tbe value based on a question wbicb included within its scope tbe improvements on plaintiff’s farm, tbe uses to wbicb tbe land might be put “as well as other farm land in tbe vicinity.” Tbis in itself, however, was not sufficient to warrant tbe conclusion that “other farm land in tbe vicinity” included tbe Risch farm, especially as tbe witness bad specified particular properties in tbe neighborhood without including that farm. There being nothing on tbe record to show that tbe property in question was situated similarly to plaintiff’s farm, or that plaintiff was aware of tbe price at wbicb it sold, and bad considered that price in fixing bis opinion of value, tbe rejection of tbe evidence is not ground for reversal.

Tbe sixth assignment alleges tbe trial judge erred in striking out tbe testimony of an expert witness called by defendant. Tbe witness in question was a real estate broker residing in tbe City of Johnstown, unfamiliar with tbe property in question at tbe time tbe damage was sustained and bad merely visited tbe farm a short time previous to tbe trial. Tbe trial judge ruled tbe witness to be competent and be was then asked what, in bis opinion, was the amount of damages suffered by plaintiff as a result of tbe injury to tbe land. Before being cross-examined as to bis qualifications, be was asked, whether be bad beard tbe testimony of witnesses as to tbe condition of plaintiff’s farm, previous to tbe acts complained of and whether be would “consider tbe items testified to in tbis case along with [bis] experience in tbe real estate business,” in fixing bis opinion as to tbe extent of tbe depreciation, to wbicb he answered in tbe affirmative. Assuming be was properly qualified as an expert, Ms opinion, based on tbe testimony of other witnesses, would, under tbe circumstances of tbis case, be inadmissible. Where facts are admitted or proven by evidence which is not conflicting, an expert may give his opinion founded on that testimony (Gillman v. Ry., 224 Pa. 267), but, where there is a conflict, he must base his opinion on facts within his knowledge or on an assumed state of facts or on the testimony given in behalf of one of the parties and made known to him and which, for the purpose of his opinion, he assumes to be true: Gillman v. Ry., supra; McDyer v. Rys. Co., 227 Pa. 641. To permit him to base his opinion on contradictory evidence, or on the whole case as adduced by both plaintiff and defendant, would permit him to usurp the functions of the jury and determine the case on its facts.

The assignments of error are overruled and the judgment is affirmed.