Shaw v. City of Philadelphia

Opinion by

Mr. Justice Gbeen,

This case is quite similar to that of Justice & Co. v. The City, just decided. The lease to the plaintiff, however, of the premises in question, was made more than a year before the passage of the ordinance directing the widening of the street. It was a continuing lease from year to year if the tenant held over, which he did. The assignments of error raise some questions which did not arise'in the Justice case, but we think they were correctly ruled by the learned court below. The jury was carefully and emphatically instructed that they could allow no damages to the plaintiff except for actual money loss caused by the necessary work of taking down with care, the front of the building in question. They were specially instructed that no allowance could be made for loss of profits and that element of the plaintiff’s claim was entirely stricken out. As to the first assignment of error we think the evidence was properly admitted, showing actual injury from dirt and grime which was necessarily encountered in doing the work, and Avhich,it was claimed, injured the stock more or less. The extent of that injury and whether the Avork could have been done without any loss arising from this source, raised a question of fact which Avas necessarily submitted to the jury and had to be determined by them.

We do not think the defendant Avas injured by the refusal of the court to strike out the testimony as to the item of $700 claimed for loss of profits. The court did most strongly and clearly instruct the jury that they could allow nothing for loss of profits, and as the entire amount of the verdict was only $562, it is evident the jury understood and obeyed the direction of the court. This disposes of the second and third assignments of error.

We do not understand how the city has cause of complaint with the answer to the first point of the defendant. The point claimed that the plaintiff could only recover for the depreciation in the market value of the leasehold. If that element of damage was sent into the jury box the result might, and probably would, have been much more serious to the city. But when the court had so decidedly limited the plaintiff to a recovery for nothing more than actual money loss incurred, the city obtained all the supposed advantage that could, in any point of view, have been derived from an affirmance of the point. We think also that an absolute affirmance of the point without qualification would have been error. The depreciation in the value of the leasehold would not be the only subject for allowance of damage.

The sixth assignment has been considered and disposed of in the Justice ease above referred to, and the seventh is without merit, as the question whether, under the evidence, the work might have been reasonably done without injury to the goods, was properly submitted to the jury.

Judgment affirmed.