Rea v. Pittsburg & Connellsville Railroad

Opinion by

Mr. Justice Moschzisker,

The plaintiffs claimed compensation for 88,000 square feet of land lying between Greenough street and the yard tracks of the defendant railroad in the city of Pittsburg appropriated by the defendant company in March, 1903. Viewers were appointed April 13, 1903, and awarded $416,000, from which award both sides appealed. The appeals were tried May 4, 1908, and resulted in a verdict for $775,133.33, which the parties agree was composed of $616,000 principal and $159,133.33, compensation for delay in payment. On motion of the defendant the court below granted a new trial, without indicating its reason for so doing. At the retrial on April 5, 1909, a verdict was rendered for $765,893.33, which the parties agree was made up, $616,000 principal and $149,893.33, compensation for delay. Defendant’s motion for a new trial was refused, and it has appealed.

The first question we have to consider is whether the defendant was properly chargeable with compensation for delay. The defendant claims that this case is governed by the rule in Phila. Ball Club v. Phila., 192 Pa. 632, and Stevenson v. Coal Co., 203 Pa. 316, to the effect that where the delay is due to the unconscionably high demands of the claimant no such compensation should be allowed. The facts at bar are quite different from those in the cases relied upon by the defendant. There was no actual taking of property in either of those cases. The ball club case was an instance of a change of grade. A claim for $85,000 was “sought to be supported by theories and testimony of an illegitimate character,” and a verdict obtained for $29,000 was reversed. On a new trial “other theories and testimony were set up in support of a demand for $62,000, quite as indefensible and unreasonable as the demand in the first trial,” and a verdict for $39,000 was cut by the court below to $30,000. But the trial judge had instructed the jury, “You must add to the damages which the plaintiff has suffered reasonable compensation for the detention of those damages.” We said it was manifest that “the oppressive and unreasonable demands of the plaintiff” caused the delay, and reversed, holding that the plaintiff was not entitled to any damages on that score. The Stevenson case was an action of trespass to recover damages for the pollution of a stream with coal dirt, and this court characterized the plaintiff’s claim as “extortionate, unconscionable and incredible.”

In the present case the defendant company took actual possession of the plaintiff’s property in 1903, and has ever since enjoyed whatever revenues there were to be derived, therefrom'. At the trial the highest value claimed by the plaintiff was $12.00 a square foot, and the court below states in its opinion refusing a new trial that the jury were not asked for a verdict of more thaii $9.00 a square foot. The defendant in its plea declared the land only to be of a value of $1.00 per square foot, and gave testimony of a value of less than $3.00 a square foot. The jury rendered a verdict of $7.00 a square foot. Both parties appealed from the award of the viewers and all of the seven years’ delay, excepting two months, occurred subsequent to these appeals. In his instructions to the jury the trial judge said: “It is for you to say in the exercise of your sound discretion whether the parties are entitled to compensation for delay in receiving their money. That amount you may give or you may not, just as you conclude .... remembering that as a general principle where there has been delay which is not the fault of the plaintiff, and he has been kept out of his money, for the time lost the jury could give compensation by way of damages. But on the other hand, if it is the plaintiff’s fault and the plaintiff’s own conduct caused the delay, there can be no compensation by way of damages. . . . When you have fixed the market value at so much a foot, compare that with Mr. Rea’s price, and if you are fairly of the opinion and come to a fair and honest conclusion that the difference between the price you fix and the valuation placed by Mr. Rea was so great that you would say that it was an extortionate demand, that it was an inordinate demand, so that the officers of the railroad company were justified in contesting .... then it would be your duty, and I so instruct you, to refuse to give any damages for delay in payment. . . .” And after referring to the testimony, the charge continued: “But if ... . this was merely an honest difference of opinion .... you could give compensation for delay.” These instructions are practically in accord with those approved by us in the case of James v. West Chester Boro., 220 Pa. 490, and with the rule laid down in the cases relied upon by the defendants. It could not be said by the trial judge that the delay was due entirely to the size of the demands made by the claimants. The record shows no offer of settlement at any figure, nor do we find any indication therein that reasonably lower demands would have met with payment. The court left the question squarely and fairly to the jury, and we cannot say that there was any error in so doing. In addition to this, the court could not have affirmed the request covered by the first assignment of error, for it states that Henry B. Rea testified before the viewers that the market value of'the property was $15.00 a square foot. As pointed out by the trial judge in his charge, Mr. Rea denied this fact, claiming that he had merely said, “it was worth that to us.” The assignment is overruled.

Although it well may be contended that the verdict approaches the verge of excessiveness, this is not a case which moves us to interfere under the Act of May 20, 1891, P. L. 101. The power conferred upon this court by that act has never been exercised on the plea of the ex-cessiveness of the verdict, except in a most extreme case: Stevenson v. Coal Co., 203 Pa. 316. The question of the amount of the verdict is ordinarily for the court below, and where a grossly excessive amount is returned the trial court should never allow it to stand, no matter how many new trials it may be obliged to grant. The third assignment of error is overruled.

The plaintiffs offered in evidence for the purpose of proving title the deed of the Consolidated Gas Company to Henry Rea, Jr., dated June 21, 1900, showing a consideration of $140,000 paid by the grantee. When Henry B. Rea, one of the claimants, was upon the stand he testified that the value of the property was $12.00 a square foot, which would give a total of $1,056,000, and under cross-examination he was asked, “In June, 1900, what did you or your father pay for this property?” This was objected to, and the objection was sustained. The record then discloses that “Counsel for defendant offer on cross-examination to show by the witness for the purpose of testing the credibility of his testimony and the competency of his knowledge as to the value of this property in March, 1903, the fact that his father purchased the property appropriated by the railroad company in question in this case in the month of June, 1900, from the Consolidated Gas Company; that the said company had it upon the market for a number of years for sale, and was able to hold the property until it realized the fair market value of the same, and the price at the date of such purchase for which the said Consolidated Gas Company sold the property to the witness’s father. Also to show that there was no such increase in the market value of the property between June, 1900, and March, 1903, as would be indicated by the price paid for the property in June, 1900, and the estimate now given by the witness of its market value in March, 1903.” An objection to the offer was sustained. The defendant made practically the same offer in its case in chief, and this was refused. These rulings are assigned for error. The offers as a whole were properly refused. They contain too many points collateral to the main one sought to be proved, and the proffered evidence was not part of the defendant’s case in chief.

But after serious consideration we have reached the conclusion that under the peculiar facts of this case the question as to the purchase price of the property in June, 1900, was proper cross-examination and should have been allowed. In Davis v. Penna. R. R. Co., 215 Pa. 581, we said: “But after a witness has testified in chief .... the largest latitude should be allowed on cross-examination. ... In fact, any and every pertinent question may be put to him on cross-examination which will enable the jury to place a fair estimate on his testimony as to the damages sustained by the plaintiff by the construction of the road through the latter’s premises. The learned judge in his rulings failed to observe the difference between the well-recognized measure of damages in such cases and the right of defendant’s counsel to cross-examine the plaintiff’s witnesses so as to enable the jury to give due weight to their testimony.” It has been held in Pennsylvania from an early date that a consideration of particular sales in the neighborhood as fixing market value will not be allowed: Pittsburg, etc., R. R. Co. v. Patterson, 107 Pa. 461. But as early as 1861, in East Penna. R. R. Co. v. Hiester, 40 Pa. 56, we said on this subject: “The question might be proper by way of cross-examination to test the accuracy of the witness;” and in Becker v. P. & R. R. R. Co., 177 Pa. 252, “Of course, such evidence may be brought out by the cross-examination of witnesses;” in Henkel v. Terminal R. R. Co., 213 Pa. 485, “The good faith of a witness and the accuracy and extent of his knowledge may be tested by questioning him as to particular sales, to ascertain whether he knew of and considered them in forming an opinion. These inquiries go directly to the value of the opinion expressed;” in Gorgas v. Phila., H. & P. R. R. Co., 215 Pa. 501, “The witness may be asked in cross-examination as to his knowledge of particular sales and the prices asked for property in the community for the purpose of testing his competency to testify; but such evidence in chief is clearly incompetent;” in Schonhardt v. Penna. R. R. Co., 216 Pa. 224, “Where the witness has testified to value, his good faith and accuracy and the extent of his knowledge may be tested on cross-examination by questioning him as to particular sales of property similarly situated to ascertain whether he knew of them and considered them in forming an opinion.” The objection to the admission of testimony of particular sales is placed upon the theory that it would lead to the investigation of “collateral issues as numerous as the sales:” Pittsburg, etc., R. R. Co. v. Rose, 74 Pa. 362. It is plain that this does not apply to the, admission of testimony concerning a single sale of the very property in controversy.

If a claimant who has expressed an opinion on the value of his own property may be asked concerning sales of other properties in the neighborhood, for the purpose of testing his good faith, the question presents itself, why may he not be asked as to a sale of his own property, provided the sale in question is not too remote from the date of the appropriation. Surely in a case like the present where there is evidence showing prima facie a purchase price of $140,000, and the witness claims a value of $1,056,000, or an increase of over 650 per cent in two years and eight months, such an inquiry is relevant to test his “good faith,” if for no other reason; subject of course to his right to prove any relevant explanatory facts: Sanitary District of Chicago v. Pearce, 110 Ill. App. 592; St. Louis & San Francisco R. R. Co. v. Smith, 42 Ark. 265; Ham v. City of Salem, 100 Mass. 350. In many jurisdictions evidence of this character is considered directly pertinent on the question of value: St. Louis & San Francisco R. R. Co. v. Smith, 42 Ark. 265; Guyandotte Valley Ry. Co. v. Buskirk, 39 Am. & Eng. Railroad Cases (N. S.), 317; In re Department of Public Works, 53 Hun, 280; Enterprise Lumber Co. v. Porter, 46 So. Repr. 773; New Orleans, etc., R. R. Co. v. Barton, 43 La. Ann. 171; Cobb v. City of Boston, 109 Mass. 438; Indianapolis & Cin. Traction Co. v. Shepherd, 35 Ind. App. 601; Ham v. City of Salem, 100 Mass. 350; Peabody v. New York, N. H. & Hartford R. R. Co., 187 Mass. 489; Lanquist v. City of Chicago, 200 Ill. 69; Sanitary District of Chicago v. Pearce, 110 Ill. App. 592; Swanson v. Keokuk & Western R. R. Co., 116 Iowa, 304. But it is not necessary to go so far in the present case, for the defendant here sought to have the testimony admitted as proper cross-examination.

We have examined the cases called to our attention by counsel for the plaintiff, and we find nothing in them which necessarily excludes the question on cross-examination. Schuylkill Navigation Co. v. Farr, 4 W. & S. 362, was an action to recover damages for injuries to a grist-mill and furnace caused by the raising of a dam. The plaintiffs sought to introduce into their testimony in chief evidence of the amount of money expended in the erection of a furnace which they claimed had been rendered useless. We said: “If the measure of damages is the injury done to the property estimated by its decreased value, then it is plain that the defendants cannot be made to pay the expenses of erecting the furnace, which may have exceeded the real value of the property.” There is nothing in this case on the question of the right of cross-examination. Commonwealth v. Pittsburg & Connellsville R. R. Co., 58 Pa. 26, was a proceeding by the state to take the franchise and property of the defendant company under an act of assembly which provided that as full compensation the company should be entitled to receive payment for expenditures made in connection with work or construction upon its road. We held this rule of valuation to be inadequate and unjust, and in so doing Mr. Justice Sharswood said by way of illustration: “It would be no just compensation to an individual to pay him for his land and improvements merely what they had cost him. Their value may have been doubled in the lapse of time and by the change of circumstances.” This is quite true as a general proposition, the application of which would depend upon the facts in each particular case; but it has no relevancy to the question we have under consideration.

Mifflin Bridge Co. v. Juniata County, 144 Pa. 365, was a proceeding to condemn the bridge and the franchise of the owning company. A witness who had taken the contract for the erection of the bridge was called by the company and asked the value of the structure. This was objected to on the ground that he should' have been asked the contract price. We held that the objection was not well taken, and said, “The true question was the value of the bridge, not what it cost. The contractor may have taken it at too low a figure, or the owner may have paid too much. The county is entitled to pay for it at its actual value at the time of taking.” Bo many elements enter into the contract price of a. bridge, dependent upon the cost of materials and labor at the time of its construction, the competition in the letting of the contract, and a hundred and one other things, that the price paid would be a most uncertain guide. This case must be taken on its own facts, and has no controlling force on the question before us. In Davis v. Penna. R. R. Co., 215 Pa. 581, an effort was made to show the price which the claimant had paid for his farm seventeen years prior to the appropriation. We said: “Such evidence would have given the jury no proper estimate of its value immediately before the taking by the railroad.” The time was too remote. In Schonhardt v. Penna. R. R. Co., 216 Pa. 224, counsel for the defendant proposed to ask the plaintiff on cross-examination ■ what the two adjoining properties sold for within the past two years, “for the purpose of having the testimony go to the jury on the question of the value” of the plaintiff’s property. We said: “The offer was properly rejected. ... It is within the limits of proper cross-examination to show that the witness is unfair or that his opinion is founded on a misapprehension of facts, but it is not proper under the guise of cross-examination to develop as affirmative evidence of value facts that neither party could have shown in chief.” Here one of the avowed purposes was to have the testimony go to the jury on the question of value, not to test the credibility or good faith of the witness. Of course, under our authorities, the offer was rejected. These are the only cases approaching the point under investigation to which we have been referred.

In East Brandywine & Waynesburg R. R. Co. v. Ranck, 78 Pa. 454, the defendant proffered evidence that the plaintiff had offered to sell his farm for a certain price, and the rejection of this evidence was assigned for error. In reversing we said: “While the evidence referred to was not conclusive, nor perhaps very important, it ought not to have been excluded.” The fact that the plaintiff had offered to sell his farm at a certain price did not fix its value, but under the circumstances of that case we viewed it as some evidence to go to the jury; and so under the circumstances of this case, while the testimony sought to be elicited by the question propounded to the claimant concerning the price paid for the land would not fix the value of the property, it would be some evidence to be considered in weighing his opinion as to its value: Kentucky & Indiana Bridge Co. v. Held, 16 Ky. Law Rep. 160; Rosenstein v. Fairhaven & Westville R. R. Co., 78 Conn. 29. Where such testimony is offered the question of its acceptance or rejection will necessarily depend upon the circumstances in each particular case, the disparity between the price paid and the value claimed, the length of time between the sale and the appropriation, and other elements which may present themselves tending to show the worth of the testimony as evidence affecting the importance, and throwing light upon the accuracy and good faith, of the opinion expressed by the witness. Therefore the question will always be one for the exercise of discretion on the part of the trial judge. But in the present case the record indicates that the trial judge did not reject the testimony in the exercise of such discretion, but rather because he considered it not proper cross-examination. We are of opinion that it was proper cross-examination and should have been admitted. We overrule the twelfth and thirteenth assignments of error and sustain the eleventh.

The market value of a particular piece of real estate is to be measured by the price usually given for such property in that neighborhood, “making due allowance for differences of position, soil and improvement:" Searle v. Lack. & Bloomsburg R. R. Co., 33 Pa. 57. In Henkel v. Terminal R. R. Co., 213 Pa. 485, we said: “We see no reason why a party against whose interest a witness has testified may not show that the opinion expressed is valueless as evidence because it is, founded on a misapprehension of the facts. . . . This does not lead .... to the trial of collateral issues. It goes only to impair the value of an opinion which has become evidence in the case by showing it is based on a misapprehension of the real facts.” In the case at bar the price paid in the sale of a property known as the Klondike Warehouse figured very largely with nearly all of the witnesses as a standard of value of real estate in the vicinity. In the examination of witnesses counsel for the plaintiff called attention to the fact that this sale was the nearest in locality to the plaintiff’s property, and he examined the owner of this Klondike property with great particularity concerning the sale. Both counsel for plaintiff and defendant interrogated witnesses regarding the value of the buildings as distinguished from the value of the property as a whole, and in this way they derived the square foot value of the land. Plaintiff’s witnesses fixed the value of the improvements at a comparatively low figure, which of course proportionately increased the value of the lot. The defendant’s offer to prove the fair value of the buildings at the time of the sale was rejected, and counsel contends that had this testimony been admitted it would have shown the improvements to have been worth at least double the value placed on them by certain of the plaintiff’s witnesses; which well might have materially affected the value of the opinion expressed by these witnesses. On this state of facts we are of opinion that the testimony should have been received. The fourth assignment of error is sustained.

It becomes unnecessary for us to pass upon the remaining assignments of error. To enter upon a discussion of those which question the competency of certain of the witnesses called by the plaintiff to prove value would unduly extend this opinion. The competency of at least six of the witnesses called for that purpose is not questioned in the assignments, and presumably their testimony would have been sufficient to take the case to the jury. But as the case must go back for another trial we take occasion to say that although “the market value of land is not a question of science and skill upon which only an expert can give an opinion,” Penna. & N. Y. R. R. & Canal Co. v. Bunnell, 81 Pa. 414; yet in each case the trial judge should see to it that every witness called to prove value has a proper foundation of knowledge to make his opinion of some real worth, before admitting it as evidence: Friday v. Penna. R. R. Co., 204 Pa. 405. In large cities “neighborhood” is a relative term, and the field which a witness may take into consideration in forming an opinion of the selling price of land in the vicinity of a particular property, should not only be reasonably adjacent thereto, but it should be of the same general character as the immediate locality in which such property is situated; otherwise the opinion is of little value.

The judgment is reversed with a venire facias de novo.