Penn Electric Supply Co. v. Billows Electric Supply Co.

JOHNSON, Judge,

concurring:

Although, I agree with the result reached by the majority, I fear that the majority gives appellant credit for a stronger argument than he actually has under McCown v. Quigley, 147 Pa. 307, 23 A. 805 (1892). McCown involved a haberdasher who was a partner in one firm and a sole proprietor in his own men’s furnishing shop. The issue in McCown was for the jury to decide the contents of the packages and boxes which Quigley had appropriated to his own account. The plaintiffs estimated the values assuming certain contents. The trial court charged the jury, in effect, that if Quigley wanted to dispute what was in the boxes, he had to come forward with affirmative evidence. Therefore, I do not read McCown as approving a jury charge that “the defendant wrongdoer had the burden of showing damages.” Slip Opinion, at 5. The trial judge merely stated that “the burden is upon [the wrongdoer] to show what it was that he actually took” This is not a question of “showing damages” so much as it is a statement that it is the responsibility of the wrongdoer to seek to rebut the plaintiffs testimony-

utilizing the preceding analysis, I concur in the holding of the majority that the trier of fact must consider evidence of damages from both the plaintiff and defendant and must measure the value of damages in the context of the plaintiffs burden to prove the value of the converted property.