Withrow v. Walker

Opinion by Rice, P. J., The first assignment alleges error in the exclusion of evidence. The evidence offered was relevant, but as no exception was taken to the ruling the assignment must be dismissed. Besides that, the evidence, though at first excluded, was subsequently admitted when its relevancy was shown. So no harm was done. The remaining assignments relate to the charge of the court. The action was brought before a justice of the peace, and for a cause of action of which justices of the peace have jurisdiction, namely, the conversion of a personal chattel. The cause of action remained the same when the case was brought into the common pleas by appeal, and the measure of damages was that which applies in the common-law action of trover, now trespass. The general rule as to the measure of damages in such action is well settled to be the value of the goods at the time of the conversion, to which the jury may add interest up to the date of the verdict, unless there were unusual circumstances attendant upon the conversion or detention, such as willful wrong, fraud or outrage, when the jury may give more: Berry v. Vantries, 12 S. & R. 89; Taylor v. Morgan, 3 Watts, 333; Neiler v. Kelley, 69 Pa. 403; Learock v. Paxson, 208 Pa. 602. There may be other cases in which more may be given than the value with interest, arising out of the nature of the chattels, but this class of cases need not be considered here. In one view of the case the measure of damages would have been the fair market value of the chattel alleged to have been converted by the- defendant, as the learned judge correctly instructed the jury at the outset of his charge upon that subject. But as this might have been more or less than the price ($2.00) the plaintiff paid for it, an instruction that if the jury found in his favor their verdict should be for the price he paid would have been erroneous. There is one part of a sentence in the charge, which, taken by itself, might bear that construction. This, however, was qualified in the same sentence by. adding, “if you should find that its fair value.” This qualification, taken i [160] n connection with the appropriate instruction at the outset, freed this part of the charge from reversible error. But there is another view which the jury could take. There was evidence from which they could find that the plaintiff bought the chattel and left it temporarily on the premises with the consent of the vendor; that the defendant, a succeeding tenant, sold it to a junk dealer who removed it; that when the plaintiff came to the premises to take it away the defendant denied any knowledge of the chattel; that in course of the plaintiff’s efforts to ascertain its location he had a search warrant issued and thereby found the chattel on the premises of the junk dealer, who told him he had bought it from the defendant; and that they then went before the justice of the peace and the accused told him the tale, whereupon he was discharged. What other search the plaintiff made, the time occupied therein, and the specific amount of any expense he incurred is not shown by the testimony. The plaintiff, being asked what damages he sustained, contented himself with answering: “Well, the value of the machine and the cost I was put to in the other case and lost time, must have $40.00.” The learned judge properly told the jury that whether any damages should be allowed “by way of expense in tracing” the machine depended on their determination of the disputed question of fact whether the defendant denied all knowledge of the machine, and thus deceived the plaintiff, when the latter went for it. We cannot say that the court ought to have withdrawn from the jury’s consideration evidence as to the defendant’s deception, and to have charged them that in awarding damages they could not go beyond the value of the machine at the time of the conversion and interest on that sum to the date of verdict. But in instructing the jury that they might award the plaintiff the full amount of his claim upon the theory, as inferable from the context of the charge, that his testimony would warrant a finding that he had been, actually damaged to that amount, greater latitude was given than the evidence warranted. Not only was his testimony vague and indefinite as to “lost time” and how he lost it, but it was wholly insufficient to warrant a recovery for the cost he was put tQ in thq larceny case, and would be so even if he had [161] shown the amount and nature of that expense. As it is impossible to determine from their verdict to what extent the jury awarded compensation on account of these two items of the plaintiff’s claim, particularly that for the cost he was put to in the larceny case, there is nothing to be done but to send the case back for a retrial, unless the plaintiff elects to remit from the judgment all beyond the value of the chattel, with interest from date of conversion. The contentions that the charge as a whole gave undue prominence to the testimony of the plaintiff and was disparaging to the testimony of the defendant and defendant’s witnesses, and that as a whole it was biased, misleading, incomplete and unfair, are not sustained. But as the case may go back for retrial we deem it worth while to comment on that portion of the charge where the learned judge said: “ Now, if that is the case, if you believe the story of the plaintiff, and Mr. Walker as he now testifies, why didn’t Mr. Walker tell Mr. Withrow that when he first went there? is a pertinent inquiry for you. Well, he says he did; he says when Withrow came there asking for his machine he told him that he did not know whose the machine was but he sold it to the junk dealer. Now there is a direct contradiction between these two men, and if he did tell him that, what would have been the necessity for Withrow going and suing the junk dealer, if Walker had told him, when he went up there inquiring about this machine of Withrow’s, that he had sold it, as Walker said he did, — what would have been the necessity of Withrow going and making the information against the junk dealer?” The plain answer to this inquiry is that, so far as the evidence shows, there was no necessity, and we think the jury should have been so instructed if they found the fact to be as testified to by the defendant. But the remarks of the learned judge taken in connection with what immediately follows seem to suggest the thought that the action of the plaintiff in prosecuting the junk dealer tends to corroborate him and to lessen the probability of the truth of the defendant’s assertion. Perhaps this is not what was meant, but if it is, significance was given to the action of the plaintiff to which it was not entitled. [162] It is ordered that if the plaintiff, within thirty days from this date, shall file a paper in the office of the prothonotary of this court remitting $14.00 of the amount of the judgment the prothonotary shall enter on his record an order affirming the judgment as thus reduced; but if such paper shall not be filed he shall enter the order, “judgment reversed and venire facias de novo awarded.”