McCullough v. Holland Furnace Co.

• Decision Date: 09 April 1928
• Docket Number: 56
• Citation: 141 A. 631,293 Pa. 45
• Parties: McCullough v. Holland Furnace Co., Appellant
• Court: Pennsylvania Supreme Court

141 A. 631

293 Pa. 45

McCullough v. Holland Furnace Co., Appellant

No. 56

Supreme Court of Pennsylvania

April 9, 1928

Argued March 20, 1928

Appeal, No. 56, March T., 1928, by defendant, from judgment of C.P. Lawrence Co., Sept. T., 1926, No. 154, on verdict for plaintiff, in case of Foster N. McCullough v. Holland Furnace Company. Affirmed.

Trespass for personal injuries. Before PRATHER, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $5,915. Defendant appealed.

Error assigned, inter alia, was ruling on evidence referred to in opinion of Supreme Court.

The judgment is affirmed at the cost of appellant.

J Norman Martin, of Martin & Martin, for appellant. -- Charles Krantz was not competent to testify and his testimony was not competent.

Parol evidence can not be given of a fact in relation to which there exists a contract in writing: McKinney v. Leacock 1 S. & R. 27; Farmers Bank v. Whitehall, 16 S. & R. 89; Bryant v. Stillwell, 24 Pa. 314; Brown v. Burr, 160 Pa. 458.

The testimony of the witness did not show that he had knowledge of or was an expert on the matter of compensation received by magicians throughout the United States: Hoover v. Reichard, 63 Pa.Super. 517; McCarthy v. Ry., 211 Pa. 193; Simpson v. R.R., 210 Pa. 101.

W. Walter Braham, of Aiken & Braham, for appellee. -- The point at issue in situations such as that before the court is the loss of earning power of the plaintiff; it is not merely loss of wages: Yeager v. Brewing Co., 259 Pa. 123; McLaughlin v. City of Corry, 77 Pa. 109; Wensel v. S. Supply & Equip. Co., 72 Pa.Super. 56.

The burden is on plaintiff to show his earning power before and after the accident: McKenna v. Gas Co., 198 Pa. 31; McHugh v. Schlosser, 159 Pa. 480.

The question whether the witness was sufficiently qualified to testify as to the earning power of plaintiff was a question for the discretion of the trial court: Allegro v. Ins. Co., 268 Pa. 333; Ryder v. Jacobs, 182 Pa. 624; White v. R.R., 222 Pa. 534; Del. & Chesapeake Steam Towboat Co. v. Starrs, 69 Pa. 36.

The witness was clearly competent to testify as to plaintiff's earning power: DeHaas v. R.R., 261 Pa. 499; Wensel v. Equipment Co., 72 Pa.Super. 56.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

McCullough, the plaintiff in this case, was injured in a collision with the motor truck of the Holland Furnace Company, defendant, and brought an action to recover the damages sustained. A verdict was rendered in his favor, upon which judgment was entered, and this appeal followed. The only assignments of error referred to in the statement of questions involved, and pressed on argument, relate to the admission of the testimony of one Krantz, who gave evidence as to the earning capacity of plaintiff, and to this complaint alone reference need be made in disposing of the present controversy.

The plaintiff had followed for 35 years the profession of magician. He took with him his own company, playing during the winter in various theaters, and engaging in open air performances during the summer in Florida and elsewhere. He testified that his rate of pay in the various cities where exhibitions were held was usually fixed by contract, or special arrangement with the houses where he was employed. His average earnings, after paying his assistants, amounted to $ 200 a week, and net compensation of this amount had been earned by him for a considerable period of time.

Krantz, called as a witness to show earning capacity of the plaintiff, was the manager of one of the principal theaters in New Castle, Pa. He had known McCullough for several years, and was acquainted with the character of work performed by him, and on at least two occasions had seen his exhibition. He was permitted to testify as to the rate of pay usually earned by magicians, giving performances similar to that of plaintiff, in cities of the approximate size of New Castle, the latter having stated that the compensation received in communities of like population was the average sum received by him. He testified that though performers of the character of plaintiff were usually hired on a contract basis, yet there was a general market price in the theatrical profession for such acts as supplied by him, and that the minimum compensation in cities comparable to the one mentioned would be $350 for three days and $600 for a full week. From this amount the cost of assistants and other expenses, already fixed by McCullough, must be deducted. The offer of this evidence was objected to on the ground that all of the towns in which plaintiff appeared were not of the same size as New Castle, some being larger and others smaller, and, further, because of the limited number of times in which the witness had seen plaintiff perform.

It was competent for plaintiff to prove the value of the services which he was able to furnish and customarily supplied. This amount, taken in connection with evidence of his reduced capacity to earn after the accident, gave to the jury data upon which to base an estimate of one element of his loss. "In addition to a detailed statement of what was done, the value of personal services may be established circumstantially by proof of relevant facts calculated to show the real value of the services as charged": 22 C.J. 190. A person who is familiar, although only in a general way, with the value of services may state his estimate as to such value (22 C.J. 698), and the proof need not be clear and indubitable to entitle it to go to the jury: Simpson v. P.R.R. Co., 210 Pa. 101. So, as in the case cited, a witness having special knowledge of a plaintiff's business was permitted to state that plaintiff's services were worth five to ten thousand dollars a year, and, though such testimony was meager and indefinite, it nevertheless was held to be admissible. In order to determine earning capacity, recourse may be had to the general value belonging to things of a given class, in order to infer the worth of a particular member of that class: Thompson v. Boyle, 85 Pa. 477; Worden v. Connell, 196 Pa. 281; Blew v. Ryan Twp., 42 Pa.Super. 510; Wensel v. Standard Supply & Equipment Co., 72 Pa.Super. 56; Hale v. L.V.R.R. Co., 87 Pa.Super. 489. Testimony of this character is not conclusive, but is to be considered by the jury in connection with the other proven facts: Yeager v. Anthracite Brewing Co., 259 Pa. 123.

"Persons who follow a particular trade or line of work may be called as...