Provident Life and Trust v. Philadelphia

• Decision Date: 10 March 1902
• Docket Number: 131
• Citation: 51 A. 597,202 Pa. 78
• Parties: Provident Life and Trust Company v. Philadelphia, Appellant
• Court: Pennsylvania Supreme Court

51 A. 597

202 Pa. 78

Provident Life and Trust Company v. Philadelphia, Appellant

No. 131

Supreme Court of Pennsylvania

March 10, 1902

Argued January 21, 1902

Appeal, No. 131, Jan. T., 1901, by defendant, from judgment of C.P. No. 3, Phila. Co., Dec. T., 1895, No. 491, on verdict for plaintiff in case of Provident Life & Trust Company et al., Executors of George W. Lukens, Deceased, v. City of Philadelphia. Affirmed.

Appeal from report of jury of view. Before McCARTHY, J.

At the trial expert witnesses for the plaintiff variously estimated the depreciation of the property and market value to be from $7,600 to $11,666. Witnesses for the defendant estimated that the property was benefited from $428 to $2,600.

The court charged in part as follows:

Gentlemen you have had the benefit of viewing this property and you have heard the testimony of all these experts, and it will be for you to say, after carefully weighing this testimony whether this property was damaged by the opening of Church street in 1892, or whether it was benefited. If the property was damaged by the opening of Church street, if its market value was less immediately after the opening then it was immediately before, then you ought to give the plaintiffs damages for the difference. If, however, after careful consideration, you find that this property was not damaged at all by the opening of Church street at that date, or that it was benefited, then your verdict ought to be for the defendant.

[Assuming that you do find that the plaintiffs are entitled to a verdict, assuming that you do find that the market value of that property was depreciated by the opening of this street on April 23, 1892, then I charge you, that if the plaintiffs are entitled to any compensation by reason of the opening of Church street through their property in 1892, you must remember that they have lost the use of such a sum for a period of nearly nine years, and, if you find a verdict for the plaintiffs, you should allow them damages for the detention by the city of the payment of such compensation.]

Mr. Miller: I want to call your honor's attention to one matter. Your honor in charging so as to the length of time since the opening of the street with a view to an allowance in case any damages were given, did not refer to one consideration which seems to me to be a proper one under the decision I handed you, and that is, that if the plaintiffs were excessive in their demand, that then that would be a consideration against the making of an allowance for the lapse of time.

Mr. Leaming: On the question of interest there is no testimony whatever as to what the plaintiffs' demand was.

The Court: [I do not remember any testimony which indicates that there was any excessive or unreasonable demand on the part of the plaintiffs, such as is referred to in the opinion of the Supreme Court that you handed up to me. I do not care to say anything more to the jury on that subject.]

Verdict and judgment for plaintiff for $8,000. Defendant appealed.

Errors assigned were (1,2) above instructions, quoting them.

The judgment is affirmed.

E. Spencer Miller, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant. -- The instructions as to the damages in the matter of interest was erroneous: Phila. Ball Club v. Philadelphia, 192 Pa. 632; Klages v. P. & R. Terminal Co., 160 Pa. 386; Becker v. P. & R. Terminal Co., 177 Pa. 252.

Thomas Leaming, for appellee, cited: Penna. Schuylkill Valley R.R. Co. v. Ziemer, 124 Pa. 560; Weiss v. South Bethlehem Boro., 136 Pa. 294; Klages v. P. & R. Terminal, 160 Pa. 386; Becker v. P & R. Terminal Co., 177 Pa. 252.

Before McCOLLUM, C.J., MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE FELL:

The instruction to the jury, that if the...