Springer v. Allegheny County

• Citation: 165 A.2d 383,401 Pa. 557
• Parties: Robert E. SPRINGER v. COUNTY OF ALLEGHENY, Appellant.
• Decision Date: 15 November 1960
• Court: United States State Supreme Court of Pennsylvania

Page 383

165 A.2d 383

401 Pa. 557

Robert E. SPRINGER v. COUNTY OF ALLEGHENY, Appellant.

Supreme Court of Pennsylvania.

Nov. 15, 1960.

Rehearing Denied Dec. 15, 1960.

Maurice Louik, County Sol., Francis A. Barry, First Asst. County Sol., Pittsburgh, for appellant.

John A. Metz, Jr., Mayer Sniderman, Metz, Cook, Hanna & Kelly, Pittsburgh, for appellee.

Before CHARLES ALVIN JONES, C. J., and MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

CHARLES ALVIN JONES, Chief Justice.

The defendant County appeals from the order of the court below granting a new trial, on the plaintiff's motion, in an action for the assessment of damages for the County's appropriation of property of the plaintiff in an exercise of its power of eminent domain.

The property involved embraced 69 acres, more or less, of unimproved land in Find lay Township, Allegheny County, situate on a township road. A small portion of the surface had been stripped for the removal of underlying coal and most of the remaining surface was covered with brush and other undergrowth. As above indicated, there were no buildings or other structures on the property which, throughout its length, was subject to an easement for a traversing 10-inch high-pressure commercial gas line.

The trial judge set aside the jury's verdict for the plaintiff by awarding a new trial for the following assigned reasons: (1) the verdict was against the wright of the credible evidence, (2) defendant's counsel made prejudicial remarks in his opening to the jury, and (3) the trial judge erred in charging the jury with respect to damages for delay in payment for the property taken.

Counsel for the plaintiff reminds us of the well established rule that, before the granting of a new trial will be reversed, the appellant must show that the trial court was guilty of a palpable abuse of discretion or based its action upon an erroneous application of the law, citing Jess V. McMurray, 394 Pa. 526, 527-528, 147 A.2d 420. Fully mindful of this rule, we find no merit in any of the reasons assigned by the court below as justification for the new trial order.

At trial, the plaintiff introduced opinion evidence of three real estate appraisers that the fair market value of the property at the time of the taking was $210,000, $205,000 and $206,000, respectively. The owner himself testified to a fair market value of $225,000. The County called two real estate appraisers who gave as their separate opinions that the fair market value of the property at the time of the condemnation was $48,500 and $50,000. The jury returned a verdict for the plaintiff in the sum of $76,000. The Board of Viewers had awarded the plaintiff $86,296.50. Each of the parties appealed from the viewers' award to the court of common pleas where both actions were consolidated for the trial involved on the instant appeal.

The lower court's assumption that the verdict was against the weight of the credible evidence transgressed the bonds of the judicial function. The credibility of the oral testimony, which was concerned with the fair market value of the property, was peculiarly for the jury to appraise and not for the court. Nor can it properly be said that the verdict was against the weight of the evidence. The value of the land appropriated was the only substantial issue that the jury had to resolve. There was no dispute as to the extent of the property taken nor its location, condition, topographical characteristics or the plaintiff's right to recover its fair worth. In arriving at a just determination of the fair market value, the jury had as criteria the customarily widely disparate opinions of the real estate experts who testified for the respective sides. It was the province of the jury to weight the credibility of the valuation witnesses' testimony and to determine what the land taken was fairly worth at the time of the condemnation. The jurors had a right to, and undoubtedly did, bring to bear, in apprising the expert testimony, what they had perceived with respect to the property at the time they formally viewed it for trial purposes and, further, exercised their own good common sense. To overthrow the verdict on the ground that it was against the weight of the evidence would, in the light of the record, amount to a judicial usurpation of the jury's province.

As in the case of Decker v. Kulesza, 369 Pa. 259, 85 A.2d 413, we find it impossible to consider the verdict as being against the weight of the evidence. True enough, there was conflicting testimony from the various witnesses who testified for the respective sides. But, a new trial is not to be granted merely because of a conflict in the evidence. That rule has been reiterated and applied many times. See, e. g., Jones v. Williams, 358 Pa. 559, 564-565, 58 A.2d 57; Wilson v. Kallenbach, 332 Pa. 253, 255, 2 A.2d 727; Harmer v. American Railway Express Co., 269 Pa. 271, 272, 112 A. 446; Kennelly v. Waropoyak, 266 Pa. 94, 96, 109 A. 608. The real estate experts produced by the County were admittedly well qualified to render their opinions of the property's fair market value. In fact, the trial judge specifically recognized that one of the County's two real estate experts had 'good qualifications' and that the other was 'well qualified.' It was not proper for the court en banc to act upon an unwarranted assumption that these witnesses were not as credible as the witnesses produced by the plaintiff. Yet that is exactly what the court did by presuming to appraise the relative credibility of the opinion witnesses. In the existing disparity between the experts as to the fair market value of the property, only the jury could competently determine which of such testimony was worthy of being reckoned with, and to what extent, as a guide to a just finding. See Crumrine v. Washington County Housing Authority, 376 Pa. 234, 238, 101 A.2d 676.

It what the court meant by its reference to the credible evidence was that the jury should have given greater effect to evidence adduced by the plaintiff and returned a larger verdict, it is to be noted that the verdict was not so disproportionate to what the Board of Viewers had awarded the plaintiff as to justify the trial court in concluding that it was inadequate. Cf. Mazur v. Commonwealth, 390 Pa. 148, 151-152, 134 A.2d 669. After all, at $76,000, the verdict was still $26,000 more than the higher of the County's two valuation witnesses whose testimony apparently was more helpful to the jury in arriving at a proper conclusion than was that of the plaintiff's experts.

The alleged improper remarks of counsel for the defendant, which the court below has assigned as a reason for the new trial order, were never placed on record until counsel for the plaintiff filed his motion for a new trial following the rendition of the jury's verdict. In other words, the remarks, thus belatedly attributed to counsel for defendant (who categorically denies ever having uttered them), were not made a matter of record either at the time of their alleged utterance or at any other time during the course of the trial, but first came into the case in the plaintiff's 8th reason for a new trial which was as follows: '8. The Defendant's Counsel in his opening remarks to the Jury stated * * * And you must remember 'this is Taxpayers money * * * you are giving away Taxpayers money.'' Just what the deletions, which the asterisks indicate, were does not appear. The court below, although expressly recognizing that no objection had been made by plaintiff's counsel at the time of the statement and that counsel should have moved for the withdrawal of a juror, nevertheless concluded that 'the comment was so fundamentally prejudicial that a new trial should be awarded' and entered an order accordingly. Such action was plainly error.

The procedure for bringing alleged improper remarks of counsel at trial upon the record in order that they may be made the predicate of an assignment of error on appeal is well established and, in the interest of fairness, must be scrupulously followed. Specifically, it is incumbent upon complaining counsel to except promptly to offending remarks, when made, and move forthwith for the withdrawal of a juror. If the motion is denied, counsel is then in position to assign for error on appeal the court's refusal so to act and thus have the alleged impropriety of the excepted-to remarks or comments passed upon by the appellate court. If complaining counsel wishes, however, not to have the trial continued and, consequently refrains from moving the court for the withdrawal of a juror, but excepts nonetheless to the opposing counsel's remarks, he should thereupon request the court to instruct the jury to disregard the alleged improper matter. The court's refusal so to do, if excepted to, would likewise be reviewable on appeal as a ground for a new trial.

With respect to a lower court situation, somewhat analogous to the present, this court said,--'if it appeared from the record that counsel for appellees was guilty of the bad faith charged to him by the seventh assignment of error, we would unhesitatingly reverse this judgment. The record, however, does not only not disclose the misconduct complained of * * * but the charge is unqualifiedly denied by the accused. In Commonwealth v. Weber, 31 Atl. 481, 36 W.N.C. 193, and Holden v. Penna. R. R. Co., 169 Pa. 1, 32 Atl. 103, we have clearly indicated how objectionable remarks of counsel can be made part of the record brought up for review; and if, in this case, such remarks were made, counsel now complaining of them failed to do what he ought to have done when they were uttered.': Guckavan v. Lehigh Traction Co., 203 Pa. 521, 525, 53 A. 351, 352 (Emphasis supplied.)

In Narciso v. Mauch Chunk Township, 369 Pa. 549, 554, 87 A.2d 233, 235, 33 A.L.R.2d 438, the sine que non of a timely exception and motion in respect of alleged improper remarks of counsel was plainly recognized where we...