Wilhelm v. Uttenweiler
Wilhelm v. Uttenweiler
Opinion of the Court
Opinion by
Defendant appeals from a judgment in favor of plaintiff in an action of trespass to recover the value of brass and copper parts of the equipment of plaintiff’s brewery, alleged to have been stolen by a third person and purchased by defendant, a junk dealer, with knowledge they were stolen.
The first assignment of error is to the refusal of the trial judge to withdraw a juror and continue the case because of improper remarks made by counsel for plaintiff in his address to the jury. The language complained of was, “you all know that there is more thieving in the junk business than in any other business.” That the statement might' tend to prejudice defendant in the eyes of the jury cannot well be disputed; the withdrawal of a juror, however, for the reason given, was a matter resting in the sound discretion of the trial judge, and, in determining whether that discretion was abused, the circumstances under which the remark was made may properly be considered (Cook v. Erie Electric Motor Co., 225 Pa. 91; Miller v. Phila. R. T. Co., 231 Pa. 627; Llewellyn v. Wilkes-Barre, 254 Pa. 196), and also the precaution, if any, taken by the court and counsel to remove the prejudicial effects.
The testimony shows defendant’s previous indictment for receiving the property in question knowing it to be stolen, to which he made no defense; and, upon being convicted, he was sentenced to pay a fine and costs and undergo a term of imprisonment. He was, however immediately paroled. It was also undisputed that a witness called by the Commonwealth named Pruitt, who had stolen the appliances and sold them to defendant, was at the time serving a term of imprisonment for the offense.
The second assignment is to the ruling of the trial judge in allowing plaintiff to prove the “fair value” of the stolen parts of the brewery equipment instead of the market value. In the course of the trial, counsel and witness, as well as the court in the charge, used the terms “value,” “fair value,” “market value” and “worth” interchangeably to indicate market value: Hoffman v. Coal Mining Co., 265 Pa. 476. Considering the entire testimony, as well as the court’s instructions to the jury, it clearly appears the case was tried on the theory that the true measure of damage was the cost of replacement of the stolen articles, including not only their value but also the expense of putting them in place, unless the jury found defendant was not in any manner connected with the larceny of the parts, in which event the damage would be measured by their scrap value. In view of these facts, this assignment cannot be sustained.
The third assignment complains that a witness produced by plaintiff to prove the value of the stolen articles and the cost of replacing them was incompetent by rea
The remaining assignment is to the refusal of the trial judge to charge, as requested by defendant, that no recovery could be had unless the jury should find defendant either knew the property was stolen or that he instigated Pruitt to steal it. Assuming they did not so find, it being conceded defendant received the stolen articles he would at least be liable for their scrap value. The point was properly refused.
The assignments of error are overruled, and the judgment is affirmed.
Reference
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- Practice, O. P. — Trial — Improper remarks of counsel — Withdrawal of furor: 1. It is discretionary with the trial court to withdraw a juror and continue a case because of alleged improper remarks of counsel. 2. Whether the court abused its discretion in refusing to witíiT draw a juror is to be determined by the circumstances under which the remarks were made, and by the precautions taken by court and counsel to prevent their having a prejudicial effect. 3. In an action against a junk dealer to recover the value of property purchased by him with alleged knowledge it was stolen, a judgment for defendant will not be reversed because counsel for plaintiff said that there was more thieving in the junk business than any other business, when counsel immediately on objection withdraws the remark, and the court properly warns the jury to pay no attention thereto, and the jury awards merely compensatory damages, where they might have awarded punitive damages. . Trespass — Purchasing stolen goods — Measure of damages — Evi- . dence — Witness. 4. In an action against a junk dealer to recover the value of metal parts stolen fr'om a brewery, when during the trial the words “value,” “fair value,” “market value” and “worth” are used interchangeably to indicate market value, a judgment for plaintiff will not be reversed, where it appears that the'ease was tried on the theory that the true measure of damages was the cost of replacement, unless defendant was not connected with the larceny, in which event the damage was to be measured by the scrap value. Evidence — Experts—Jury. 5. The weight to be given expert testimony as to value is for the jury. 6. A person having special knowledge of the value of machinery, may be permitted to testify to its cost and value, although he may not be technically an expert.