text:
    Benner, Appellant, v. Fire Association of Philadelphia.

      Insurance — Parol contract to renew — Evidence.
    1. An insurance company may by a preliminary parol contract bind itself to issue or renew a policy in the future, but all parol contracts of insurance must be clearly established in every particular, the subject-matter of insurance, the amount and elements of the risk, including its duration in point of time and extent in point of hazard assumed, the rate of premium, and generally all the circumstances peculiar to and distinguishing the contract, so that nothing remains to be done but to fill up and deliver the policy, on the one hand, and pay the premium on the other.
    2. Where the evidence to establish the contract is vague, amounting to no more than a conversation on the street between plaintiff and defendant company’s agent as to renewing another insurance, with no money passing, no memorandum being made and no definite promise on either side, the evidence is lacking in details essential to show a contract to insure in the future.

      Insurance companies — Written and, oral agreements to insure — Charter —Act of May 5, 1871, P. L. 572.

    3. Where no elements of estoppel are present, an insurance company incorporated under the act of May 5, 1871, which provides that all agreements of insurance shall be in writing, is incapacitated from making a binding parol contract to renew insurance in the future.

      Insurance — Act of May 11, 1881, P. L. 20 — Defenses—Oral and written contracts.

    4. The act of May 11, 1881, is limited in every particular to written policies and has nothing to do with oral contracts of insurance.

      Insurance — Renewal—Power of agent.

    5. Where an insurance agent has no authority from his company to enter into an actual contract of insurance so as to bind the company, he has no authority to bind the company by an agreement to renew in the future an existing contract.

      Appeals — Assignments of error — Admission of evidence — Special matter — Practice, C. P.

    6. A party complaining on appeal of the admission of evidence ob-
    jected to in the court below will be limited to the specific objections made to it there. .
    7. Where a party relies upon the want of special notice of special matters of defense offered at the trial, he must place his objection at the trial on that ground; and if he fails to do so he cannot make such objection for the first time in the appellate court.
    Argued May 10, 1910.
    Appeal, No. 376, Jan. T., 1909, by plaintiff, from judgment of C. P. Union Co., Jan. T., 1907, No. 49, on verdict for defendant in case of S. E. Benner v. Fire Association of Philadelphia.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a parol agreement to insure. Before McClure, P. J.
    The facts appear in the opinion of the Supreme Court.
    At the trial the court rejected under objection and exception offers to show that insurance agents were accustomed, to agree to renewals in advance of the expiration of current policies [4, 6].
    The court charged the jury as follows:
    [So the law says a parol executory contract, or a contract to insure in the future, is not binding upon the company. That is, it is not a contract of insurance.] [2]
    [Viewing the case as we do, that there was no contract of insurance made at the time, we think the plaintiff is not entitled to recover, and you will render a verdict for the defendant.] [3]
    Plaintiff presented the following points:
    1. Under the certificate issued by defendant company, to A. S. Hoch, he was empowered to write insurance, issue policies, etc., and had authority to renew policies by parol or oral agreements. Answer: Refused. [7]
    2. If the jury believe that the defendant company, through its agent, A. S. Hoch, agreed to renew the policy of insurance upon plaintiff’s barn and contents in the sum of $1,500, in consideration of plaintiff’s agreement to pay the premiums therefor, whenever said agent demanded it, such an agreement would and did constitute a valid contract binding upon both parties. Answer: Refused. [8]
    3. If the jury find such an agreement to have been made, then the policy was, by such agreement, in effect renewed for a like term, sum, property, risk and premium as the old policy, and the property so insured having been destroyed by fire on November 6, 1905, and within the time covered by said renewal, plaintiff is entitled to recover the value of the property destroyed up to the face of the policy — less the amount of the premium, $30.00 — with interest from the date when the company denied liability, to wit, November 11, 1905. Answer: Refused. [9]
    4. That A. S. Hoch, the agent of the defendant company, had full power to receive proposals for insurance against loss or damage by fire, and to issue and countersign policies and renewal receipts furnished him by the said defendant, to assent to assignments and transfers, to collect and pay the premiums to the defendant, and transact such other business as might be intrusted to his care, by the defendant, and was the general agent of the company for the purposes aforesaid, in New Berlin and vicinity, and his acts, statements and agreements relating to the renewal of this insurance, the notice of loss, or the denial of liability, were the acts, statements and agreement of the defendant. Answer: In answer to the last point we say: Hoch’s statements and agreements relating to a renewal of insurance were the acts of the company, but under its charter provisions not binding upon it. [10]

      Defendant presented these points:
    1. That plaintiff having testified that prior to the expiration of the policy on the dwelling, which expired on August 19, 1905, he entered into an agreement with Albright S. Hoch, the defendant’s agent, to renew a policy of insurance on November 2, 1905, and there being no evidence that any premium was- paid or that any policy was delivered, if the property to be insured should have been destroyed by flood, hurricane or fire before November 2, 1905, when the time arrived at which the contract was to become operative the subject of the insurance not being in existence, thei'e would be nothing to which the policy could attach. During the interim between August and November 2, 1905, the tenure of Mr. Hoch’s agency was uncertain, his authority to make contracts might have been terminated at the will of the defendant. He might have died or his power might have been withdrawn by defendant, and, when the time arrived for him to perform his agreement, he might have been wholly without authority to act. The plaintiff might voluntarily have disposed of the property to be insured by sale or it might have been sold under legal process and the relations of the parties so changed that the plaintiff might not have had an insurable interest in the property on the date when the contract was to become operative. In any one of the above events there would be no obligation to pay a premium, and where there is no obligation to pay a premium, there is no liability to pay a loss. Even if such an agreement existed it was to take effect in the future, and therefore the defendant would in no manner be liable thereunder and your verdict must be for the defendant. Answer: The defendant’s first point is affirmed. [11]
    2. That an agent duly authorized to bind his company by contract for insurance may make contracts-by parol,, which will be binding upon the company before the issuing of the policy, unless there be specific charter requirements that such or all insurance contracts shall be in writing. But in such case the contract and the authority of the agent must be satisfactorily proved. There being no evidence in this case to show any such authority in Albright S. Hoch, to bind the defendant in the manner claimed by the plaintiff, your verdict must be for the defendant. Answer: The second point is affirmed. [12]

      Errors assigned were (4, 5) rulings on evidence, quoting the bill of exceptions; (2, 3, 7-12) above instructions, quoting them.

      William R. Follmer and Andrew A. Leiser, for appellant.
    The parol agreement to renew was binding upon the plaintiff: Squier v. Hanover Fire Ins. Co., 162 N. Y. 552 (57 N. E. Repr. 93); Hay v. Star Fire Ins. Co., 77 N. Y. 235; Giddings v. Phœnix Ins. Co., 90 Mo. 272 (2 S. W. Repr. 139); First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; McCabe v. Ætna Ins. Co., 9 N. Dak. 19 (81 N. W. Repr. 426); Baldwin v. Penna. Fire Ins. Co., 206 Pa. 249; Royal Ins. Co. v. Beatty, 119 Pa. 6; Sanford v. Orient Ins. Co., 174 Mass. 416 (54 N. E. Repr. 883); Kelly v. Commonwealth Ins. Co., 23 N. Y. Super. Ct. 82.
    The offers were to show the usage of the business generally and with respect to the defendant company specially and it was error to reject the evidence: Greenwich Ins. Co. v. Waterman, 6 U. S. App. 549; Putname v. Home Ins. Co., 123 Mass. 324; Commercial Mut. Marine Ins. Co. v. Ins. Co., 60 U. S. 318; McCabe v. Ins. Co., 9 N. Dak. 19 (81 N. W. Repr. 426); Helme v. Phila. Life Ins. Co., 61 Pa. 107; Girard Life Ins. Co. v. Mutual Life Ins. Co., 97 Pa. 15; Matlack v. Bank, 180 Pa. 360.

      Albert L. Moise, with him William II. Hackenberg, Samuel D. Matlack and S. II. Alternan, for appellee.
    ■There was no contract in preesenti, and therefore no contract at all: Taylor v. Ins. Co., 47 Wis. 365 (2 N. W. Repr. 559); Idaho Forwarding Co. v. Ins. Co., 8 Utah, 41 (29 Pac. Repr. 826); Baumgartel v. Ins. Co., 136 N. Y. 547 (32 N. E. Repr. 990); Hartford,Fire Ins. Co. v. Davenport, 37 Mich. 609.
    July 1, 1910:
    The agent’s contract was not binding on the company: Stewart v. Ins. Co., 102 Cal. 218 (36 Pac. Repr. 410); Sargent v. Fire Ins. Co., 86 N. Y. 626.
    An oral agreement such as that declared upon is prohibited by appellee’s charter and'by the general act of assembly of 1856: Hazlett v. Allegheny Ins. Co., 1 Walker, 336.
   Opinion by

Mr. Justice Moschzisker,

The plaintiff owned a piece of real estate with a dwelling house and a barn erected thereon, which improvements were insured with the defendant company under separate policies; the policy on the house expired August 19, 1905, and that on the barn November 2, ■ 1905. The insurance had been placed by one Hoch, an agent of the defendant company. According to the plaintiff’s testimony, some time in August, 1905, Hoch met him on the street and said, “The policy on your house will expire shortly.” A few days after this the plaintiff met Hoch and said, “Renew the policy, and we will leave it the same as it is, but I have not the money to pay you to-day, but I will pay you inside of a week or so;” to which Hoch replied, “That would be all right.” The plaintiff testified further: “And I said ' Don’t forget the barn, and renew the barn as quick as that comes due and send it up, or send it up and I will pay you the same as I did previous to this time with the cash. . . .’ I told him he should renew the policy on the barn and watch it up, and I would attend to it. ... I told him 'If I can’t pay you at once I will pay you like this time;’ and he said, 'That will be all right and I will attend to it, you don’t need to worry.’ ” Plaintiff further stated that subsequently he said to Hoch in reference to the insurance, “Watch the others;” and Hoch replied, “I will attend to them, you don’t need to worry;” and, “I told him again in front of my wife, ‘You watch all the insurance.’ ” The insurance on the barn was not renewed, and on November 6, 1905, it was destroyed by fire. The plaintiff brought an action against the defendant company, and sought to maintain his claim on the theory that the conversation between himself and Hoch constituted a parol contract whereby the company agreed that upon the expiration of the then existing policy it would insure the barn by a renewal thereof. Binding instructions were given for the defendant, and the plaintiff has appealed.

We cannot agree ip all respects with the views of the learned trial judge as expressed in his rulings upon the evidence and in his charge to the jury, but we concur in the conclusion reached.

In Pennsylvania the law permits oral contracts of insurance: Lenox v. Ins. Co., 165 Pa. 575; Ripka v. Insurance Co., 36 Pa. Superior Ct. 517. Although there is a difference of opinion' in the various jurisdictions and among the text-writers as to whether or not an executory contract can be made to insure in the future, yet the clear preponderance of authority seems to be that such contracts are valid: Security Fire Ins. Co. of New York v. Kentucky Marine & Fire Ins. Co., 7 Bush (Ky.), 81; Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Cohen et al. v. Continental Fire Ins. Co., 67 Texas, 325; Commercial Mut. Marine Ins. Co. v. Union Mutual Ins. Co., 60 U. S. 318; Tayloe v. Merchants’ Fire Ins. Co., 50 U. S. 390; Post v. Ætna Ins. Co., 43 Barbour, 351; Ellis v. Albany City Fire Ins. Co., 50 N. Y. 402; Angell v. Hartford Fire Ins. Co., 59 N. Y. 171; Van Loan v. Farmers’ Mutual Fire Ins. Assn., 90 N. Y. 280; Moore v. New York Bowery Fire Ins. Co., 130 N. Y. 537; Stickley v. Mobile Ins. Co., 37 S. C. 56; Baubie v. Ætna Ins. Co., 2 Dill. 156; Taylor v. Germania Ins. Co., 2 Dill. 282; King v. Cox, 63 Ark. 204; Newark Machine Co. v. Kenton Ins. Co., 50 Ohio Stat. 549. The leading cases pro and con are discussed in McCabe Bros. v. Ætna Ins. Co., 9 N. Dak.. 19, and the conclusion is stated, “That an insurance company can by a preliminary parol contract bind itself to issue or to renew a policy in the future seems too well settled to admit of doubt.” The argument against the validity of such contracts as stated by Ostrander on Insurance (2d ed.), sec. 12, and adopted by the court below, is not convincing.

In these days of great commercial activity, one can readily conceive of many instances where a man would not be willing to set aside capital and agree to place it in a prospective enterprise, unless he could be positively assured of indemnity against fire risk, and this can only be accomplished by contracts to insure in the future. We find no Pennsylvania authority which holds' directly against their validity, and in Hamilton v. Lycoming Mut. Ins. Co., 5 Pa. 339, Chief Justice Gibson says: “In commercial towns, where the members of the profession are familiar with the law of insurance, actions on mere agreements to insure, whether against fire or perils of the sea, are not uncommon. They are noticed in 1 Phillips on Insurance, sec. 3, p. 9; but it appears that the terms of the contract must have been settled by the concurrent assent of the parties, and that nothing must have remained to be done but to deliver the policy, else the risk will not have been begun; in other words, that the agreement must have had, at some particular instant, that aggregatio mentium which is indispensable in the constitution of every contract.” The tendency of our cases is to favor the validity of such contracts, but they uniformly hold that all parol contracts .of insurance, even those to take effect in prsesenti, must be clearly established in every particular: Patterson v. The Benjamin Franklin Ins. Co., 81* Pa. 454; Ripka v. Fire Ins. Co., 36 Pa. Superior Ct. 517. “To constitute a verbal contract of insurance the minds of the parties must have met upon all the essentials of the contract. The testimony must make clear the subject-matter of insurance, the amount and elements of the risk, including its duration in point of time and extent in point of hazard assumed, the rate of premium, and generally all the circumstances which are peculiar to the contract and distinguish it from every other so that nothing remains to be done but to fill up the policy and deliver it, on the one hand, and pay the premium on the other:” Keystone Mattress, etc., Co. v. Pittsburg Underwriters, 21 Pa. Superior Ct. 42. This is a wise and salutary rule which bears hard upon no one; for oral contracts of insurance are not usual, and if for any reason one should desire to make such a contract he ought to do so in a proper manner, so that in any future controversy on the subject it can be made plain to the tribunal which has to pass upon it. Otherwise, wherever a careless man becomes in the habit of depending upon the insurance agent to notify him of the expiration of his policy, and the insurance runs out, he will be too apt to assume the right to set up such a contract.

We do not overlook the cases that hold to the rule that where an oral preliminary contract of insurance is shown it will be presumed that the parties contemplated such a form of policy as has been usual between them, or is usual in such cases, and we can conceive of instances where this rule might well be applied, but this is not one of them.

In the present case the testimony to establish the alleged contract is too vague. Although it is repeated in several different forms upon the notes, we have stated it most strongly for the plaintiff. And yet what have we? A conversation between the plaintiff and the agent of the defendant company about renewing another insurance, in which the former said to the latter, “Don’t forget the barn. Renew the barn as quick as that comes due,” and received the reply, “I will attend to it, you don’t need to worry.” How can we from this say with any safety that the defendant company thereby agreed upon an insurance in any fixed amount for any fixed term either in the present or future. The very words used by the agent indicate an intent to attend to something in the future for the plaintiff, rather than a then present assumption of an obligation binding upon his company. The old policy on the barn was in the possession of the plaintiff, so he as well as Hoch had means of information as to the date of its expiration. The whole surroundings negative the idea of a serious contract being made: the conversation consisted of a few words on the street; no money was passed, no memorandum was made, and no definite promise given on either side. After the conversation the plaintiff again instructed Hoch to watch the insurance, which would indicate that he did not consider himself protected by any binding contract at the time of the first conversation. The testimony is lacking in details essential to show clearly a contract to insure in the future, and it is also lacking in proper proof of the authority of the agent to make such a contract.

As evidence of Hoch’s authority, the plaintiff' offered a written commission from the defendant company appointing Hoch agent in the territory in question "with full power, to receive proposals for insurance against loss or damage by fire .... with authority to issue and countersign policies and renewal receipts, furnished by said associations; to assent to assignments and transfers, to collect premiums .... and to transact such other business as may be intrusted to his care.” This commission cannot be construed as conferring upon the agent authority to bind and obligate his company on the unusual contract here sought to be established. True it is that the third specification of error contains an offer to show that insurance agents "are accustomed to agree to renewals in advance of the expiration of the current policies and give credit for premiums, accounting to the company monthly for the premiums whether they are paid or not by the insured;” and that the fifth specification presents a similar offer "for the purpose of showing this is the usage and custom of this particular company.” But the offers were properly refused. While it was admitted by the plaintiff that he had never paid the premium on the insurance claimed, yet there was no defense on that ground, so the question of credits for premiums was out of the case. With this out, the offers were merely to show that the agents were accustomed to agree to renewals in advance of the expiration of current policies; not that they were accustomed to make such oral contracts for future insurance or renewals as contended for by the plaintiff. Therefore the offers were irrelevant and immaterial to the issue. “We have no right to reverse the action of the court below upon a surmise that the defendants might have made their offer broader:” Silliman v. Whitmer, 11 Pa. Superior Ct. 243. Assuming that the plaintiff could have made the offers as stated good, there is not enough in the case to show either that the agent had authority to make the contract contended for by the plaintiff or that in point of fact such a contract was ever actually consummated.

There is another serious point in this case. The defendant company was incorporated under the Act of May 5, 1871, P. L. 572, the sixth section of which provides: “The president and directors shall have full power, on behalf of said corporation, to make insurance .... and to make, execute and perfect such and so many contracts, bargains, agreements, policies and other instruments as shall or may be necessary and as the nature of the case shall or may require; and every such contract, bargain, agreement and policy to be made by the said corporation shall be in writing or in print. . . .” The defendant contends that this charter requirement is in itself a sufficient defense against an oral contract of insurance; while the plaintiff contends that the provision refers only to executed contracts or policies of insurance, and not to preliminary contracts to make or renew policies; and he makes a most convincing argument on this point, citing many respectable authorities.

But no matter what the view may be elsewhere, in Pennsylvania we have an authority which settles the question here. In Hazlett v. Allegheny Ins. Co., 1 Walker, 336, the defendant company was chartered under the Act of April 2, 1856, P. L. 211, the tenth section of which is to all intents and purposes identical with sec. 6 of the act of 1871. The claim was on a verbal contract of insurance. The court below reserved the question “Whether a contract of insurance such as specified in plaintiff’s first point, is binding upon defendant, and entitles plaintiff to recover in this case?” In entering judgment for the defendant non obstante veredicto the court said: “Upon the first question, I think the law under the charter of the defendant is clearly with the defendant;” and in affirming this judgment we said: “Contracts of insurance are expressly required by defendant’s charter to be in writing. . . . There being no sufficient ground of estoppel alleged the case fell back ..... upon the mere binding effect of a verbal contract for insurance, and this the charter answers in the negative.” It will not do to say that the construction of this charter requirement contended for by the plaintiff in the present case was not considered by this court in the Hazlett case, for it appears in the report that “George Shiras, Esq., for plaintiff in error argued that a verbal contract of insurance is binding. . . . The company would still be liable on an agreement,to issue the policy, though the statute requires the formal insurance policies to be in writing. . . . This company could make arrangements, and even parol promises, as to the terms on which a policy shall be issued, so that a court of equity will compel the company to execute the contract specifically, and where the loss has happened, to avoid a circuity of action, the chancellor will enter a decree directly for the amount of an- insurance for which the company ought to have delivered their policy properly attested.” And “M. W. Acheson and W. G. Hawkins, Jr., Esqs., contra, replied, the company could not make a formal policy of insurance; for by its charter it is subject to the insurance act of April 2, 1856 .... as follows. . . . 'And every such contract, bargain, policy and other agreement shall be in writing or print.’ ...” This shows that the point was clearly presented by most able counsel, and although the opinion is brief, we must assume that it was passed upon after full consideration.

In Ripka v. Fire Ins. Co., 36 Pa. Superior Ct. 517, President Judge Rice states the rule: ''An agent duly authorized .... may make contracts by parol .... unless there be specific charter requirements that .... all insurance contracts shall be in writing.” The act of 1856 was a general insurance act which by its terms was made applicable to companies to be incorporated by special acts in the future. It was in force until its repeal by the Act of May 1, 1876, P. L. 53: Moise and Matlack on Insurance, Col. 15,479. The defendant company was incorporated by a special act in 1871. Both of these acts contain the same provision requiring insurance contracts to be in writing; so .that even if this provision had been omitted from the act of 1871, the company would still have been bound by the provision under the act of 1856, and therefore it was in the same position as the defendant in the Hazlett case. Under such circumstances, a construction having already been placed by this court upon the very words contained in the charter of the defendant company, we cannot depart therefrom on the facts in the present case. We do not mean to rule that this charter provision would be a protection against all verbal contracts of insurance. There might be cases where certain elements of estoppel would exist which would afford life to such contracts; but there are no such elements in the present case any more than in the Hazlett case where the plaintiff claimed that the understanding and agreement was that the insurance ''was to take place immediately,” and he failed to insure elsewhere and met with a consequent loss.

But the plaintiff contends that the effect of the act of 1871 cannot be considered for two reasons: first, under the rule of the local court a specification in writing of all special matters of defense must be furnished before trial, and this act was not referred to in defendant’s specification; next, the Act of May 11, 1881, P. L. 20, forbids consideration of the defense. As to the first contention, an examination of the record shows that no such objection was made in the court below. “It is well settled that the party complaining on appeal of the admission of the evidence objected to in the court below, will be limited to the specific objections made to it there: ” Danley v. Danley, 179 Pa. 170; Messmore v. Morrison, 172 Pa. 300. When a party relies upon the want of special notice he must place his objection on that ground: Hawk v. Geddis, 16 S. & R. 23; Rearich v. Swinehart, 11 Pa. 233; Miller v. Stem, 12 Pa. 383; Hobson v. Croft, 9 Pa. 363. Concerning the next point it is sufficient to say that the act of 1881 is limited in every particular to written policies and has nothing to do with oral contracts of insurance: Lenox v. Ins. Co., 165 Pa. 575.

We have considered all the assignments of error, and although we do not entirely agree with the views of the learned trial judge as expressed and brought upon the record in the second, tenth and eleventh specifications, we find no reversible error.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Brenisholtz v. Pennsylvania Railroad Company, Appellant.

      Negligence — Evidence—Carlisle Tables — Instructions to jury.

    1. In an action to recover damages for personal injuries, it is not error to admit the Carlisle Tables as set out in a work on “Inheritance Tax Calculations,” where there has been an exact correspondence of the tables offered and those set out in works previously approved by the Supreme Court.
    2. In such a case, where there is evidence tending to show that the plaintiff was in good health prior to the accident, it is proper to instruct the jury that the Carlisle Tables are evidence, not to prove the precise term of plaintiff’s life, but t® be considered in connection with other testimony, for the purpose of determining her probable expectancy of life.

      Trial — Court—Remarks of counsel — Withdrawing furor.

    3. In an action to recover damages for personal injuries where counsel, in summing up, states the amount of plaintiff’s claim, but immediately withdraws the remark and asks that the jury be instructed to disregard it, which is done, and where the verdict is not unreasonable, no inference of damage to defendant can fairly be drawn, and the appellate court will not reverse a judgment for plaintiff because the trial judge refused to withdraw a juror.

      Negligence — Railroads—Train hacked off siding — Sleeping woman— Proximate cause — Contributory negligence.

    4. In an action against a railroad company to recover damages for personal injuries, where it appears that the negligent operation of defendant’s train caused it to be driven against plaintiff’s house, wrecking the rear portion, and leaving an opening into which the plaintiff almost immediately fell, in the darkness, while seeking to reach her children by the customary way to the room where they slept, the negligence of defendant is established as the proximate cause of plaintiff’s injuries, and the question of contributory negligence is for the jury.
    Argued May 10, 1910.
    Appeal, No. 54, Jan. T., 1910, by defendant, from judgment of C. P. Juniata Co., Feb. T., 1909, No. 67, on verdict for plaintiffs in case of Annie M. Brenisholtz and John W. Brenisholtz, her husband, v. The Pennsylvania Railroad Company.
    Before Mestrezat, Potter, Elkin, Stewart and Moscrizisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Shull, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    At the trial plaintiffs made the following offer:
    Mr. Banks: We offer in evidence the Carlisle Tables as found on page 144 of Wolfe’s Inheritance Tax Calculations for the purpose of showing that a person forty years of age has an expectancy of life of 27.61 years. This in connection with the other evidence in the case as to the health and manner of living of Mrs. Brenisholtz.
    Mr. Fennell: Objected to, first, the tables have not been properly proven. Second, it has not been shown that this lady comes under any of the classes designated in those tables. Third, it is irrelevant, incompetent and immaterial.
    The Court: For the purposes offered and tending in some respects to shed some light to the jury in measuring the prospect of life, we admit the evidence and seal a bill for the defendant. [1]
    During the argument of Mr. Neely for plaintiffs to the jury, the following took place:
    Mr. Pennell: I ask the reporter to take the remark of Mr. Neely down, the remark being as follows: “I hope you will be able to arrive at a fair conclusion. He asks $£¡,000 in this ease.” . I now ask the court to withdraw a juror and continue the case at the expense of the plaintiffs.
    Mr. Neely: I withdraw the remark and ask the court to charge the jury to disregard it.
    The Court: For the present we will overrule the motion and seal a hill for the defendant. [2]
    Plaintiff presented this point:
    2. The Carlisle Tables are evidence in the case to show that a person forty years of age, under average conditions of health, habits, occupation and manner of living, may expect to live for a period of 27.61 years. While this does not, of course, prove that Annie M. Brenisholtz will live so long or that she will not live longer, yet it is evidence which the jury may consider in connection with the other evidence in the case as to the plaintiff, Annie M. Brenisholtz’s health, habits, occupation and manner of living prior to the accident for the purpose of determining her probable expectancy of life. Answer: We affirm this point with the qualification that we say that these tables are admitted as some evidence in the case tending to show the prospective life of the plaintiff and is to be considered not as showing that she will live such period, but taken with the other testimony as to her habits, conditions of living, her general health, may be some evidence to aid in determining the prospective period of life. [3]

      Defendant presented these points:
    3. That the injury to Mrs. Brenisholtz was not such a natural and probable consequence of the alleged negligence of the defendant as might and ought to have been foreseen by the defendant and the defendant is therefore not liable therefor and the verdict should be for the defendant. Answer: Refused. [4]
    4. That the proximate cause of the injury to Mrs. Brenisholtz was not the destruction of the back building of her dwelling house by the cars of the defendant, but was her hasty and careless stepping out of the door leading into said back building without a light and without attempting to learn of the condition of the said back building, and the verdict should be for the defendant. Answer: Refused. [5]
    5. All the facts affecting the question of the contributory negligence of Mrs. Annie M. Brenisholtz were furnished by the plaintiffs’ testimony. They are free from doubt and uncontradicted, hence their legal effect is to be determined by the court. The court is therefore respectfully requested to charge the jury that the proofs of the plaintiffs’ case show that Mrs. Brenisholtz was guilty of contributory negligence and the verdict should be for the defendant. Answer: Refused. [6]
    Verdict for Annie M. Brenisholtz for $6,000, and for John W. Brenisholtz $2,753, on which verdicts judgments were entered for the wife for $5,000, and for the husband for $1,753, with interest, all above such amounts having been remitted by plaintiffs. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3-6) above instructions, quoting them.

      F. M. M. Pennell, for appellant.
    A table of the expectancy of life is incompetent in the absence of proof of its correctness: McKenna v. Gas Co., 198 Pa. 31; Galveston, etc., Ry. Co. v. Arispe, 81 Tex. 517 (17 S. W. Repr. 47).

      July 1, 1910:
    In an accident case, where the Carlisle Tables are admitted to show the expectancy of life of the plaintiff, the court must carefully guard the effect of the evidence by directing the attention of the jury to the circumstances affecting the duration of the life in question: Seifred v. Penna. R. R. Co., 206 Pa. 399.
    The remark of plaintiff’s counsel in his summing up to the jury was certainly improper, and the case should have been continued immediately upon motion at plaintiff’s expense: Quinn v. Rapid Transit Co., 224 Pa. 162; Reese v. Hershey, 163 Pa. 253; Hollinger v. York Rys. Co., 225 Pa. 419; Wagner v. Hazle Twp., 215 Pa. 219; Erie & W. V. R. R. Co. v. Smith, 125 Pa. 259.
    The plaintiff was guilty of contributory negligence: Del., L. & W. R. R. Co. v. Cadow, 120 Pa. 559; Graham v. Penna. Co., 139 Pa. 149; Lehigh Yalley R. R. Co. v. Greiner, 113 Pa. 600; Pass. Ry. Co. v. Trich, 117 Pa. 390.

      J. Howard Neely and Andrew Banks, for appellees.
    Under all the authorities, we believe the proper ground was laid for the admission of the Carlisle Tables as evidence in this case: Steinbrunner v. Pittsburg, etc., Railway Co., 146 Pa. 504; Kerrigan v. Penna. R. R. Co., 194 Pa. 98; Seifred v. Penna. R. R. Co., 206 Pa. 399; McKenna v. Citizens’ Natural Gas Co., 198 Pa. 31; Iseminger v. York Haven Water & Power Co., 209 Pa. 615.
    There was no ground for withdrawing a juror: Shaffer v. Coleman, 35 Pa. Superior Ct. 386; Com. v. Striepeke, 32 Pa. Superior Ct. 82; Moore v. Neubert, 21 Pa. Superior Ct. 144; Behrens v. Mountz, 37 Pa. Superior Ct. 326; Com. v. Sarves, 17 Pa. Superior Ct. 407; Dougherty v. Rys. Co., 213 Pa. 346.
    There was no contributory negligence: Crane v. Penna. R. R. Co., 218 Pa. 560.
   Opinion by

Mr. Justice Potter,

This was an action of trespass brought by Annie M. Brenisholtz and John W. Brenisholtz her husband, to recover damages for injuries sustained by the wife through the alleged negligence of the employees of the defendant company. There was no denial of the negligence, and the facts are not in dispute. A freight train was backed off the end of a siding across the street, into the rear of plaintiffs’ dwelling, and demolished part of the building where their children were sleeping. Frightened by the crash Mrs. Brenisholtz sprang up and endeavored in the darkness to reach her children, and, unaware that the end of the house had been torn away, she fell into an opening and was injured.

The trial in the court below resulted in a verdict for the wife for $6,000, and for the husband for $2,753. At the suggestion of the court, remittiturs were filed in the sum of $1,000, on behalf of each of the plaintiffs, reducing the amounts for which judgment was entered (interest to date of judgment being added) to $5,000 and $1,753. Motions for a new trial, and for judgment for defendant non obstante verdicto, were refused, and defendant has appealed.

The first and third assignments of error question the admissibility in evidence of the Carlisle Tables, as they are set forth in a volume entitled “Inheritance Tax Calculations,” by S. Herbert Wolfe; and they question also the adequacy of the instructions of the trial judge to the jury, as to the weight to be given to the tables, as evidence. The volume from which the tables were offered in evidence, seems to be a treatise by a consulting actuary upon the underlying principles used in ascertaining the present value of dower, and curtesy rights, life estates, etc., as estimated upon the Northampton, Carlisle, American and Actuaries Experience Tables of Mortality.

In 20 Am. & Eng. Ency. of Law (2d ed.), 886, it is said: “In general, it seems that life tables may be shown by any standard work containing them, and in some cases experts have been allowed to testify as to their authority and value. But it would seem that, as courts take judicial notice of the standard tables, no preliminary proof is necessary. In a note to the above it is said (citing decisions), that the Carlisle Tables may be proved by the Encyclopaedia Britannica or by a law book of general authority and acceptance. In Kerrigan v. Penna. R. R. Co., 194 Pa. 98, the book which was offered in evidence to prove the Carlisle Tables was Scribner on Dower. In the case of Steinbrunner v. Ry. Co., 146 Pa. 504, Chief Justice Paxson quotes (p. 515) from the Encyclopaedia Britannica as to the history of the Carlisle Tables. A comparison of the Carlisle Tables as printed in Wolfe on Inheritance Tax Calculations (the volume used in the present case) shows an exact correspondence of the figures indicating expectancy of life with those given in both the Encyclopaedia Britannica and Scribner on Dower. In all three books, the expectancy of a person forty years old, the age of the plaintiff in the present case, is stated to be 27.61 years. We see no merit in the first and third assignments of error.

In his second point for charge counsel for plaintiff asked to have the jury instructed to take the Carlisle Tables as evidence, not to prove the precise term of plaintiff’s life, but as evidence to be considered in connection with other testimony in the case, concerning the health, habits, occupation and manner of living of the plaintiff prior to the accident, for the purpose of determining her probable expectancy of life. In affirming this point, the court cautioned the jury that the tables were to be considered not as showing that plaintiff would live for such a period, but that, taken with other testimony, they might be some evidence to aid in determining her prospective period of life. There was evidence tending to show that prior to the accident Mrs. Brenisholtz was in good health. We think the instructions of the trial judge as to the weight to be given to the tables, were adequate and that they were substantially in accord with the principles laid down in such of our cases as Kerrigan v. Penna. R. R. Co., 194 Pa. 98, and in Iseminger v. Water, etc., Co., 209 Pa. 615.

In the second specification of error, it is alleged that the trial judge erred in refusing to withdraw a juror and continue the case when counsel for plaintiff, in summing up, said to the jury that “he (the husband) asks $5,000, in this case,” the remark being immediately withdrawn by counsel, and the court at his request having instructed the jury to disregard it. The statement did not apply to the amount of the wife’s claim, but only to that of the husband. The remark was of course improper, and counsel at once realized it, and promptly acknowledged his error. It is contended, however, in behalf of appellant, that the action of the trial judge in refusing to withdraw a juror and continue the case under these circumstances, was reversible error. But in none of the cases cited to sustain this contention, does it appear that the objectionable remark was immediately withdrawn by counsel, and that the jury were instructed by the court to disregard it. Thus in Wagner v. Hazle Twp., 215 Pa. 219, the court in denying a motion to withdraw a juror, went to the other extreme and said: “Counsel for plaintiff stated nothing improper.” This was setting the stamp of approval upon the wrong action of counsel; and the case was reversed. And in Quinn v. Transit Co., 224 Pa. 162, where as in the present case, counsel stated to the jury the amount of damages claimed in plaintiff’s statement, it does not appear that the remark was withdrawn, or that the jury were instructed to disregard it. In the case of Reese v. Hershey, 163 Pa. 253, and Hollinger v. York Rys. Co., 225 Pa. 419, which were reversals, the trial judges themselves read to the jury the amount of plaintiff’s claim for damages set forth in the statement. On the other hand, in Dougherty v. Pittsburg Rys. Co., 213 Pa. 346, the improper statement was promptly corrected by counsel when objection was made to it, and the court expressly called the attention of the jury to the fact of the correction. We there held that “The error of counsel was thus corrected without having prejudiced the defense.” In the present case there is nothing to indicate that the defendant, as a final result, suffered any harm by reason of the remark of which complaint is made. It did not relate to the claim of the wife, and the claim of the husband, as stated by counsel, was for $5,000. The jury awarded him the sum of $2,753, and this amount was cut down by the court to $1,753. Under these conditions we do not feel that any inference of injury to the defendant can fairly be drawn, by reason of the circumstance.

As to the question of contributory negligence, we are clear that under all the evidence in this case, that was properly submitted to the jury. Nor do we see any ground upon which it can reasonably be contended that the negligence of defendant’s servants was not the proximate cause of the injuries received by Mrs. Brenisholtz. The negligent operation of the train caused it to be driven against the house, wrecking the rear portion of the building, and tearing it away from the main part of the house, leaving an opening into which the plaintiff almost immediately fell, in the darkness, while seeking to reach her children by the customary way to the room in which they slept. Her action was just what was to have been expected under the circumstances, and the chain of events between the negligent act of defendant and the final result to plaintiff was very short, and the occurrences formed a natural whole.

The assignments of error are overruled, and the judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Allen v. Tuscarora Valley Railroad Company, Appellant.

      Negligence — Railroads—Brakeman—Coupling cars — Act of congress of March 2, 1898 — Practice, C. P. — Amendment to statement — New cause of action — Assumption of risk — Statute of limitations.

    1. In an action brought by a brakeman against a railroad for injuries received while coupling cars, where the original statement was at common law and alleged that the injuries resulted from the negligence of the defendant company in using a coupler more dangerous than the usual coupling employed on railroads, an amendment to the statement four years later alleging that the railroad was engaged in interstate commerce and its cars were equipped with couplers in violation of the act of congress of March 2, 1893, c. 196, see. 2, 27 Statutes at Large, 531, making it unlawful for a common carrier to employ cars in interstate traffic not equipped with couplers coupling automatically by impact and providing that any employee injured by a car or train not so equipped shall not be deemed to have assumed the risk thereby occasioned introduces a new and different cause of action and is subject to the statute of limitations.

      Practice, C. P. — Pleading—New cause of action — Departure—Departure from, law to law — Common law — Statutory law.

      2. A departure in pleading may be either in the substance of the action or defense, or the law on which it is founded.
    3. A change from the assertion of a cause of action arising under the common or general law to a reliance upon a statute giving a particular or exceptional right constitutes a departure in law.
    Argued May 11, 1910.
    Appeal, No. 55, Jan. T., 1910, by defendant, from judgment of C. P. Juniata Co., Sept. T., 1904, No. 78, on verdict for plaintiff in case of R. B. Allen v. Tuscarora Valley Railroad Company.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Shull, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was the allowance of amendment to statement of claim.

      July 1, 1910:

      F, M. M. Pennell, for appellant.
    The rule to be observed in permitting amendments to declarations, or the fihng of new counts, is that the cause of action must remain substantially the same: Steffy v. Carpenter, 37 Pa. 41; Royse v. May, 93 Pa. 454; Trego v. Lewis, 58 Pa. 463; Smith v. Smith, 45 Pa. 403; Dunbar Furnace Co. v. Fairchild, 121 Pa. 563; Tyrrill v. Lamb, 96 Pa. 464; Kaul v. Lawrence, 73 Pa. 410; Kille v. Ege, 82 Pa. 102; Leeds v. Lockwood, 84 Pa. 70.

      J. H. Neely and James M. Barnett & Son, for appellee.
    The amendment of the plaintiff’s statement was permissible: Stoner v. Erisman, 206 Pa. 600; Rodrigue v. Curcier, 15 S. & R. 81; Erie City Iron Works v. Barber, 118 Pa. 6; Schmelzer v. Traction Co., 218 Pa. 32; Herbstritt v. Lacka. Lumber Co., 212 Pa. 495; Knapp v. Hartung, 73 Pa. 290; Trego v. Lewis, 58 Pa. 463; Drake v. R. R. Co., 5 Pa. C. C. Rep. 21; Erie City v. Schwingle, 22 Pa. 384.
   Opinion by

Mr. Justice Mestrezat,

This was an action of trespass at common law, brought July 1, 1904, by the plaintiff, a brakeman in the employ of the defendant company, to recover damages for injuries received in its service while he was in the act of coupling cars. The statement was filed with the praecipe, and averred, inter alia, as follows: “It then and there was the duty of defendant corporation to adopt and use couplings for its cars of ordinary character' and' reasonable safety, according to the usages, habits and ordinary risks of the business, but the defendant corporation, not regarding its duty in the premises, at or about February 29, 1904, at Juniata county aforesaid, carelessly and negligently adopted and used the pin and fink coupler, a kind of coupler not then in ordinary use but more dangerous than the usual and ordinary coupling employed by railroads, by reason whereof plaintiff, while engaged in coupling cars, so as aforesaid supplied and fitted with the pin and link coupler due to the negligence of defendant corporation, in the lawful performance of his work and exercising due and proper care, on or about February 29, 1904, aforesaid at the county of Juniata, was caught by the left hand between the two protruding irons, called bull noses, parts of the couplings, and thereby his left hand was badly cut, bruised, lacreated and torn,” etc.

In December, 1908, a rule was granted on the defendant to show cause why the statement should not be amended, and on January 21, 1909, the rule was made absolute and the statement was amended so as to read, inter alia, as follows: “That said defendant corporation at the time of committing the grievances hereinafter mentioned was engaged in interstate commerce by railroad and a common carrier and did haul on its line cars used in moving interstate traffic not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars, none of its cars being so equipped with couplers as aforesaid, in violation of the acts of congress of March 2, 1893, c. 196, sec. 2, 27 Statutes at Large, 531, and its supplements; that the train aforesaid was not composed of four wheel cars or eight wheel standard logging cars where the height of such cars from top of same to center of coupling does not exceed twenty-five inches used exclusively for the transportation of logs.”

The defendant objected to the allowance of the amendment on the ground that it introduced a new and different cause of action which was barred by the statute of limitations. The first assignment alleges error in making the rule absolute and permitting the plaintiff to amend the statement of claim. As we are of opinion that this assignment must be sustained, the other assignments become immaterial and need not be considered or determined.

The amendment to the statement of claim, allowed by the court, brought the case within the act of congress of March 2, 1893, and alleges that the cars were equipped with couplers in violation of the act. This statute was enacted, as its title declares, to promote the safety of employees and travelers upon railroads engaged in interstate commerce by compelling common carriers to equip their cars with automatic couplers, etc., and makes it unlawful for a common carrier to haul or permit to be hauled any car used in moving interstate traffic not equipped with couplers coupling automatically by impact. Section 8 of the act provides: “That any employee of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provisions of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge.”

The original statement, as observed, was at common law and alleges that the plaintiff’s injuries resulted from the defendant company having carelessly and negligently adopted and used the pin and link coupler, more dangerous than the usual and ordinary coupling employed by railroads. Prior to the act of congress, employees of common carriers assumed the risks and dangers naturally and ordinarily incident to their employment which included the risks and hazards arising from the performance of their duty in coupling cars. If the employee was injured in the discharge of that duty, and it was a risk which he assumed, the carrier was not responsible. But the act changes the liability of the carrier when engaged in interstate commerce, and what was lawful at common law before the passage of the act is made unlawful by the act. The statute abrogates the common law pro tanto and imposes a liability on the carrier different from that imposed by the common law. The latter gives the employee a right of action for an injury resulting from a negligent act exposing him to a danger which he 'did not assume in entering the carrier’s service; but the statute deprives the carrier of the protection and defense of the risk assumed by the employee, which it had at common law. The act of the carrier in failing to equip its cars with automatic couplers is declared to be unlawful, and is forbidden under the penalty, imposed by sec. 8, that the employee if injured shall not be deemed to have assumed the risk of his employment. The act of congress is the basis of the plaintiff’s claim, as laid in the amended statement; while, in the original statement, the basis of the claim is the failure of the carrier to perform its common-law duty to him as its employee! The amendment is not a restatement or the statement in a different form, of the same cause of action, but the averment of a statutory cause of action in which the liability is different and greater than in an action at common law. It deprives the defendant of a valuable right, viz., the defense of the assumption of risk by the plaintiff, which is not ..permissible: Kaul v. Lawrence, 73 Pa. 410. We think it clear that the amendment to the statement of claim introduced a new and different cause of action, which was barred by the statute of limitations, and, therefore, under the well-settled rule in this state, it should not have been allowed.

In support of the contention that the amendment did not change the cause of action, the learned counsel for the plaintiff claims that the language of the original statement was not changed in any way by the amendment which, it is alleged, consisted simply of an addition to the original statement and directed attention to. the act of congress and its supplement as being applicable to the facts of the case. But, it will be observed, in the amendment there was a departure not only from the facts as laid in the original statement, but also from the law as applicable to the facts in the original statement. In other words, there was a departure, not only from fact to fact, but from law to law. A departure in pleading may be either in the substance of the action or defense, or the law on which it is founded: 2 Saunders on Pleading and Evidence *807. The original statement, it is true, averred the injuries of the plaintiff and the alleged negligent act of the defendant by which they were caused, but there was no intimation in the statement that the carrier was engaged in interstate commerce or that the defendant’s cars were equipped with couplers in violation of the act of congress. Proof of the existence of these two additional facts was required to sustain the action as amended, and this is one of the tests in determining whether the amendment introduces a different cause of actioh: Wabash R. R. Co. v. Bhymer, 214 Ill. 579. It is apparent that without this amendment the act of congress could have had no place in the case and could not have been invoked to deprive the company of its defense that the plaintiff assumed the risks or dangers of his employment. If, however, all the facts necessary to bring the case within the act of congress had been included in the original statement, it would have been insufficient as a statement under the act without a reference to the statute: Bolton v. Georgia Pacific Ry. Co., 83 Ga. 659. It is also true that if, as claimed by the plaintiff, all the facts necessary to sustain a recovery on the amended statement were set forth in the original statement, the amendment would still be a change or departure from the original statement, not from fact to fact, but from law to law, from an action founded on the common law to one founded on a statute abrogating the common law, which is equally effective to prevent an •allowance of the amendment. In such case, the plaintiff bases his right of recovery upon other and different law, instead of other and different facts, and it constitutes a departure from the original cause of action: Union Pacific Ry. Co. v. Wyler, 158 U. S. 285; Boston & Maine R. R. Co. v. Hurd, 108 Fed. Repr. 116.

Our conclusion is supported by numerous decisions in this and other jurisdictions in which the same doctrine has been announced and applied. Dunbar Furnace Co. v. Fairchild, 121 Pa. 563, was a common-law action of trespass to recover damages for cutting and carrying away timber standing on the plaintiff’s land. After the statute of limitations had run, the court allowed the plaintiff to amend his statement so as to permit him to recover treble damages under the act of March 29, 1824, for cutting and converting timber trees. This court reversed the common pleas and held that the amendment introduced a new cause of action and should not have been allowed. In the opinion it is said (p. 571): “It has been many times decided that in order to recover under that act (of 1824), it is necessary to declaré specially upon its terms, and that a common-law action of trespass will not suffice. . . . The difficulty with the present case is, that there is not only no conclusion contrary to the form of the statute, etc., but there is no allegation of any other kind that the action is brought under the statute.” The case was again in this court, Fairchild v. Dunbar Furnace Co., 128 Pa. 485, and again it was held that the amendment could not be allowed. In delivering the opinion, Mr. Justice Clark said (p. 498): “This action of trespass, being brought at the common law, was brought to redress the injury done, by an award of compensation; but the action under the statute is not for a redress of the injury; it is to recover a penalty prescribed by the statute, which, as a police regulation, is intended for the protection of real property from waste by those who either negligently or willfully intrude upon the lands of others. The cause of action accruing under this statute, although arising on the same matter, is different from that accruing at common law, and whilst, perhaps, they may be joined in one action, there can be but one recovery. An amendment to a declaration will not be allowed if a new cause of action is thereby introduced.”

In Bolton v. Ry. Co., 83 Ga. 659, an action by an employee against the defendant company, it was said, in refusing an amendment to the statement (p. 660): “If, however, he commences his action and relies upon his common-law right, we do not think he can amend his common-law declaration by setting out the statute and relying upon that for his right to sue and for his recovery. In this case the original declaration was founded upon the common-law right. Nothing was even intimated therein to the effect that he relied upon the statute. According to the decision in Exposition Cotton Mills v. Western & Atlantic R. R. Co., 83 Ga. 441, and cases cited therein, made at this term, this amendment would have added a new and distinct cause of action.” This case also meets the argument of the plaintiff’s counsel in the present case, that the language of the original statement was not changed by the amendment. The court says (p. 661): “But it is argued by counsel for plaintiff in error that all of the facts required by the Alabama statute to be pleaded, were already pleaded in the declaration, and that simply to mention the statute in the amendment and recite the same facts therein would not be a new cause of action. While it may be true that all the facts required by the Alabama statute had been set out in the declaration, still those facts alleged in the common-law declaration were mere surplusage and had no legal vitality, and would have been so regarded by the court trying the case. It required the pleading of the statute to give them any vitality at all. As we have seen, that statute is not mentioned or intimated in the original declaration, and hence to have allowed the amendment offered would have been allowing the introduction of a new cause of action.”

Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, was an .action by an employee against a railroad company based upon the common law of master and servant, and was brought to recover damages for an injury which had happened to the plaintiff in Kansas while on duty there. It was held that an amended petition which changes the nature of the claim and bases it upon a statute of Kansas giving the employee in such a case a right of action against the company in derogation of the common law is a departuro in pleading, and sets up a new cause of action. The trial court allowed the amendment, and in reversing the judgment Mr. Justice White, in an exhaustive opinion, discusses the right to amend an original statement in such cases. He says, inter alia (p. 295): “ A suit based upon a cause of action alleged to result from the general law of master and servant was not a suit to enforce an exceptional right given by the law of Kansas. If the charge of incompetency in the first petition was not per se a charge of negligence on the part of the fellow-servant, then the averment of negligence apart from incompetency was a departure from fact to fact, and, therefore, a new cause of action. Be this as it may, as the first petition proceeded under the general law of master and servant, and the second petition asserted a right to recover in derogation of that law, in consequence of the Kansas statute, it was a departure from law to law. ... It is argued, however, that, as all the facts necessary to recovery were averred in the original petition, the subsequent amendment set out no new cause of action in alleging the Kansas statute. If the argument were sound, it would only tend to support the proposition that there was no departure or new cause of action from fact to fact, and would not in the least meet the difficulty caused by the departure from law to law. Even though it be conceded that all the facts necessary to give a right to recovery were contained in the original petition, as this predicated the assertion of that right on the general law of master and servant, and not upon the exceptional rule established by the Kansas statute, it was a departure from law to law. The most common, if not the invariable, test of departure in law, as settled by the authorities referred to, is a change from the assertion of a cause of action under the common or general law to a reliance upon a statute giving a particular or exceptional right.”

We are all of opinion that the amendment allowed by the court below introduced a new cause of action, barred by the statute of limitations. The first assignment of error must, therefore, be sustained.

The judgment is reversed with a venire facias de novo.


author: Mr. Justice Moschzisker,

text:
    Rea v. Pittsburg & Connellsville Railroad Company, Appellant.

      Eminent domain — Railroads—Compensation for delay — Excessive verdict — Act of May 20,1891, P. L. 101.

    1. In a proceeding brought to recover compensation for land appropriated by a railroad company the action of the trial judge in submitting to the jury under proper instructions the right of the plaintiff to compensation for delay will not be reversed on appeal where it appears that the railroad company took actual possession of the land in 1903 and enjoyed it for that time on, that at the trial the highest value claimed by the plaintiff was $12.00 a square foot and the jury was not asked for a verdict of more than $9.00 a square foot; that the defendant in its plea declared the land to be of a value of only $1.00 per square foot and gave testimony of a value of less than $3.00 a square foot; that the jury rendered a verdict of $7.00 per square foot and that all of the seven years’ delay, excepting two months, occurred subsequent to appeals by both parties from the award of the viewers.
    2. The power conferred upon the Supreme Court by the act of May 20, 1891, is never exercised on the plea of the excessiveness of the verdict except in a most extreme case.

      Evidence — Eminent domain — Real estate — Value—Price paid — Cross-examination — Discretion of the court — Sale of adjacent property — Value of improvements.

    3. While a consideration of particular sales in the neighborhood as fixing market value will not be allowed in condemnation proceedings, questions as to such sales are proper in the cross-examination of a witness to test, his accuracy and the extent of his knowledge.
    4. The rule that evidence in chief of particular sales is incompetent, does not apply to the admission of testimony concerning a single sale of the very property in issue, provided that the sale is not too remote from the date of the appropriation.
    5. Where one of the claimants for damages for the taking of property testifies that the land was worth a certain price per square foot, it is proper cross-examination to ask him about the price paid for the same property three years before, for the purpose of testing his competency and credibility; and the refusal to admit such a question constitutes reversible error on appeal where it appears from the record that the trial judge did not reject the testimony in the exercise of a proper discretion based on the peculiar facts of the case but rather because he considered it not proper cross-examination.
    6. Where, in a condemnation proceeding the price paid in a sale of adjacent property figures largely with the witnesses as a standard of value of real estate in its vicinity, and plaintiff’s witnesses fix the value of the improvements on the property sold at a very low figure, which proportionately increases the value of the lot, it is error to reject defendant’s offer to prove the fair value of the improvements at the time of the sale.
    7. Although the market value of land is not a question of science and skill upon which only an expert can give an opinion, yet in each case the trial judge should see to it that every witness called to prove value has a proper foundation of knowledge to make his opinion of some real worth, before admitting it as evidence.
    8. In large cities “neighborhood” is a relative term, and the field which a witness may take into consideration in forming an opinion of the selling price of land in the vicinity of a particular property, should not only be reasonably adjacent thereto, but it should be of the same general character as the immediate locality in which such property is situated; otherwise the opinion is of little value.
    Argued May 11, 1910.
    Appeal, No. 10, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 453, on verdict for plaintiffs in case of Henry B. Rea et al., Executors of Henry Rea, Jr., deceased, v. Pittsburg & Connellsville Railroad Company.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Appeal from the award of viewers. Before McFarLANE, J.
    The facts appear in the opinion of the Supreme Court.
    When A. U. Bean, a witness for plaintiffs, was on the stand, objection was made as follows:
    Counsel for defendant object to the competency of this witness for two reasons. He has not shown that he knows of a sale in the neighborhood of this property east of the Panhandle railroad, except two cases. The sales that he mentions, he shows no personal information of, and they all he west of the Panhandle railroad, clear down to Cherry alley, on Fourth, Third, Second and First avenues. This is property of a different class than this property beyond the Panhandle railroad, accessible as the Rea property is only through little, narrow Try street. The witness has testified that he has taken his valuations from the deeds recorded in the recorder’s office, and is without personal knowledge as to the particulars of any one of the transactions mentioned.
    The Court: Objection overruled and bill sealed for defendant. [4]
    “Q. What is your judgment as to the fair market value of this property in March, 1903? A. Taking it as a whole, about $845,000. That includes .ground and buildings. In other words, it is $792,000 for the ground and $53,000 for the buildings. Q. That is how much a square foot for the ground? A. That is $9.00 a square foot for the ground.” ■
    Counsel for defendant offer on cross-examination to show by the witness the plaintiff, for the purpose of testing the credibility of his testimony and the competency of his knowledge as to the value of this property in March, 1903, the fact that his father purchased the property appropriated by the railroad company, in question in this case, in the month of June, 1900, from the Consolidated Gas Company; that the said company had it upon the market for a number of years for sale, and was able to hold the property until it realized the fair market value of the same, and the price at the date of such purchase for which the Consolidated Gas Company sold the property to the witness’s father. And also to show that there was no such increase in the market value of the property between June, 1900, and March, 1903, as would be indicated by the price paid for the property in June, 1900, and the estimate now given by the witness of its market value in March, 1903.
    Objected to as not cross-examination, immaterial, irrelevant and incompetent.

      Objection sustained and bill sealed for defendant. [12]
    I offer to prove by the witness on the stand that his father, Henry Rea, Jr., purchased the piece of property in question in this suit in connection with another piece lying between Greenough street and Second avenue in June, 1900; that the witness on the stand has knowledge of the price which his father paid for the property; that the property previous to its purchase by Henry Rea, Jr., was owned by the Consolidated Gas Company and had been held by that company for a number of years in the market for sale; that the Consolidated Gas Company had during these years in which it held the property for sale been attempting to sell it and was able to hold it until it could secure a satisfactory price, and that at the time named the Consolidated Gas Company sold it to Mr. Rea, and the price at which the sale was made, the amount of money paid for said property; to be accompanied by evidence that there was no rise in the market value of the property between the date of said purchase and the date of the appropriation by the railroad company, as would be indicated between the price paid for the property in June, 1900, and the amount claimed therefor by the present plaintiff; this for the purpose of giving to the jury information tending to show the market value of this property at the time of the appropriation in March, 1903.
    Objected to as incompetent and irrelevant.
    Objection sustained. [13]
    Defendant presented this point:
    It appearing from the evidence and the record in the cause, that at the hearing before the viewers appointed to assess the damages to be paid by the railroad company for the property in question in this cause, which hearing was held April 22, 1903, Henry B. Rea, one of the present plaintiffs, was called on behalf of the claimant and examined by his counsel and testified that in his judgment the market value of the property was $15.00 a square foot, or a total valuation of $1,320,000; and that the viewers awarded to the claimant the sum of $416,000, as representing full compensation to the claimant for the amount of damages sustained; and further, it appearing from the evidence and the record in the cause, that at the previous trial of the case on appeal from the award of viewers, the said Henry B. Rea, one of the plaintiffs, was called in his own behalf and on behalf of the other plaintiffs, and upon examination by his counsel testified that the market value of the property in question was the sum of $12.00 per square foot, or a total valuation of $1,056,000, and that the verdict of the jury at the said trial was $616,000 principal, and $159,133.33 damages for detention in payment, and that the claim of the said plaintiffs from the time the cause was heard before the viewers, continued through the previous trial of the case, was grossly exorbitant, and of such a character that the defendant had the right to resist, and the presentation of such claim by the plaintiffs, with the delays incident to litigating, was solely the fault of the plaintiffs in making such an exorbitant demand, and, therefore, as matter of law, the jury cannot, in the making of them verdict in the present trial, award any damages against the defendant for or on account of delay in payment of the just compensation to which the plaintiffs may be entitled. Answer: Refused without reading. [1]

      Errors assigned were (1) above instruction, quoting it; (3) that the judgment was grossly excessive; (4, 12, 13) rulings on evidence, quoting the bill of exceptions.

      Johns McCleave, with him Clarence Burleigh and Owen S. Cecil, for appellant.
    The defendant was not properly chargeable with compensation for delay of payment upon the valuation fixed by the jury: Phila. Ball Club, Ltd., v. Phila., 192 Pa. 632; Stevenson v. Coal Co., 203 Pa. 316.
    The question as to plaintiff’s knowledge of the price paid by his father three years before was proper cross-examination: Davis v. Penna. R. R. Co., 215 Pa. 581; Ham v. Salem, 100 Mass. 350; Re Department of Public Works, 53 Hun, 280; Guyandotte Valley Ry. Co. v. Buskirk, 39 Am. & Eng. R. R. Cases (N. S.), 317; St. Louis & San Francisco R. R. Co. v. Smith, 42 Ark. 265.
    July 1, 1910:
    • Defendant should have been permitted to show the character and value of the improvements on the lot used as a basis of value by all plaintiff’s witnesses: Henkel v. Terminal R. R. Co., 213 Pa. 485.

      William B. Rodgers, with him. Gordon & Smith, for appellees.
    A verdict will not be reversed on the ground that it is excessive unless it is so grossly so as to shock the court’s sense of justice: Smith v. Times Pub. Co., 178 Pa. 481; Stauffer v. Reading, 208 Pa. 436; Quigley v. Penna. R. R. Co., 210 Pa. 162; Murtland v. English, 214 Pa. 325; Harrisburg, etc., Turnpike Road Co. v. Cumberland County, 225 Pa. 467.
    The question of whether or not damages were to be allowed for delay was properly for the jury: James v. West Chester Boro., 220 Pa. 490.
    Evidence of the sale price three years previous was properly excluded: Com. v. Pittsburg & Connellsville R. R. Co., 58 Pa. 26; Mifflin Bridge Co. v. Juniata County, 144 Pa. 365; Schuylkill Nav. Co. v. Farr, 4 W. & S. 362; Davis v. Penna. R. R. Co., 215 Pa. 581; Schonhardt v. Penna. R. R. Co., 216 Pa. 224.
   Opinion by

Mr. Justice Moschzisker,

The plaintiffs claimed compensation for 88,000 square feet of land lying between Greenough street and the yard tracks of the defendant railroad in the city of Pittsburg appropriated by the defendant company in March, 1903. Viewers were appointed April 13, 1903, and awarded $416,000, from which award both sides appealed. The appeals were tried May 4, 1908, and resulted in a verdict for $775,133.33, which the parties agree was composed of $616,000 principal and $159,133.33, compensation for delay in payment. On motion of the defendant the court below granted a new trial, without indicating its reason for so doing. At the retrial on April 5, 1909, a verdict was rendered for $765,893.33, which the parties agree was made up, $616,000 principal and $149,893.33, compensation for delay. Defendant’s motion for a new trial was refused, and it has appealed.

The first question we have to consider is whether the defendant was properly chargeable with compensation for delay. The defendant claims that this case is governed by the rule in Phila. Ball Club v. Phila., 192 Pa. 632, and Stevenson v. Coal Co., 203 Pa. 316, to the effect that where the delay is due to the unconscionably high demands of the claimant no such compensation should be allowed. The facts at bar are quite different from those in the cases relied upon by the defendant. There was no actual taking of property in either of those cases. The ball club case was an instance of a change of grade. A claim for $85,000 was “sought to be supported by theories and testimony of an illegitimate character,” and a verdict obtained for $29,000 was reversed. On a new trial “other theories and testimony were set up in support of a demand for $62,000, quite as indefensible and unreasonable as the demand in the first trial,” and a verdict for $39,000 was cut by the court below to $30,000. But the trial judge had instructed the jury, “You must add to the damages which the plaintiff has suffered reasonable compensation for the detention of those damages.” We said it was manifest that “the oppressive and unreasonable demands of the plaintiff” caused the delay, and reversed, holding that the plaintiff was not entitled to any damages on that score. The Stevenson case was an action of trespass to recover damages for the pollution of a stream with coal dirt, and this court characterized the plaintiff’s claim as “extortionate, unconscionable and incredible.”

In the present case the defendant company took actual possession of the plaintiff’s property in 1903, and has ever since enjoyed whatever revenues there were to be derived, therefrom'. At the trial the highest value claimed by the plaintiff was $12.00 a square foot, and the court below states in its opinion refusing a new trial that the jury were not asked for a verdict of more thaii $9.00 a square foot. The defendant in its plea declared the land only to be of a value of $1.00 per square foot, and gave testimony of a value of less than $3.00 a square foot. The jury rendered a verdict of $7.00 a square foot. Both parties appealed from the award of the viewers and all of the seven years’ delay, excepting two months, occurred subsequent to these appeals. In his instructions to the jury the trial judge said: “It is for you to say in the exercise of your sound discretion whether the parties are entitled to compensation for delay in receiving their money. That amount you may give or you may not, just as you conclude .... remembering that as a general principle where there has been delay which is not the fault of the plaintiff, and he has been kept out of his money, for the time lost the jury could give compensation by way of damages. But on the other hand, if it is the plaintiff’s fault and the plaintiff’s own conduct caused the delay, there can be no compensation by way of damages. . . . When you have fixed the market value at so much a foot, compare that with Mr. Rea’s price, and if you are fairly of the opinion and come to a fair and honest conclusion that the difference between the price you fix and the valuation placed by Mr. Rea was so great that you would say that it was an extortionate demand, that it was an inordinate demand, so that the officers of the railroad company were justified in contesting .... then it would be your duty, and I so instruct you, to refuse to give any damages for delay in payment. . . .” And after referring to the testimony, the charge continued: “But if ... . this was merely an honest difference of opinion .... you could give compensation for delay.” These instructions are practically in accord with those approved by us in the case of James v. West Chester Boro., 220 Pa. 490, and with the rule laid down in the cases relied upon by the defendants. It could not be said by the trial judge that the delay was due entirely to the size of the demands made by the claimants. The record shows no offer of settlement at any figure, nor do we find any indication therein that reasonably lower demands would have met with payment. The court left the question squarely and fairly to the jury, and we cannot say that there was any error in so doing. In addition to this, the court could not have affirmed the request covered by the first assignment of error, for it states that Henry B. Rea testified before the viewers that the market value of'the property was $15.00 a square foot. As pointed out by the trial judge in his charge, Mr. Rea denied this fact, claiming that he had merely said, “it was worth that to us.” The assignment is overruled.

Although it well may be contended that the verdict approaches the verge of excessiveness, this is not a case which moves us to interfere under the Act of May 20, 1891, P. L. 101. The power conferred upon this court by that act has never been exercised on the plea of the ex-cessiveness of the verdict, except in a most extreme case: Stevenson v. Coal Co., 203 Pa. 316. The question of the amount of the verdict is ordinarily for the court below, and where a grossly excessive amount is returned the trial court should never allow it to stand, no matter how many new trials it may be obliged to grant. The third assignment of error is overruled.

The plaintiffs offered in evidence for the purpose of proving title the deed of the Consolidated Gas Company to Henry Rea, Jr., dated June 21, 1900, showing a consideration of $140,000 paid by the grantee. When Henry B. Rea, one of the claimants, was upon the stand he testified that the value of the property was $12.00 a square foot, which would give a total of $1,056,000, and under cross-examination he was asked, “In June, 1900, what did you or your father pay for this property?” This was objected to, and the objection was sustained. The record then discloses that “Counsel for defendant offer on cross-examination to show by the witness for the purpose of testing the credibility of his testimony and the competency of his knowledge as to the value of this property in March, 1903, the fact that his father purchased the property appropriated by the railroad company in question in this case in the month of June, 1900, from the Consolidated Gas Company; that the said company had it upon the market for a number of years for sale, and was able to hold the property until it realized the fair market value of the same, and the price at the date of such purchase for which the said Consolidated Gas Company sold the property to the witness’s father. Also to show that there was no such increase in the market value of the property between June, 1900, and March, 1903, as would be indicated by the price paid for the property in June, 1900, and the estimate now given by the witness of its market value in March, 1903.” An objection to the offer was sustained. The defendant made practically the same offer in its case in chief, and this was refused. These rulings are assigned for error. The offers as a whole were properly refused. They contain too many points collateral to the main one sought to be proved, and the proffered evidence was not part of the defendant’s case in chief.

But after serious consideration we have reached the conclusion that under the peculiar facts of this case the question as to the purchase price of the property in June, 1900, was proper cross-examination and should have been allowed. In Davis v. Penna. R. R. Co., 215 Pa. 581, we said: “But after a witness has testified in chief .... the largest latitude should be allowed on cross-examination. ... In fact, any and every pertinent question may be put to him on cross-examination which will enable the jury to place a fair estimate on his testimony as to the damages sustained by the plaintiff by the construction of the road through the latter’s premises. The learned judge in his rulings failed to observe the difference between the well-recognized measure of damages in such cases and the right of defendant’s counsel to cross-examine the plaintiff’s witnesses so as to enable the jury to give due weight to their testimony.” It has been held in Pennsylvania from an early date that a consideration of particular sales in the neighborhood as fixing market value will not be allowed: Pittsburg, etc., R. R. Co. v. Patterson, 107 Pa. 461. But as early as 1861, in East Penna. R. R. Co. v. Hiester, 40 Pa. 56, we said on this subject: “The question might be proper by way of cross-examination to test the accuracy of the witness;” and in Becker v. P. & R. R. R. Co., 177 Pa. 252, “Of course, such evidence may be brought out by the cross-examination of witnesses;” in Henkel v. Terminal R. R. Co., 213 Pa. 485, “The good faith of a witness and the accuracy and extent of his knowledge may be tested by questioning him as to particular sales, to ascertain whether he knew of and considered them in forming an opinion. These inquiries go directly to the value of the opinion expressed;” in Gorgas v. Phila., H. & P. R. R. Co., 215 Pa. 501, “The witness may be asked in cross-examination as to his knowledge of particular sales and the prices asked for property in the community for the purpose of testing his competency to testify; but such evidence in chief is clearly incompetent;” in Schonhardt v. Penna. R. R. Co., 216 Pa. 224, “Where the witness has testified to value, his good faith and accuracy and the extent of his knowledge may be tested on cross-examination by questioning him as to particular sales of property similarly situated to ascertain whether he knew of them and considered them in forming an opinion.” The objection to the admission of testimony of particular sales is placed upon the theory that it would lead to the investigation of “collateral issues as numerous as the sales:” Pittsburg, etc., R. R. Co. v. Rose, 74 Pa. 362. It is plain that this does not apply to the, admission of testimony concerning a single sale of the very property in controversy.

If a claimant who has expressed an opinion on the value of his own property may be asked concerning sales of other properties in the neighborhood, for the purpose of testing his good faith, the question presents itself, why may he not be asked as to a sale of his own property, provided the sale in question is not too remote from the date of the appropriation. Surely in a case like the present where there is evidence showing prima facie a purchase price of $140,000, and the witness claims a value of $1,056,000, or an increase of over 650 per cent in two years and eight months, such an inquiry is relevant to test his “good faith,” if for no other reason; subject of course to his right to prove any relevant explanatory facts: Sanitary District of Chicago v. Pearce, 110 Ill. App. 592; St. Louis & San Francisco R. R. Co. v. Smith, 42 Ark. 265; Ham v. City of Salem, 100 Mass. 350. In many jurisdictions evidence of this character is considered directly pertinent on the question of value: St. Louis & San Francisco R. R. Co. v. Smith, 42 Ark. 265; Guyandotte Valley Ry. Co. v. Buskirk, 39 Am. & Eng. Railroad Cases (N. S.), 317; In re Department of Public Works, 53 Hun, 280; Enterprise Lumber Co. v. Porter, 46 So. Repr. 773; New Orleans, etc., R. R. Co. v. Barton, 43 La. Ann. 171; Cobb v. City of Boston, 109 Mass. 438; Indianapolis & Cin. Traction Co. v. Shepherd, 35 Ind. App. 601; Ham v. City of Salem, 100 Mass. 350; Peabody v. New York, N. H. & Hartford R. R. Co., 187 Mass. 489; Lanquist v. City of Chicago, 200 Ill. 69; Sanitary District of Chicago v. Pearce, 110 Ill. App. 592; Swanson v. Keokuk & Western R. R. Co., 116 Iowa, 304. But it is not necessary to go so far in the present case, for the defendant here sought to have the testimony admitted as proper cross-examination.

We have examined the cases called to our attention by counsel for the plaintiff, and we find nothing in them which necessarily excludes the question on cross-examination. Schuylkill Navigation Co. v. Farr, 4 W. & S. 362, was an action to recover damages for injuries to a grist-mill and furnace caused by the raising of a dam. The plaintiffs sought to introduce into their testimony in chief evidence of the amount of money expended in the erection of a furnace which they claimed had been rendered useless. We said: “If the measure of damages is the injury done to the property estimated by its decreased value, then it is plain that the defendants cannot be made to pay the expenses of erecting the furnace, which may have exceeded the real value of the property.” There is nothing in this case on the question of the right of cross-examination. Commonwealth v. Pittsburg & Connellsville R. R. Co., 58 Pa. 26, was a proceeding by the state to take the franchise and property of the defendant company under an act of assembly which provided that as full compensation the company should be entitled to receive payment for expenditures made in connection with work or construction upon its road. We held this rule of valuation to be inadequate and unjust, and in so doing Mr. Justice Sharswood said by way of illustration: “It would be no just compensation to an individual to pay him for his land and improvements merely what they had cost him. Their value may have been doubled in the lapse of time and by the change of circumstances.” This is quite true as a general proposition, the application of which would depend upon the facts in each particular case; but it has no relevancy to the question we have under consideration.

Mifflin Bridge Co. v. Juniata County, 144 Pa. 365, was a proceeding to condemn the bridge and the franchise of the owning company. A witness who had taken the contract for the erection of the bridge was called by the company and asked the value of the structure. This was objected to on the ground that he should' have been asked the contract price. We held that the objection was not well taken, and said, “The true question was the value of the bridge, not what it cost. The contractor may have taken it at too low a figure, or the owner may have paid too much. The county is entitled to pay for it at its actual value at the time of taking.” Bo many elements enter into the contract price of a. bridge, dependent upon the cost of materials and labor at the time of its construction, the competition in the letting of the contract, and a hundred and one other things, that the price paid would be a most uncertain guide. This case must be taken on its own facts, and has no controlling force on the question before us. In Davis v. Penna. R. R. Co., 215 Pa. 581, an effort was made to show the price which the claimant had paid for his farm seventeen years prior to the appropriation. We said: “Such evidence would have given the jury no proper estimate of its value immediately before the taking by the railroad.” The time was too remote. In Schonhardt v. Penna. R. R. Co., 216 Pa. 224, counsel for the defendant proposed to ask the plaintiff on cross-examination ■ what the two adjoining properties sold for within the past two years, “for the purpose of having the testimony go to the jury on the question of the value” of the plaintiff’s property. We said: “The offer was properly rejected. ... It is within the limits of proper cross-examination to show that the witness is unfair or that his opinion is founded on a misapprehension of facts, but it is not proper under the guise of cross-examination to develop as affirmative evidence of value facts that neither party could have shown in chief.” Here one of the avowed purposes was to have the testimony go to the jury on the question of value, not to test the credibility or good faith of the witness. Of course, under our authorities, the offer was rejected. These are the only cases approaching the point under investigation to which we have been referred.

In East Brandywine & Waynesburg R. R. Co. v. Ranck, 78 Pa. 454, the defendant proffered evidence that the plaintiff had offered to sell his farm for a certain price, and the rejection of this evidence was assigned for error. In reversing we said: “While the evidence referred to was not conclusive, nor perhaps very important, it ought not to have been excluded.” The fact that the plaintiff had offered to sell his farm at a certain price did not fix its value, but under the circumstances of that case we viewed it as some evidence to go to the jury; and so under the circumstances of this case, while the testimony sought to be elicited by the question propounded to the claimant concerning the price paid for the land would not fix the value of the property, it would be some evidence to be considered in weighing his opinion as to its value: Kentucky & Indiana Bridge Co. v. Held, 16 Ky. Law Rep. 160; Rosenstein v. Fairhaven & Westville R. R. Co., 78 Conn. 29. Where such testimony is offered the question of its acceptance or rejection will necessarily depend upon the circumstances in each particular case, the disparity between the price paid and the value claimed, the length of time between the sale and the appropriation, and other elements which may present themselves tending to show the worth of the testimony as evidence affecting the importance, and throwing light upon the accuracy and good faith, of the opinion expressed by the witness. Therefore the question will always be one for the exercise of discretion on the part of the trial judge. But in the present case the record indicates that the trial judge did not reject the testimony in the exercise of such discretion, but rather because he considered it not proper cross-examination. We are of opinion that it was proper cross-examination and should have been admitted. We overrule the twelfth and thirteenth assignments of error and sustain the eleventh.

The market value of a particular piece of real estate is to be measured by the price usually given for such property in that neighborhood, “making due allowance for differences of position, soil and improvement:" Searle v. Lack. & Bloomsburg R. R. Co., 33 Pa. 57. In Henkel v. Terminal R. R. Co., 213 Pa. 485, we said: “We see no reason why a party against whose interest a witness has testified may not show that the opinion expressed is valueless as evidence because it is, founded on a misapprehension of the facts. . . . This does not lead .... to the trial of collateral issues. It goes only to impair the value of an opinion which has become evidence in the case by showing it is based on a misapprehension of the real facts.” In the case at bar the price paid in the sale of a property known as the Klondike Warehouse figured very largely with nearly all of the witnesses as a standard of value of real estate in the vicinity. In the examination of witnesses counsel for the plaintiff called attention to the fact that this sale was the nearest in locality to the plaintiff’s property, and he examined the owner of this Klondike property with great particularity concerning the sale. Both counsel for plaintiff and defendant interrogated witnesses regarding the value of the buildings as distinguished from the value of the property as a whole, and in this way they derived the square foot value of the land. Plaintiff’s witnesses fixed the value of the improvements at a comparatively low figure, which of course proportionately increased the value of the lot. The defendant’s offer to prove the fair value of the buildings at the time of the sale was rejected, and counsel contends that had this testimony been admitted it would have shown the improvements to have been worth at least double the value placed on them by certain of the plaintiff’s witnesses; which well might have materially affected the value of the opinion expressed by these witnesses. On this state of facts we are of opinion that the testimony should have been received. The fourth assignment of error is sustained.

It becomes unnecessary for us to pass upon the remaining assignments of error. To enter upon a discussion of those which question the competency of certain of the witnesses called by the plaintiff to prove value would unduly extend this opinion. The competency of at least six of the witnesses called for that purpose is not questioned in the assignments, and presumably their testimony would have been sufficient to take the case to the jury. But as the case must go back for another trial we take occasion to say that although “the market value of land is not a question of science and skill upon which only an expert can give an opinion,” Penna. & N. Y. R. R. & Canal Co. v. Bunnell, 81 Pa. 414; yet in each case the trial judge should see to it that every witness called to prove value has a proper foundation of knowledge to make his opinion of some real worth, before admitting it as evidence: Friday v. Penna. R. R. Co., 204 Pa. 405. In large cities “neighborhood” is a relative term, and the field which a witness may take into consideration in forming an opinion of the selling price of land in the vicinity of a particular property, should not only be reasonably adjacent thereto, but it should be of the same general character as the immediate locality in which such property is situated; otherwise the opinion is of little value.

The judgment is reversed with a venire facias de novo.