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SPIWAK v. ALLEGHENY COUNTY (11/21/50)

THE SUPREME COURT OF PENNSYLVANIA


November 21, 1950

SPIWAK, APPELLANT,
v.
ALLEGHENY COUNTY

Appeal, No. 150, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1949, No. 82, in case of Joseph Spiwak v. County of Allegheny. Judgment affirmed; reargument refused December 29, 1950.

COUNSEL

George S. Goldstein, for appellant.

John W. Mamula, Assistant County Solicitor, with him Nathaniel K. Beck, County Solicitor and Frank D. Young, Assistant County Solicitor, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Drew

[ 366 Pa. Page 146]

OPINION BY MR. CHIEF JUSTICE DREW

Plaintiff, Joseph Spiwak, has appealed from a judgment of the Court of Common Pleas of Allegheny County, refusing his motion for a new trial and sustaining a verdict for plaintiff in the sum of $62000.00 in an appeal from the Board of Viewers of that County.

By authority of a Public Utility Commission order, dated the 17th of September, 1947, the County of Allegheny instituted condemnation proceedings against certain properties in the Borough of Whitaker, Allegheny County, in preparation for the construction of a new bridge over the Monongahela river.Plaintiff's property, consisting of a lot 177.96 feet in length by 25 feet in width and a two-story frame building was included among those taken. However, only so much of the property as the greater part of the house occupied was condemned and the remainder of the lot to the average depth of about 142 feet was not touched. At the trial expert witnesses for defendant set the value of the property prior to the taking at $4,500.00 and between $3,300 to $3,500 subsequent to the taking. Plaintiff's attorney, on cross-examination attempted to have these witnesses break down the figures and place a market value on the building as distinct from the lot prior to the improvement and upon each separately as affected by the improvement. The learned trial court sustained defendant's objections to this line of questioning and plaintiff now seeks a new trial on the ground that such testimony was admissible on cross-examination.

Plaintiff has cited McSorley v. Avalon Boro. School Dist., 291 Pa. 252, 139 A. 848, in support of his contention and has called our attention specifically to the language on page 255 where this Court said: "The cross-examination may, of course, cover a wider field [than the examination in chief]. 'In fact, any and every pertinent question may be put to him on cross-examination

[ 366 Pa. Page 147]

    which will enable the jury to place a fair estimate upon his testimony as to the damages sustained by the plaintiff': Davis v. Penna. R.R. Co., 215 Pa. 581, 585." By so speaking, argues plaintiff, this Court has laid down a rule of admissibility of evidence broad enough to allow plaintiff's questions to be asked of defendant's witnesses.

This conclusion is clearly erroneous. The language quoted by plaintiff merely recognizes the rule that the scope of questions on cross-examination, in a case of this nature, may be broader than those asked on the examination in chief for the purpose of impeaching the credibility of the witness*fn1 While it is true that considerable latitude is permitted on cross-examination for such a purpose, nevertheless, 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: Schonhardt v. Penna. R.R. Co., 216 Pa. 224, 65 A. 543. We have repeatedly held that the proper method of determining the measure of damages sustained in condemnation proceedings is to obtain the difference in the market value of the tract as a whole before the taking and afterwards as affected by it and not by the addition of the separate values of each item constituting the entire property: Kleppner

[ 366 Pa. Page 148]

    was proper for the jury to know this for the purpose of determining the weight to be given to his testimony and to enable it "to place a fair estimate upon his testimony as to the damages sustained": Davis v. Pennsylvania R.R. Co., 215 Pa. 581, 585, 64 A. 774 (1906).

However, I agree with counsel for the appellee that what I conceive to be error was rendered harmless in view of the fact that the "breakdown" or separation of the values of ground and building was afterward brought out by counsel for the appellant as appears in the testimony. For this reason only, I concur in the result.

Justices HORACE STERN and CHIDSEY join in this concurring opinion.


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