Appeal, No. 485, Oct. T., 1959, from order of Court of Common Pleas of Chester County, Sept. T., 1956, No. 68, in case of Samuel Silverberg et ux. v. Downingtown Farmers Market and Auction. Order reversed.
G. Clinton Fogwell, Jr., with him Robert W. Lentz, and Reilly and Fogwell, for appellants.
John M. Kurtz, Jr., for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 192 Pa. Super. Page 85]
This is an appeal from an order granting a new trial after a verdict for the plaintiffs in a trespass action brought to recover for damages to the plaintiffs' merchandise.
The plaintiffs had rented a stall at the Downingtown Farmers Market and Auction where they sold magazines and wearing apparel. On April 6, 1956, after they had paid their rent for that and the following day, they were told at about 11 o'clock at night to leave immediately. After protesting without avail that they had paid rent for the next day, the plaintiffs closed their stall and told a representative of the defendant company that they would return the next day for their merchandise. That night after the plaintiffs left, the representative of the defendant loaded the plaintiffs' merchandise on to a truck and left it out in the rain. Later the defendant delivered the merchandise to the plaintiffs' home in Philadelphia. The merchandise was so badly damaged by exposure to the weather that it was sold as junk for $20. The plaintiffs sued for the damage and received a verdict in their favor for the amount claimed.
The court's reason for granting a new trial was set forth in its opinion as follows: "The jury was instructed that the basic measure of damages was the market value of the plaintiffs' merchandise which was destroyed or damaged by the negligent conduct of the defendant in exposing the same to the effects of the weather. The amount of the verdict was predicated solely upon the testimony of Frances Silverberg relating to value of the merchandise. A review of that equivocal testimony satisfies us that, although in form the witness testified to the market value of the merchandise at the time of its destruction or damage, in fact she was merely testifying to the price which the records of the plaintiffs showed had been paid by the
[ 192 Pa. Super. Page 86]
plaintiffs for the merchandise at some unspecified time or times.
"In these circumstances, the verdict in that respect was against the evidence (because the evidence would support a verdict for nominal damages only) and, therefore, in justice should not stand. For this reason alone, a new trial will be awarded."
Frances Silverberg is the daughter of the plaintiffs. She was associated with them in their business since 1936, and kept their books. She testified that she was familiar with the wholesale market value of her parents' goods immediately prior to the damage and that the value of the wearing apparel was $2153.77 and the books and magazines was $666.50. (The jury's verdict was for ...