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STEELE v. SHEPPERD (07/02/63)

July 2, 1963

STEELE
v.
SHEPPERD, APPELLANT.



Appeal, No. 60, March T., 1963, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1956, No. 624, in case of James Steele and Georgina Margaret Steele, his wife, v. Lewis A. Shepperd and Dora Foster, executors of estate of Ike Browarsky, deceased, Florence Lipscher et al. Judgment reversed.

COUNSEL

Charles F. Dean, with him David M. Janavitz, for appellants.

Zeno Fritz, with him Gregor F. Meyer, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 411 Pa. Page 482]

OPINION BY MR. JUSTICE ROBERTS

James Steele and his wife, appellees, owners of the Bellevue Theatre Building in the Borough of Bellevne, Allegheny County, instituted an action of assumpsit for damages against Lewis A. Sheppard and Dora Foster, Executors of the Estate of Ike Browarsky, deceased, and Florence Lipscher and Joseph Browar, Executors and Trustees of the Estate of Harry Browarsky, deceased, and Associated Theatres, Inc., appellants, arising out of certain covenants and conditions in a written lease requiring lessees to keep and surrender

[ 411 Pa. Page 483]

    the premises in a good state of repair. The term of the lease was from September 1, 1944, to August 31, 1959. With consent of the lessors, the lease was assigned on May 15, 1946, to Associated Theatres, Inc., with the proviso that Ike and Harry Browarsky were to remain personally liable upon it. Harry Browarsky died April 15, 1947, and Ike Browarsky died on April 19, 1954.*fn1

Paragraph 3 of the lease provided that the lessees were to pay for all repairs to the premises, both interior and exterior, and were to surrender the premises upon termination of the lease in as good order and repair "as they now are, reasonable wear and tear excepted." Paragraph 8 of the lease required the lessees to keep and maintain all theater equipment in good order and repair and to renew and replace all worn out and broken equipment so that the theater equipment "shall at all times be kept in good condition; and at the expiration of the term [the lessees] will surrender the same in as good order and condition as when installed, reasonable wear and tear excepted."

At the conclusion of the trial, the jury rendered a verdict in favor of plaintiffs in the sum of $28,000. Defendants moved for a new trial, alleging errors in the admission of certain evidence and in receiving the testimony of a witness offered as an expert. The motion was denied, and this appeal followed.

, during the trial, Charles E. Lang, called by plaintiffs, was permitted, over objection, to testify as an expert witness on the cost of repairing damages to 1,056 theater chairs and the cost of replacing ...


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