Charles H. Hinkson, Chester, for appellant.
Ralph B. D'Iorio submitted, Media, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., notes his dissent.
[ 242 Pa. Super. Page 185]
This is an appeal from the order of the lower court en banc granting appellee's motion for a new trial on the ground that the trial judge erred in refusing to grant appellee's motion to strike the testimony of appellant's expert witnesses. Because appellee did not move at trial to strike the testimony for the reason he now argues, he has waived that reason and neither the lower court en banc in the first instance nor we on appeal may consider it. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255,
[ 242 Pa. Super. Page 186322]
A.2d 114 (1974). We therefore reverse and reinstate the verdict for appellant.
Appellant, a wholesale florist, brought an action in assumpsit to recover damages from appellee for an alleged breach of warranty arising from appellee's 1968 sale of peat to appellant. Appellant used the peat to pot a large quantity of azaleas, poinsettias and gardenias that appellant was growing for sale. Allegedly the peat was defective and killed the plants. The case was tried on April 22 and 23, 1974, and the jury returned a verdict in favor of appellant in the amount of $98,247.45.
Because appellant's expert witnesses were available only for a limited time, they testified first before the factual foundation of the case had been laid by appellant's other witnesses. The experts were asked a hypothetical question in which they were asked to assume certain facts that appellant proposed to prove through the testimony of its fact witnesses. Appellee did not object to this procedure, but reserved its right to object to the hypothetical question after the fact witnesses had concluded their testimony.
The experts were asked to assume, among other data, two facts: (1) that before 1968 appellant had never used appellee's peat in the preparation of its azaleas, gardenias and poinsettias, and (2) that appellant had used the peat as directed.
At the close of appellant's case, appellee objected to the hypothetical question. Appellee moved to strike the testimony of the expert witnesses on the ground that appellant had not proved the first assumed fact on which the experts had based their testimony: that before 1968 appellant had never used appellee's peat. The trial judge, after an on-the-record discussion of that fact only, overruled the objection. After overruling the objection, however, the judge asked if appellee had any other motions; appellee said no.
[ 242 Pa. Super. Page 187]
Appellee then closed its case without offering any testimony. Counsel for appellee apparently argued to the jury in his closing remarks that appellant had not shown that it had used the peat as directed. Those remarks are not recorded, however. In any event, counsel never made this ...