Summary
In Benshetler v. Palumbo Motors, 110 A.2d 207 (Pa.), the Supreme Court of Pennsylvania held that a music instructor was properly permitted to answer a hypothetical question as to whether a professional singer, who accompanied herself on the piano, could play the piano well enough to accompany herself professionally, assuming that she had sustained a described finger injury of a permanent nature.
Summary of this case from Williams v. DawidowiczOpinion
Argued November 11, 1954.
January 3, 1955.
Evidence — Damages — Loss of earning power — Opinion evidence — Expert witness — Opinion on ability to play piano.
Where as a result of defendant's negligence plaintiff lost a part of her right index finger, and it appeared that she was a professional singer who had been taking piano instruction for the purpose of becoming her own accompanist, it was Held that (1) plaintiff's manager, an experienced theatrical booking agent, was properly permitted to testify as to what plaintiff could have earned but for the accident, and (2) plaintiff's music instructor was properly permitted to express an opinion that as a result of the accident the plaintiff could not play the piano well enough to accompany herself professionally.
Before STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeals, Nos. 246 and 247, Jan. T., 1954, from judgments of Court of Common Pleas No. 2 of Philadelphia County, June T., 1952, No. 887, in case of Marilyn Chernow Benshetler, a minor, by her guardian, Benjamin Chernow et ux. v. Palumbo Motors, Inc. Judgments affirmed.
Trespass for personal injuries. Before CRUMLISH, J.
Verdicts, for minor plaintiff in sum of $7500, remitted to $5500, and for parent-plaintiffs, in sum of $2500, remitted to $2000, and judgments thereon. Defendant appealed.
Ralph S. Croskey, with him Croskey Edwards, for appellant.
Isadore H. Bellis, with him Arnold M. Kessler and Bernstein Bernstein, for appellees.
Minor plaintiff, twenty years of age, was having an automobile demonstrated to her by an agent of the defendant; as she stepped out of the car, the salesman closed the automobile door on her finger, causing amputation of a part of her right index finger. * * *
Defendant now appeals the dismissal of the motion for new trial averring, inter alia, one, that the plaintiff failed to properly prove loss of earning capacity, and secondly, that the trial judge erred in permitting plaintiff's music teacher to express an opinion as to whether or not plaintiff could as a result of the accident play the piano well enough to accompany herself professionally.
In the opinion of the Court, plaintiff sufficiently proved a lessened capacity to earn money in her chosen profession as a result of the injury sustained. There was sufficient testimony to show in what amount her earning power was lessened, so that the jury had a satisfactory basis for its award.
At the time of the accident, March 1952, plaintiff was a professional singer, under engagement at Palumbo's Night Club. She was performing there as a singer of semi-classical songs, accompanied by an orchestra. Her contract of employment called for a salary of $107 a week, exclusive of Sunday, and $18 for Sunday, or a total of $125 a week, less 10% for agent's commission. Testimony disclosed that since 1948 plaintiff had been taking piano instruction in addition to vocal lessons at the Philadelphia Conservatory of Music for the purpose of becoming her own accompanist, and obtaining professional engagements as a "lull" act, which is the trade term for a singer who accompanies herself.
Plaintiff's manager, a man with 22 years of experience as a theatrical booking agent, testified that a lull act was in greater demand in 1952 than a straight singer. He further testified that at the time of the accident, plaintiff had reached the professional status of a lull singer, and he had booked her first such appearance in Florida, which engagement had to be cancelled because of the injury to plaintiff's index finger, and her subsequent inability to play the piano. Plaintiff was to have received $250 a week as a lull act, in contrast to the $150 and $175 a week she commanded as a singer. Such testimony was clearly admissible: McCullough v. Holland Furnace Co., 293 Pa. 45, 49 (1928). One experienced and familiar with a certain trade or business may give his opinion as to the sum a duly qualified plaintiff can earn: DeHaas v. Penna. R. R. Co., 261 Pa. 499 (1918). We do not find it significant that she never actually performed professionally as a lull act. In DeHaas v. Penna. R. R. Co., supra, evidence was introduced to show what the minimum wage was that plaintiff could have made as a graduate forester, since he had completed a four year's course in forestry the previous year, even though he had never been thus employed. The court held such evidence was properly admitted, and in quoting from Helmstetter v. Pittsburgh Rys. Co., 243 Pa. 422, 426, stated: "Lessened capacity to earn in any actually available occupation may be shown. But it must be shown by proper and satisfactory proof, and not left to mere conjecture."
It is our well-considered opinion that there was sufficient and satisfactory proof presented to the jury to show plaintiff's decreased earning power, and the amount thereof, so that the jurors could be properly guided in their determination of an award to plaintiff and parent-plaintiffs.
Defendant's second objection was that plaintiff's music instructor was not competent to answer the following question: "Assuming that a person had injured her right hand, the index finger at the very tip, so that a skin graft was necessary, and that a little piece of bone was taken away; assuming, further, that the person states that when pressure is applied at the tip of that finger it is painful, are you prepared to state whether that person could play the piano well enough to accompany herself professionally?"
Before the witness answered, defense counsel objected, was overruled and granted an exception. Whereupon the witness was asked, "Can you express an opinion? Say yes or no". The witness responded, "yes". She was then asked, "What is your opinion?" Defense counsel again objected and was overruled by the court. We find no error in the trial judge so ruling.
Justice SHARSWOOD, in Ardesco Oil Co. v. Gilson, 63 Pa. 146, 151 (1869) stated: "An expert, as the word imports, is one having had experience. No clearly defined rule is to be found in the books as to what constitutes an expert. Much depends upon the nature of the question in regard to which an opinion is asked. There are some matters of which every man, with ordinary opportunities of observation, is able to form a reliable opinion (cases cited). It is not necessary, as it is said in one case, to call a drover or butcher to prove the value of a cow: Ohio Railroad Co. v. Irwin, 27 Illinois 178. Nor is it imperatively required that the business or profession of the witness should be that which would enable him to form an opinion. (Cases cited.) . . . While, undoubtedly, it must appear that the witness has enjoyed some means of special knowledge or experience, no rule can be laid down, in the nature of things, as to the extent of it. It must be for the jury to judge of the weight to which his opinion is entitled. It was held in Howard v. Providence, 6 Rhode Island 514, that the competency of a person to give his opinion under oath as an expert, so that, upon the preliminary examination, he appears to have any pretensions to speak as such, rests very much in the discretion of the judge trying the cause."
The foregoing case was cited as authority in an opinion by GUERIN, J., affirmed Per Curiam in Moodie v. Westinghouse Elec. Corp., 367 Pa. 493 (1951), wherein, inter alia, testimony was admitted over the objection of defense counsel that the witness was not qualified.
In the instant case, the trial judge was satisfied, preliminarily, that the qualifications of the witness made her fully competent to answer the question objected to by the defendant. The witness, at the time of trial, was a Director of the Philadelphia Conservatory of Music, a position she had occupied since 1940. For over twenty years, she had been an instructor of piano, and was connected with the Philadelphia Conservatory of Music all that time. The school prepares professional musicians and teachers. The plaintiff had been a student of both voice and piano there from 1948 until the time of the accident, and the witness had observed the plaintiff both play and sing. As an instructor of the piano, the witness explained the importance of the index finger in playing the piano, describing it as "the hub of the wheel". She further testified that "It (the index finger) makes the artist's hand — in order to make the fingers function, your fingers from here to the knuckles (indicating) is flat, and this finger is the most used, really, of all."
This witness, with twenty years of piano instruction experience in preparing professional musicians was in the opinion of the trial judge, fully competent to state whether or not a person could play the piano well enough to accompany herself professionally if circumstances were as assumed in the question asked.
The trial judge carefully instructed the jurors that the credibility of witnesses was for them; and it was for them to determine, as a fact, whether or not the injury to the finger rendered the minor plaintiff incapable of improving her earning power or bringing it up to a lull entertainer. By its verdict, the jury found the defendant negligent, and plaintiff free from contributory negligence.
The judgments are affirmed on the opinion of Judge CRUMLISH.