McKenna v. Citizens, Natural Gas Co. , 201 Pa. 146 ( 1902 )

Opinion by

Mb. Justice Fell,

The plaintiff was injured by an explosion of natural gas in his dwelling house. On a former trial he was allowed to recover for the permanent loss of earning power without any proof of his earnings before or after the accident. See 198 Pa. 31. On this trial the plaintiff testified that he was employed by his wife to take charge of a grocery and dry goods store which she owned, the arrangement having been made several years before at the request of his wife, who desired him to take the store in his own name, and upon his objecting to this had agreed that he should have a salary of $1,000 a year. His salary was not drawn regularly but as he needed it; a part remained in the business all the time, a part of that drawn was put back when the business required it, and a part was used to build a house in which he and his wife lived, and he was unable' to tell what amount was due him at the time of the accident.

The defendant offered to prove the amount of stock carried in the store, the volume of business done, and the usual compensation paid in the neighborhood for such services as the plaintiff rendered. These offers were rejected. The testimony should have been received. The agreement set up belongs to a class readily established by collusion and difficult if not impossible of direct disproof. Evidence that the salary was in excess of that usually paid and not warranted by the business went directly to the credibility of the witness and tended to show, in connection with his own testimony, that the business was conducted under a family arrangement for tbe mutual benefit of the plaintiff and his wife. The burden was on him to show what his earning capacity was, if he sought to recover for its permanent loss ; and any testimony by the defendant tending to show that there was no real employment, or that under an arrangement not permanent, he was receiving more than his services were worth, and that therefore his salary was not a test of his earning power was competent.

In the part of the charge assigned as error, it was said in speaking of the plaintiff’s salary that it did not follow as a necessary conclusion that his services were not worth more than $1,000, but the fact that he accepted that amount was persuasive but not conclusive evidence that he considered the salary a fair one. Abstractly this is true enough, but as there was no testimony that his services were worth more than he was receiving, nor any from which such an inference could arise, it was a truth out of place. Its tendency was harmful to the defendant, as it was a suggestion calculated to swell the verdict to an amount beyond that established by the proofs in the case.

The first, second, third and sixth assignments of error are sustained and the judgment is reversed with a venire facias de novo.