Before BIGGS, GOODRICH, and McLAUGHLIN, Circuit Judges.
This case arises on appeal from a judgment of $2300 for the plaintiff based on the alleged negligence of defendant. Plaintiff and defendant each occupy a floor in a building owned by a third party. Plaintiff's place of business was, at the time of the occurrence dealt with here, on the floor directly below defendant. As part of the water purifying machinery needed in its business, defendant used a "fulflo Filter". Sometime during the weekend of February 14-15, 1943 water escaped from defendant's premises and leaked through the floor to the damage of plaintiff. The jury found for the plaintiff. This finding was necessarily that the operation of the "Fulflo Filter" was negligent, since the escape of water from the filter was the source of the damage. The case is in federal court on grounds of diversity only; no federal question is involved.The facts all have their setting in Pennsylvania and the law of Pennsylvania controls both as to the existence of liability and the damages recoverable.
In Sierocinski v. E. I. du Pont de Nemours Co., 1941, 118 F.2d 531, this Court had occasion to consider the defendant's liability in a tort claim based on negligence under Pennsylvania law. It was there pointed out that the burden rests upon the plaintiff to show a case upon which the inference of negligence may be drawn. In certain circumstances, it was said, the burden of going forward with the evidence is eased by an application of Pennsylvania's own doctrines of (1) res ipsa loquitur or (2) the inference of negligence permissible from a defendant's exclusive control of the instrumentality which inflicts the injury. The doctrine of res ipsa loquitur, it was explained, is limited in Pennsylvania to cases involving injury to passengers or to patrons of utlities dispensing a service which, if not properly managed and controlled may readily prove danagerous. Res ipsa loquitur clearly has no part in the case under consideration now.
But what we may for convenience call the "exclusive control" rule seems with equal clearness to be applicable to this set of facts. That the defendant had exclusive control over the part of the premises where the filter was kept and operated is shown by undisputed testimony. There was no doubt that the damage came by reason of escape of water from the filter. That this combination of facts is one from which a defendant's negligence can be found in absence of satisfactory explanation by him, is established by several Pennsylvania decisions which deal with liability for escaping water.*fn1
The defendant advanced a theory to explain the accident and some facts purporting to support it. It showed that at the time of the accident the weather had suddenly turned very cold. It also endeavored to prove that the building was likewise very cold at the time. This was disputed and there was testimony both ways. The cold forced the filter apart, defendant's testimony said, and the water escaped. The jury was at liberty to find against defendant upon the temperature conditions in the building. It was also free to reject the explanation that the filter came apart because of the contraction of one part of it which was fastened to the other by screw threads. The pieces were composed of the same metal and the jury was not required to find that the coefficient of expansion was different for one piece than the other. The finding for the plaintiff necessarilty showed that the defendant's explanation was rejected as it well could be.
The clarity of the result for the plaintiff is clouded by evidence introduced by it against defendant's objection consisting of statements purported to have been made by one Housley to witnesses for the plaintiff.*fn2 This witness was a "warper foreman" for defendant. It was not his job to look after the filter; another employee did that. But when the plaintiff's people came to work on the morning in question and found water in their place of business they went upstairs to defendant's floor. There Housley is stated to have said that someone took the filter out and did not put it back in, or "forgot to put the Fulflo Filter on". We do not agree with defendant's argument that those statements were inadmissible because they are opinion only; we think they are statements of fact.
Were they properly admitted? It has been held in Pennsylvania that non-contractual admissions made by one who is an agent must have been part of the res gestae to be competent evidence against the employer.*fn3 Were these statements part of the res gestae?*fn4 The learned district judge sustained their admission on this ground. The plaintiff says this is right; at the time the statements were made the escaping water was still dripping, so the "thing done" was still in the process of doing. This sounds very well if one says it fast. But it goes a long way from the reason back of the rule allowing spontaneous exclamations as an exception to the Hearsay Rule. Wigmore thus states the principle (6 Wigmore on Evidence, 3rd Ed., § 1747(1)): "This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock."
Granted that the exact factual situation described in this language is not required to make spontaneous utterances admissible, it is clear that in this case the facts are so very far away from it that the limit of applicablility of the rule has been long since passed. Nor do we find anything in Pennsylvania decisions which lends support to an argument for admissibility.*fn5
But we think the defendant waived this objection. In cross-examination of the plaintiff's witness A. A. Fogley, the defendant asked for the statement made by Housley to the witness. When Housley was called by defendant he was asked in direct examination if he had made the statement attributed to him. Objection to competency is lost if the objecting party himself offers the same testimony as evidence.*fn6
The defendant complains that improper items of damage were included. The verdict was for $2300. As to items amounting to $1723.50 we find no difficulty. These comprise outlay for wages, cloth, sewing, thread, machine parts, labor and so on. There was a point made about an item for finished or partly finished trousers which plaintiff cut up to make trouser loops to replace those damaged by water. This is recoverable within the established rule concerning avoidable consequences.Other material was not available; the loops had to be supplied and the plaintiff got the material where he could find it.
The plaintiff also claimed $1771.83 for what he called "disruption of production," but which the defendant says is a claim for furture profits with a different name used. Plaintiff does not claim that he is entitled to recover profits. He was not kept out of his premises and the items already mentioned include the cost of cleaning up the factory and replacing or repairing damaged goods. The plaintiff's witness, A. A. Fogley said by the phrase disruption of production he meant that but for the water damage twice as many trousers would have been turned out in the same period by the same number of employes working the same hours. If his does not sound in terms of loss of profits, it is something else equally speculative. We think the pecuniary loss shown was limited to the items above mentioned amounting to $1723.50.
The judgment is reversed and a new trial ordered unless the plaintiff within 30 days files a remittitur consenting to the reduction of ...