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TOOLE v. MILLER (11/09/53)

November 9, 1953

TOOLE, APPELLANT,
v.
MILLER



Appeal, No. 135, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, April T., 1950, No. 514, in case of Ferdinand J. Toole, trading as Triangle School of Drafting v. Guy M. Miller, trading as Miller Aviation Center. Judgment affirmed.

COUNSEL

J. Thomas Hoffman, with him Charles M. Donley and Charles A. Berghane, for appellant.

Zeno Fritz, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 375 Pa. Page 509]

OPINION BY MR. JUSTICE BELL

Plaintiff brought an action in assumpsit to recover for the value of his aeroplane which had been stored with the defendant and had been destroyed by fire.

[ 375 Pa. Page 510]

Plaintiff's evidence of negligence consisted of the following: "This fire, like all aircraft fires was extremely severe, highly destructive and, of course, was the consequence of an accident. An aircraft is a highly inflammable device.... The fire occurred as the consequence of an accident in installing a piece of radio equipment... in an aircraft located approximately in the center of the hangar." The aeroplane which contained the radio which needed repair was "covered with a fabric very much similar to broadcloth, and treated with a very inflammable chemical.... The engine in the aeroplane was not running... the battery had been disconnected and the fuses pulled.... Plaintiff's aeroplane was stored at the extreme end of the hangar."

The judgment is affirmed on the following opinion of Judge HENRY ELLENBOGEN: "This case comes before the court en banc upon defendant's motion for judgment n.o.v.,...

"The plaintiff, in his own case, proved the following: He stored a 1949 Luscombe Silvaire 8F De Luxe All Metal Aeroplane in the hangar owned and maintained by defendant, at the old Allegheny County Airport. On March 19, 1949, a fire occurred in defendant's hanger which, in the language of the seventh paragraph of plaintiff's complaint, offered and admitted in evidence, 'totally destroyed defendant's hangar, place of business, and some fifteen (15) aeroplanes stored within said hangar, among which aeroplanes totally destroyed was plaintiff's aforesaid Luscombe aeroplane.' The fire occurred in the morning, shortly after the employees had reported for work, and broke out at a Stinson plane, covered with a highly inflammable material. A radio repair mechanic, employed by defendant, was preparing to work on the Stinson plane, the tools were lying on the floor, the battery had been disconnected, and the fuses pulled.

[ 375 Pa. Page 511]

"A witness for plaintiff also testified that an electric light bulb encased in a wire cage with an extension cord plugged in was hanging over the aeroplane ...


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