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BATTISTONE v. BENEDETTI (04/25/56)

April 25, 1956

BATTISTONE
v.
BENEDETTI, APPELLANT.



Appeals, Nos. 11 to 16 inclusive, March T., 1956, from judgments of Court of Common Pleas of Washington County, May T., 1953, No. 311, in case of Dom Battistone v. Rudy Benedetti and Ernest Reed, trading as The Dependable Furnace Company, Donald M. Vidale, and J. W. Proie, also known as Joseph W. Proie, trading as Air Tron Company. Judgments affirmed; reargument refused May 28, 1956.

COUNSEL

John E. Costello and Andrew E. Sheridan, with them James McIntyre, for appellants.

George I. Bloom, with him Milton D. Rosenberg, John C. Rogers, Charles G. Sweet, Bloom, Bloom & Yard and Rogers & Sweet, for appellees.

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

Author: Musmanno

[ 385 Pa. Page 164]

OPINION BY MR. JUSTICE MUSMANNO

On November 10, 1950, at 3:30 in the morning, in Scenery Hill, Washington County, a night club building in the final processes of construction and not yet ready for occupancy was wrecked and completely destroyed by explosion and fire. The plaintiff-owner of the building attributed the cause of the explosion to

[ 385 Pa. Page 165]

    faulty installation of twin furnaces in the basement by the defendants, Rudy Benedetti and Ernest Reed, Donald M. Vidale, and J. W. Proie, and he accordingly brought suit in trespass against them.

The jury returned a verdict of $51,000 in favor of the plaintiff against all the defendants and a verdict of $3,500 in favor of Benedetti and Reed in their counterclaim against the plaintiff. All the defendants appealed and here ask for judgment n.o.v. or a new trial.

It was in September, 1950, that the defendants, Benedetti and Reed, trading as the Dependable Furnace Company, entered into an agreement with Battistone to install in his new building two Niagara Oil Furnaces, the furnaces to be obtained through J. W. Prioe, trading as Air Tron Company, distributors for the Niagara Company. Donald M. Vidale, engineer for Air Tron, was present at the time of the discussion between Battistone and the partners, Benedetti and Reed. Battistone testified that Vidale agreed "... on what kind of system would be the best up there and it would need two furnaces and it would cost $5,100; that is including all the work and that he would see, that he would supervise the job and see everything was done right and that the Air-Tron was the distributing company for the Niagara Company in Cleveland."

Benedetti and Reed began the work of installation about October 15, 1950 and completed it on November 9, 1950. Vidale was present and participated in the work on three different days. He was present also on the night of November 9th when the furnaces were lighted for the first time. As the apparatus warmed up, it gave off fumes and hissing noises which caused Frank Agotti (the general contractor) to exclaim: "What are you trying to do, blow us ...


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