January 17, 1957
Appeal, No. 238, Jan. T., 1956, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1953, No. 4382, in case of Joseph V. Connor et al. v. Millard F. Hawk et al. Judgment reversed. Trespass for property damage. Before WATERS, J. Compulsory non-suit entered as to both defendants; plaintiffs' motion to take off non-suit overruled and final order entered. Plaintiffs appealed.
Henry T. Reath, with him James J. McCabe, Jr., and Duane, Morris & Heckscher, for appellants.
David A. Saltzburg, and Howard R. Detweiler, with them Morris W. Kolander, Kolander & Saltzburg, and Ambler, Detweiler & Walsh, for appellees.
Before Stern, C.j., Jones, Chidsey, Musmanno and Arnold, JJ.
[ 387 Pa. Page 481]
OPINION BY MR. JUSTICE ARNOLD
Plaintiffs appeal from the order of the court below refusing their motion for removal of compulsory non-suit in this action of trespass for damages sustained in the destruction of their drugstore building and contents by fire.
Viewing the testimony, as we must in such cases, in a light most favorable to plaintiffs, the following appears: By contract with plaintiffs Philadelphia Wholesale Drug Company, defendant, decorated plaintiffs' store windows at fixed intervals. On the day in question, their employe, Hawk, individual defendant,
[ 387 Pa. Page 482]
proceeded to decorate one of the windows. For this purpose he used crepe paper and cellophane furnished by defendant Drug Company. Some, if not all, of these materials were quite inflammable.
After working in and out of the window for approximately two and one-half hours, during which no other person was near the window, a fire started in the window and resulted in destruction of the building and contents. Within minutes before the fire, Hawk was observed smoking a cigarette as he worked at a table several feet away from the entrance to the window, preparatory to taking some of the paper into it. He was seen to lay the cigarette on the table; to then pick it up "after he laid it there"; after which "he put it in his mouth and then a few minutes later ... went into the window." The witness testified that he had the cigarette as he went toward the window, but did not "know what he done with it then," but that immediately thereafter the fire started. It was shown there were electrical outlets at the window and near a radiator upon which Hawk had to step to enter the window. However, there were no wires in or around the window, no fuses had been blown, nor were any wires burned, nor was there any evidence of overheated equipment.
This testimony was sufficient to establish negligence of the defendants and causation. Although there was no direct evidence, the circumstances were such to permit such findings by a jury without engaging in surmise or guess. To establish negligence by circumstantial evidence, the circumstances must be "'so strong as to preclude the possibility of injury in any other way and provide as the only reasonable inference the conclusion' that the [accident] was caused by the negligence of defendant in the manner alleged": Sharble v. Kuehnle-Wilson, Inc., 359 Pa. 494, 500, 59 A.2d 58:
[ 387 Pa. Page 483]
men cannot differ about it, I find myself unable to join in this court's order of reversal. The unanimous action of the court below, sitting en banc, in refusing to remove the non-suit, which the learned trial judge granted, appears to me to be patently warranted by the record.
The plaintiffs' right to recover damages for the destruction of their store and goods by fire depended upon their proving that the fire was caused by the negligence of the defendant Hawk. All that is in the case on that score is derived by basing one presumption of fact upon another, namely, that Hawk carried a lighted cigarette into the storewindow, which he was decorating, and that the cigarette started the fire. Indeed, the presumption that he carried a cigarette into the store window was obliterated by Hawk's positive denial in his deposition which the plaintiffs offered in evidence in their case.
I would affirm the order of the court below.
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