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BLANCHARD v. WILT. (04/17/61)

April 17, 1961

BLANCHARD, APPELLANT,
v.
WILT.



Appeal, No. 17, March T., 1961, from judgment of Court of Common Pleas of Indiana County, Dec. T., 1958, No. 129, in case of Raymond T. Blanchard et ux. v. B. O. Wilt and Eugene T. Wilt, individually and trading and doing business as B. O. Wilt and Son. Judgment reversed.

COUNSEL

Alexander A. Notopoulos, with him Martin Goodman, W. Parker Ruddock, and Fisher, Ruddock & Simpson, for appellants.

James W. Mack, Jr., for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 403 Pa. Page 381]

OPINION BY MR. JUSTICE BOK.

This case arises from a fire that damaged the plaintiffs' house in Indiana County. Defendants, a partnership, are general contractors who had been engaged by plaintiffs to remodel their house and who in turn had hired as subcontractors an electrician named Shelley and a plumber named Nehrig.

On October 28, 1957, while Nehrig was working on the plumbing, he borrowed from defendants' stock a heater aptly called a "salamander", in order to warm the house for his workmen. At about eight p.m. the house caught fire, and the inference is not challenged that the salamander was too close to the joists and flooring overhead and set fire to them. The plaintiffs are entitled to this inference as well as to all favorable testimony and the reasonable inferences from it, since the court below entered a compulsory non-suit: Gatens v. Vrabel, 393 Pa. 155 (1958), 142 A.2d 287.

When the court refused to remove the non-suit plaintiffs appealed.

Liability of these defendants might be founded on either of two legal pillars: one, that Nehrig was the defendants' servant and not an independent contractor,

[ 403 Pa. Page 382]

    or two, that defendants assumed enough supervision of the salamander to render them independently negligent.

It is necessary for us only to discover any theory, if one exists, for sending the case to the jury and to avoid discussing others. Since we think that enough evidence exists of defendants' independent negligence, we will reverse on that point alone and leave the relationship between ...


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