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June 28, 1962


Appeal, No. 137, Jan. T., 1962, from judgment of Court of Common Pleas of Chester County, March T., 1958, No. 74, in case of Harry Goldberg, Benjamin Goldberg and William Goldberg v. R. Grier Miller & Sons, Inc. and Texas Eastern Transmission Corporation. Judgment reversed.


Richard L. Cantor, with him G. Clinton Fogwell, Jr., and Reilly, Fogwell and Lentz, for appellants.

Dallett Hemphill and Theodore R. Griffith, with them M. Carton Dittmann, Jr., and Griffith & Corliss, and Ballard, Spahr, Andrews and Ingersoll, for appellees.

Before Bell, C.j., Musmanno, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 408 Pa. Page 3]


The plaintiffs - Harry, Benjamin and William Goldberg - owned a one-story warehouse in West Chester, standing hard by a two-story garage owned by R. Grier Miller and Sons, Inc., which leased the second floor to the Texas Eastern Transmission Corporation. The garage building rose some 13 feet above the crest of the plaintiff's warehouse.

On March 20, 1958, the roof of the garage building collapsed, exerting such a downward force against the eastern wall of the building that it disintegrated, avalanching bricks, beams, trusses and debris on the plaintiffs' warehouse, accomplishing its demolition. The plaintiffs brought suit against the garage owners and the second floor tenant, averring negligence in the construction and maintenance of the garage building, together with lack of care in conducting inspections which would have revealed structural defects. The defendants filed preliminary objections which were dismissed and the case proceeded to trial. The evidence showed that there had been a heavy fall of snow (24 inches) at the time of the collapse of the garage building. The defendants claimed non-liability, asserting that the accident was the result of an "act of God." The jury returned a verdict for the defendants and the plaintiffs appealed.

The appellants contend that the jury was incorrectly instructed in that it was not informed that, when the defendants interposed the defense of "act of God," they had the burden of proof of establishing this supernatural interposition. In other words, they argue that the defense of "act of God" is an affirmative defense which requires the defendant to establish that it was the intervention of the Supreme Being and not the defendant's negligence which brought grief to the plaintiffs.

This case was tried prior to the rendition of our decision in the case of Bowman v. Columbia Telephone

[ 408 Pa. Page 4]

    and what part was wrought by the hand of God, and then to apportion the several liabilities. Is this within the capacity of twelve mortal men and women? "Man in his finite mind cannot pass upon the wisdom of the Infinite. There is something shocking in attributing any tragedy or holocaust to God. The ways of the Deity so surpass the understanding of man that it is not the province of man to pass judgment upon what may be beyond human comprehension. There are many manifestations of nature which science has not yet been able to analyze, much less cope with. In any event no person called into court to answer for a tort may find exoneration from the act of negligence charged to him by asserting that it was not he but the Supreme Being which inflicted the wound and the hurts of which the plaintiff complains." (Bowman v. Bell Telephone Co., supra).

To instruct a jury to distinguish between what is commanded by the Lord and what is the result of man's carelessness is to intermingle religious loyalties with earthly considerations in such a manner as to produce results which may satisfy neither Church nor State.

The phrase "act of God" in the sense in which it is interpreted in the legal and commercial world did not have its genesis in the law. It emerged from the chrysalis of the primitive mind groping for comprehension in the primordial misty days when man sought to adjust to the universe and he craved explanation of what to him was unexplainable. In this failure to understand, innate intelligence was supplanted by superstition which proceeded to attribute to the heavens all that could not be spelled out in the blundering, amorphous language of the age. Thus, when the thunder blasted and ...

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