Appeal from judgment of Court of Common Pleas of Lackawanna County, April T., 1960, No. 658, in case of Michael Marrazzo, Rose Marrazzo and John Marrazzo v. Scranton Nehi Bottling Company, Inc.
Paul A. Barrett, with him Russell J. O'Malley, Robert P. Casey, and Nogi, O'Malley & Harris, for appellants.
Harry P. O'Neill, Jr., with him Ralph P. Needle, and Walsh & O'Neill, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
On November 22, 1956, Michael Marrazzo and Rose Marrazzo, his wife, owned a building located at 402
Race Street, Scranton, wherein John Marrazzo, their son, conducted a business known as Quality Cleaners, a business which involved the cleaning, repairing and dyeing of clothing and the retail sale of men's clothing. Early in the evening of November 22, 1956, a fire occurred which resulted in the total destruction of Marrazzos' building and most of its contents.
For some years there had been a coin-operated electrically cooled vending machine for the sale of bottled soft drinks located in the rear of the building. This machine was owned and serviced by Scranton Nehi Bottling Company, Inc. (Nehi); its location in the building had been selected by Marrazzos; between Nehi and Marrazzos there was no written agreement, Nehi receiving a profit by adding to its charge for cases of soft drinks an additional amount for the use of the machine; Nehi kept the machine in repair.
Marrazzos instituted a trespass action in the Court of Common Pleas of Lackawanna County against Nehi to recover the damages caused by the fire to their building and its contents. It was Marrazzos' theory that it was Nehi's duty to keep the vending machine in proper operating condition, that Nehi had failed in the performance of that duty and that, by reason of the breach of that duty, the machine caught fire and, in turn, set fire to the building. Nehi's defense was two-fold: (1) that Nehi had assumed no duty to service and maintain the machine but that such service and maintenance was Marrazzos' responsibility and (2) that the negligence, if any, of Nehi was not the cause of the fire but that the fire occurred because of the actions, either by mischief or design, on the part of an outside agent.
The parties stipulated that the case should be tried on the issue of liability before President Judge Hoban without a jury and that, if Nehi should be found liable,
As we read the opinion of the court en banc the conclusion of the trial judge that Nehi was under a legal duty to service and maintain this vending machine very properly was not disturbed.*fn2 As stated in that opinion: ". . . the trial Judge's conclusions depend entirely upon physical evidence as examined and analyzed by [Dr. Willard and Professor Forbes], . . . the scientific deductions which they made and their ultimate opinion. All the physical evidence has been available to and has been examined [by the court en banc] and the scientific evidence has been reduced to cold type. The question before us is whether or not the physical evidence, scientific analysis and scientific deductions therefrom support the ultimate opinion of [Marrazzos'] experts -- as against the opinion of [Nehi's] expert*fn3 who claimed that the damage to the [vending machine] was caused by external fire, not caused by faulty operation of the machine. So far as this critical point is involved, credibility is not an issue."
The majority of the court en banc*fn4 were of the opinion: (1) that the evidence did not clearly indicate "which of the wires into the relay box failed to receive the overload and therefore fused at the end causing a short circuit within the box, arcing and accelerating high temperatures, and fire communicated to the outside"; (2) that, assuming that "the entry wires into the relay box did fuse at the end as a result of abnormally high temperatures", the opinion of ...