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GITHENS v. WILDSTEIN (01/03/68)

decided: January 3, 1968.

GITHENS, REXSAMER & COMPANY, INC., APPELLANT,
v.
WILDSTEIN



Appeals from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1960, No. 135, in case of Githens, Rexsamer & Company, Inc. v. Harold Wildstein, Manuel Wildstein and Hannah Blitzstein, trading as Wildstein & Sons.

COUNSEL

Richard W. Hopkins, with him John Francis Gough, and White and Williams, for plaintiff.

Harry A. Short, Jr., with him Liebert, Harvey, Bechtle, Herting & Short, for defendants.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result. Mr. Justice Musmanno dissents.

Author: Eagen

[ 428 Pa. Page 203]

A fire, originating in a building occupied and used by the defendants as a warehouse in the city of Philadelphia, spread to an adjoining commercial property owned by the plaintiff, causing substantial damage. The latter instituted this action of trespass seeking compensation for its loss, alleging that negligence on the part of the defendants caused the fire. A jury trial resulted in a verdict for the plaintiff in the sum of $55,000. The court en banc awarded a new trial, but denied defendants' motion for judgment notwithstanding the verdict. Both sides appealed. We affirm.

A Captain Reeves of the fire marshal's office of the City of Philadelphia investigated the fire and requested the Department of Licenses and Inspections of the city to have one of its electrical inspectors join in an inspection of the property where the fire originated. As a result, James Lonergan, an electrical inspector of the department, accompanied Reeves to the site and made an inspection of that portion of the defendants' property not destroyed by the fire.

Mr. Lonergan died before trial, however another employee of the department testified. He produced and identified two documents from the department's files: (1) entitled "Electrical Wiring and Equipment Inspection, Final Notice"; and (2) a memorandum handwritten on two sheets of paper by Lonergan. The first document was on an official form supplied by the department to its employees for making reports following an inspection. Nothing in this report indicated a violation of any particular regulation under the department's jurisdiction. The second document stated, inter alia, that during his inspection of the refrigerator room on the second floor, Lonergan found "that the area mostly charred was at the blower fan on the refrigerating system"; also, that an electrical motor of 1/20 horsepower which drives the cold air through the

[ 428 Pa. Page 204]

    refrigerator fins was fused at 20 amperes and "the rear of the motor . . . [either due to lack of lubrication or friction] became ignited and blew the flames through the refrigerated fins igniting the insulation on the ceiling."

Over objection, the handwritten document, described before, was admitted as trial evidence. The lower court en banc subsequently ruled that this was error and of such prejudicial consequence that a new trial was required. We agree. That it constituted a major link in plaintiff's proof of causation and negligence is unquestioned. In fact, it was in large part the basis of a hypothetical question posed to an expert witness called by the plaintiff, which drew in response the opinion that the fusing of the particular motor at 20 amperes was so high as to cause the motor to overheat and continue so for an unreasonable length of time and eventually to catch on fire.

The memorandum involved was hearsay and admissible only if it falls within an exception to the hearsay rule.

Two exceptions are pertinent: (1) Business records, admissible under the Uniform Business Records as Evidence Act, Act of May 4, 1939, P. L. 42, § 2, 28 P.S. § 91b.; and (2) An official statement or testimonial assertion prepared by a public official pursuant to an official duty. We ...


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