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NAGER ELEC. CO. v. CHARLES BENJAMIN

September 28, 1970

NAGER ELECTRIC CO., Inc.
v.
CHARLES BENJAMIN, INC., and Ralph R. Lanciano t/a Lanciano Hauling and Rigging et al. CAMPBELL SOUP COMPANY v. CHARLES BENJAMIN, INC., and Benjamin Warehouse Company, Inc. and Sidney Benjamin, Florence Cook and Gertrude Steinberg, Individually and trading as Charles Benjamin, a partnership. WESTERN GEAR CORPORATION v. CHARLES BENJAMIN, INC. WESTERN GEAR CORPORATION v. BENJAMIN WAREHOUSE CO., Inc. and Sidney Benjamin, Florence Cook and Gertrude Steinberg, Individually and trading as Charles Benjamin. MILWAUKEE GEAR COMPANY v. CHARLES BENJAMIN, INC., et al.


Joseph S. Lord, III, District Judge.


The opinion of the court was delivered by: LORD, III

These are five actions, consolidated for trial, to recover damages for the loss of plaintiffs' machinery resulting from a fire in defendants' warehouse. The verdict was for plaintiffs and defendants have moved for judgment or, in the alternative, for a new trial.

 1. The motion for new trial

 a. The admission of statements of defendants' employees

 Lt. P.W. Short, of the Philadelphia Fire Department, twice interviewed two of defendants' employees, Steinard and McElwee. Lt. Short first interviewed Wayne Steinard, who had been engaged in attempting to start a forklift truck by a battery jumper cable when the fire started. This interview was directly across the street from and in full view of the raging fire. Lt. Short's notes of that interview show:

 
"-- trying to start tow motor
 
-- spilled gasoline on floor
 
-- had jumper cables then gasoline ignited then cardboard cartons"

 Short also spoke to John McElwee at the same place a few minutes later. As to this interview, Short's testimony as to his notes was:

 
"Saw fire in adjoining bay. He was putting a rear in a truck, and I can't make out the next word, in bay area."

 About 15-20 minutes after his first interview with Steinard, Short spoke to McElwee and Steinard together, in an office, out of sight of the fire and about a half block away. The following note resulted:

 
"Wayne took twelve-volt battery to jump forklift right next to the cartons. * * * next to the mechanic's bay in the second bay on the south side. Started the forklift. Told him to shut forklift. Float on carburetor stuck. Gasoline on concrete floor. Told to shut down. Spark from jumper on forklift ignited gasoline. Was in middle of fire. He got burned. Tried to fight fire. Used five or six extinguishers. Gasoline ignited the cartons. Three hundred cartons."

 Short testified that his first conversation with Steinard occurred at about 2:30 p.m. During both interviews, Steinard and McElwee, according to Short, were "upset". Further, when defendant Sidney Benjamin spoke to the two men around 3:00 p.m., they were "upset, quite upset," "excited to a degree and quite nervous -- I guess their hearts were pounding very bad." As to their ability to answer questions, Benjamin said "they answered more or less in a way that I imagine I would have been, I think, upset * * *." Fire Marshal Connolly testified that McElwee and Steinard willingly gave their statements as to how the fire started. He said: "We didn't have to coax them to tell us what happened, how the fire started. They came right out and spoke to us about it and told us."

 Defendants now assert that we erred in admitting the statements as spontaneous utterances. *fn1" In defining the requirements for the admissibility of such ...


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