Appeal from order of Court of Common Pleas of Delaware County, No. 4543 of 1971, in case of Nationwide Mutual Insurance Company v. Alfred Mazza.
Francis T. Sbandi, with him Fronefield, deFuria and Petrikin, for appellant.
William C. Beatty, with him Butler, Beatty, Greer & Johnson, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Cercone, J.
[ 233 Pa. Super. Page 245]
Plaintiff, Nationwide, appeals the order of the court below granting defendant's motion for judgment n.o.v.
This case involves a fire which occurred in an apartment which was insured by Nationwide. Nationwide paid for damages caused by the fire and then, as subrogee, sued the insured's son, the defendant herein, claiming that the fire was caused by his negligence. Nationwide contends that during a visit to his mother's apartment the defendant started the fire on the living room couch while smoking a cigarette.
Basically the facts of the case are as follows. On the day of the fire the defendant's mother, Mrs. Mazza, arrived at her apartment between 4:30 P.M. and 5:00 P.M. Although she could not recall if she smoked any cigarettes at all that evening, she was certain that if she did it would have been before 5:00 P.M. At approximately 7:00 P.M. a Mr. Massey came to the apartment to pick up Mrs. Mazza for a date. They immediately left and locked the door. Although Mr. Massey smokes, Mrs. Mazza did not know if he smoked on that occasion. Mr. Massey did not testify at trial. Between 7:15 P.M. and 7:30 P.M. the defendant entered the apartment to visit his mother. It should be noted that only the defendant and his mother
[ 233 Pa. Super. Page 246]
had keys to the apartment. The defendant stayed at the apartment less than fifteen minutes and then left, locking the door.
A crucial factual question at trial and on this appeal is whether the defendant smoked while at the apartment. At trial the defendant testified that he could not remember if he smoked at that time or not. This testimony, however, is inconsistent with the testimony of two other witnesses. Fire Chief John Gorman, who extinguished the fire, testified that the defendant told him at 8:30 P.M., after the fire was extinguished, that while he was at the apartment earlier that evening he had smoked while sitting on the couch and playing with the dog. A claims adjuster testified that the defendant made that same admission to him the day after the fire.
By coincidence Chief Gorman was about 200 yards from the apartment when he was alerted of the fire and within a few minutes he arrived at the apartment and extinguished the fire with a portable fire extinguisher.*fn1 Chief Gorman then investigated the fire and at trial gave his expert opinion that the fire originated in the cushion of the couch and was caused by either a spark or a cigarette. The defendant stipulated to the Fire Chief's qualifications.
Based on the above evidence the jury returned a verdict in favor of Nationwide. Defendant submitted motions for a new trial and for judgment n.o.v. The lower court granted the motion for judgment n.o.v. stating that there were not sufficient facts produced at trial to send the case to the jury and that reasonable inferences existed that someone else who was smoking ...