Duffy v. National Janitorial Services, Inc.

240 A.2d 527, 429 Pa. 334, 1968 Pa. LEXIS 808

• Court: Supreme Court of Pennsylvania
• Decided: April 16, 1968
• Docket: Appeal, 51
• Status: Published

Opinions

Opinion by

Mb. Justice Musmanno,

Edward B. Duffy was the owner of a building at 104 North York Road, Hatboro. He and several other lawyers, all plaintiffs in this case, occupied the building in the practice of the law. The National Janitorial Services, Inc., defendant in the case, entered into a contract with the plaintiffs to perform certain services consisting of cleaning offices, emptying waste baskets, emptying ashes from the incinerator and removing trash and ashes.

On the night of May 7, 1963, a fire broke out in the plaintiff’s offices causing considerable damage, and the plaintiffs brought suit in trespass against the National Janitorial Services, charging it with negligence in the service it rendered the plaintiffs.¹

In the ensuing trial the jury returned a verdict in favor of the plaintiffs in the sum of $37,011.05, and the defendant has appealed, seeking judgment n.o.v. or, in the alternative a new trial. The defendant contends that the plaintiffs failed to prove any negligence on its part. It is admitted that on the night of May 7, 1963, Lewis McKinney, an employee of the defendant, was on the Duffy premises performing his janitorial services. In the course of this employment he withdrew ashes from the incinerator and placed them into a cardboard box, which he deposited in the basement of the building., The plaintiffs submitted as their thesis during the trial that it was the consignment of the ashes to the inflammable container which ignited the ruinous fire.

Carbutt W. Alman, the Hatboro Fire Chief, and Sergeant Kiggins, the State Police Fire Marshal, testified that in their expert opinion, after inspecting the gutted building, the fire had begun in the cardboard box which nestled close to a small table, that the resulting flames burned through the table up to a gas meter, which melted, causing gas to escape, and that all these elements combined in combustion to precipitate a conflagration.

It would not be unreasonable to conclude, and evidently the jury did so conclude, that it was the dumping of the ashes into a cardboard box which produced the blaze which worked the destruction of which the plaintiffs complain. But, the defendant contends, the facts do not warrant such a conclusion. It insists that the ashes thrown into the cardboard box were cold, and that the jury could not find otherwise because McKinney testified he had stirred the ashes with his hand. The defendant argues further that since the plaintiffs called McKinney as their witness, they were bound by his testimony,² and that, therefore, the ashes had to be cold.

When men and women leave their homes and occupations to perform jury duty, they are not required to leave behind them their common sense. Their evaluation of what is reasonable and credible is part of their equipment as jurors, and if they conclude that, when McKinney said he had churned the ashes with his fingers to find out if they were cold, he was adding an ice cube of invention to his memory of that hot night, the jurors cannot be accused of capriciously ignoring his testimony. In that respect, the jurors could well have reasoned that no sensible person would dip his hands into what might well have been hot ashes to find out if they were really hot. There are many ways of skinning a cat, the proverb says, and there are many ways of determining if a stove is hot without sitting on it.

The jury could well find that McKinney was negligent from the beginning in placing ashes into so easily ignitable a substance as a paper box. All ashes, including those of broken dreams, had at one time to be ardent. Thus, in the center of those remnants of what was once a crackling incandescence, there can always be an ember which needs but a slight breeze or a breath of hope to blaze anew.

Why would McKinney subject himself to the peril of roasted fingers by a digital plowing of fire relics when he could easily have assured himself of a non-injury by pouring water over the perilous substance he was handling? Also the jury could well have asked, in testing McKinney’s credibility, why it did not occur to him to place the ashes in a tin can or other metal container so as effectively to insure noninflammability.

Within the scope of our decision in the case of Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, the jury was justified in reaching its conclusion that it was the manner in which the defendant’s employee disposed of the ashes taken from the incinerator which caused the plaintiffs’ losses.

In its bid for a new trial, the defendant argues that the trial court erred in not allowing the defendant to call as an expert one Alexander Marks to present his opinion on the origin of the fire. The judge, after questioning the offered witness, concluded that he was not qualified to state an authoritative opinion on the facts of the case. The court said, and the record bears out his statement, that Marks had never attended any institute or seminar dealing with fire causation and had attended the scenes of but few fires in his life. The witness may have been an expert in some other field, but, in the proper exercise of his discretion, the trial judge ruled that he was not qualified to express an opinion as an expert in fire causation.

The trial judge has wide discretion in matters of this kind. Jerome v. Laurel Pipe Line Co., 197 Pa. Superior Ct. 131; Steele v. Shepperd, 411 Pa. 481, and we do not find in this case that the judge abused his discretion in not allowing Marks to give his opinion on the origin of the fire.

The defendant also avers that the judge erred in not reading to the jury several points for charge which it submitted. A reading of the court’s entire charge reveals that the law embraced in the submitted points were amply covered in the judge’s instructions.

Nor do we find substantiated the defendant’s complaint that the court erred in instructing the jury on the law of contributory negligence or that his charge was inadequate or confusing.

Judgment affirmed.

Mr. Justice Jones, Mr. Justice Eagen, Mr. Justice O’Brien and Mr. Justice Roberts concur in the result. Mr. Chief Justice Bell dissents.

1 Tlie Philadelphia Electric Company, the Tri-County Construction Company and James Rowe were brought in as additional defendants but the court entered a compulsory nonsuit in their favor, and no appeal was taken from that action of the court.

2 “It is true, as a general rule, a party cannot be permitted to impeach the veracity of his own witness, yet, he may disprove tlie facts to which his witness has testified”: P.R.R. Co. v. Fortney, 90 Pa. 323, 328. “The mere fact of calling a witness does not mean that the party thereby admits as true everything the witness may say, and he is not estopped from proving the facts to be otherwise by other evidence”: Henry, Pennsylvania Trial Evidence (2d ed.), §476.