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Meehan v. Kaveny Bros. Oil Co.

Decided: October 20, 1953.

JOHN MEEHAN, PLAINTIFF-RESPONDENT,
v.
KAVENY BROS. OIL COMPANY, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT



Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Defendant appeals from a judgment of the Essex County District Court entered in favor of plaintiff.

On July 10, 1951 plaintiff executed an agreement with defendant for the purchase and installation of an oil burner, including a 550-gallon outside tank. The installation was completed September 20, 1951. The oil burner went out of order November 7, 1952. This was at once reported to defendant but it failed to act on the complaint. Plaintiff then called in the Lindeman Company, which had filled the tank only two days before. The tank measured empty. A phone call requesting defendant to look at the tank because a leak was suspected brought no satisfaction, nor did a personal visit to its office. Defendant took the position that the one-year service guarantee period under the agreement had expired in September. Plaintiff then arranged for the Lindeman Company to install a new tank, but before doing so again phoned defendant to take care of the condition, without result. When the tank was raised two or three very porous spots were discovered through which the oil had leaked. The ground around the tank was oil-soaked.

The complaint is in three counts: (1) defendant had guaranteed the installation for one year, but the tank was defective and defectively installed, resulting in loss of oil and requiring replacement of the tank; (2) defendant had represented the tank to be new when in fact it was not; and (3) defendant had agreed to sell plaintiff a new tank in perfect condition. The main defense was that the guaranty period had expired and if any complaint was made to defendant it came after the expiration date. At the trial

defendant stipulated that it had agreed to install a new tank. The trial judge in his oral conclusions found as a fact that the tank was defective when installed and that the condition must have had its origin some three years before. Judgment in the sum of $295 and costs was entered in plaintiff's favor.

Defendant's first point on appeal is that the trial court erred in permitting MacIntosh, one of plaintiff's witnesses, "to testify as to hypothetical questions and technical data outside the scope of his qualifications." He had inspected the tank when it was taken out of the ground and found the exterior apparently in good condition except for the two or three porous spots. He actually pushed his finger through one of them. He testified the tank had rusted through from the inside; there was evidence of corrosion. The only question objected to in the course of his direct examination was:

"Assuming this tank had been installed as a new tank on September 20, 1951, and was in new condition without defect, could that tank possibly have corroded to the point of the condition you found it in in November of 1952?" [This was error; the date was December 26, 1952.]

The objection was overruled and the witness answered "no," meaning, as the court brought out, that a new tank should last longer than a year.

MacIntosh had had 20 years' experience as manager of a business supervising the installation and servicing of oil burners. During that time he bought, sold and installed about 500 oil tanks, but had "pulled up" only four. We think that the range of his experience was sufficient to enable him to answer the questions.

Whether a witness has knowledge or experience sufficient to qualify him as an expert is a matter left to the discretion of the trial court, and its decision is conclusive unless clearly shown to be erroneous as a matter of law. Rempfer v. Deerfield Packing Corp. , 4 N.J. 135, 141 (1950); Schnoor v. Palisades Realty and Amusement Co. , 113 N.J.L. 506, 507

(E. & A. 1934); 2 Wigmore on Evidence (3 rd ed.), ...


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