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Nobero Co. v. Ferro Trucking

Decided: November 18, 1969.

NOBERO CO., PLAINTIFF-RESPONDENT,
v.
FERRO TRUCKING INC., DEFENDANT-APPELLANT



Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Kilkenny, P.J.A.D.

Kilkenny

Plaintiff landlord sued defendant tenant for damage to the tenanted building in Hillside, New Jersey, which resulted from a fire allegedly caused by defendant's negligence. The case was tried before a jury. After 12 minutes of deliberation it returned a unanimous verdict in favor of plaintiff for $17,000, the stipulated amount of the damage. Defendant timely appealed the judgment based upon the verdict.

Reversal is sought on two grounds. First, defendant contends that the trial court erred when it allowed into evidence, over objection, testimony by Fire Captain Mateer of the Hillside Fire Department that, in his investigation of the fire, he was told sometime after the fire by one of two employees of defendant, who were in the building when and where the fire occurred, that the fire was caused, in essence, by the use of gasoline, which the fire captain concluded was a "careless use of gasoline." The fire captain was unable to identify which one of the two employees made this statement to him.

The second claim of reversible error is that the trial court abused its discretion in allowing plaintiff's attorney to lead unduly plaintiff's witness, Fire Captain Mateer, in the critical area adverted to above, over defendant's repeated objections thereto.

The record discloses the following facts. During the early afternoon of July 12, 1966 a fire broke out at the premises owned by plaintiff and leased to defendant for the garaging and maintenance of its trucks. Vincent Naddeo, a foreman or maintenance supervisor in the employ of defendant for 15 years, and Walter Marcin, a mechanic in the employ of defendant for nine years, were the only two persons in the garage occupied by defendant immediately prior to and at the time the fire began. There was "just one" vehicle in the garage, "a tractor." There was no trailer attached to it. Defendant owned the tractor.

The tractor had been in the garage three to four weeks. It was there for a complete overhaul -- "transmission, rear, tires, brakes." Marcin testified, "Everything was completed outside of the tail light. All we had to do was take it outside and adjust the governor on it." That would have been the next job. The vehicle had been painted inside the garage; it had remained within the building during the three or more weeks of the complete overhaul.

At the time of the fire Marcin was replacing the tail light; he had started to take off the old tail light. It was to be replaced by a new assembly, which was on the floor "right alongside of" Marcin. He had only started "to twist one bolt" when he saw the fire. Naddeo was on the right side of the truck. Marcin could see only his feet. Marcin testified that he was in the back of the tractor, in a "squatted" position, when he saw "a big ball of flame" coming, moving across the floor toward them, from the left front of the building, "as you look at the front from inside the building back toward the left front of the truck." Marcin described the floor as "clean as a whistle" and the ball of fire as being "about two feet." He yelled to Naddeo, "Fire on the deck," jumped up, and he and Naddeo ran for the fire extinguisher to try to put it out. Not succeeding, both men ran and called the fire department. Marcin called from "next door" and Naddeo phoned from the "back room" of the garage.

Neddeo testified that immediately prior to the fire he was "in the process of removing what is called a pressure sensitive stencil, this is self-adhesive." He was half-way through the removal of that on the right door when the fire took place. He denied telling Captain Mateer that he had washed the truck down with gasoline. He explained, "In the trade you don't use solvent, and gasoline is a solvent, to remove over-spray or anything from a vehicle, you can't even use soap and water, not only gasoline." This is so, said Naddeo, "because it will dull the finish or probably lift it from the metal which it has been sprayed onto."

Marcin stated in his testimony that he "believed" there was one five-gallon can of gasoline, which was kept toward the front of the building "by the door." He "believed" that it was in the building on the day of the fire. The can had a "screw top." Marcin testified that he knew the top was screwed on. The gasoline was used primarily for emergency calls "when a truck breaks down and runs out of gas." It was also used "sometimes" for washing parts. Marcin testified that neither he nor Naddeo had washed any parts that day in gasoline. While admitting that he smoked cigarettes, Marcin swore that he was not smoking at the time when he was working behind the truck. The tractor itself had a gasoline tank on it.

The foregoing summary of the testimony of Marcin and Naddeo, the only two occupants of the garage when the fire began, leaves unanswered the question, "Who started or what was the cause of the fire?" Their actions, immediately before the ball of flame was first seen -- Marcin's removing a tail light assembly preparatory to its replacement with a new one and Naddeo's work effort at the right door in removing a pressure sensitive stencil, self-adhesive -- do not establish a causal relationship to the fire. Yet, the fire did occur and these employees of defendant were the only two persons in the building at the time.

There was only one other witness, namely, Fire Captain Mateer. The testimony of this witness, ...


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