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Milwaukee Gear Co. v. Charles Benjamin Inc.

September 7, 1972

MILWAUKEE GEAR COMPANY
v.
CHARLES BENJAMIN, INC., ET AL., APPELLANTS IN 71-1700. CAMPBELL SOUP COMPANY, APPELLANT IN 71-1701, V. CHARLES BENJAMIN, INC., ET AL. CAMPBELL SOUP COMPANY V. CHARLES BENJAMIN, INC., ET AL., APPELLANTS IN 71-1702. NAGER ELECTRIC CO., INC., APPELLANT IN 71-1703, V. CHARLES BENJAMIN, INC., ET AL. NAGER ELECTRIC CO., INC. V. CHARLES BENJAMIN, INC., ET AL. APPELLANTS IN 71-1704. WESTERN GEAR CORPORATION V. CHARLES BENJAMIN, INC., APPELLANT IN 71-1705. WESTERN GEAR CORPORATION V. BENJAMIN WAREHOUSE CO., INC., ET AL., APPELLANTS IN 71-1706.



Author: Rosenn

Before SEITZ, Chief Judge, and GIBBONS and MAX ROSENN, Circuit Judges.

Opinion OF THE COURT

MAX ROSENN, Circuit Judge.

This is an appeal from judgments entered by the United States District Court for the Eastern District of Pennsylvania in five actions, consolidated for trial, in which plaintiffs sought to recover damages for losses of machinery and equipment stored by them in the defendants' warehouse. Both the plaintiffs and the defendants in this diversity tort action have appealed.*fn1 The major questions presented concern evidentiary rulings of the trial judge.

The incident which founds this case is a fire which occurred on February 26, 1964, in a Philadelphia warehouse operated by the defendants.*fn2 Since limited issues are raised in this appeal, we present only the factual background of the case necessary to our decision.

Plaintiffs attempt to establish defendants' negligence as the cause of the fire hinged upon the testimony of a Lt. Short, at the time Assistant Fire Marshal, assigned to the area in which the warehouse was located. The fire raged for a number of hours. When he learned of the fire, and while it was still in progress, Lt. Short, in accordance with his established duties, commenced his investigation of its cause. In the course of that investigation, he interviewed two warehouse employees of the defendants, Wayne Steinard and John McElwee. Although Steinard and McElwee were interviewed some time after the fire commenced, they were first interrogated directly across the street from the blazing fire and in full view of it. About fifteen or twenty minutes after the first interview with Steinard, both gentlemen were again interviewed by Lt. Short in an office, out of sight of the fire and about a half block away.

At trial, Lt. Short, called as a witness by the plaintiffs, read from his notes of those interviews. The testimony so elicited was damaging to the defendants, and they objected to its introduction.*fn3 The district court allowed the testimony as a spontaneous utterance - an exception to the general hearsay exclusion. The defendants' first issue raised before this court concerns the propriety of this ruling.

Defendants argue that this testimony was not a spontaneous utterance because the interviews took place a half block away from the fire scene; that the "engine companies, fire boats, ladder companies, and firemen were out of sight;" and the joint statements were made not at the height of the fire, but at its conclusion, "long after the last fire company had arrived at the scene." Finally, they note that Lt. Short's testimony should be read as meaning that the employees were "normal and rational" at the time the joint statement was made.

We believe that the district court analysis of the legal tests applicable for admission of evidence as a "spontaneous utterance" was correct; furthermore, we find substantial evidence to support his conclusions.

We summarized the applicable law of "spontaneous utterances" in McCurdy v. Greyhound Corp., 346 F.2d 224, 226 (3d Cir. 1965):

Over the years the Pennsylvania courts and this court have recognized that a hearsay statement is admissible as part of the 'res gestae' if made by a participant in the event during a period when he was, for any reason, incapable of reasoned reflection about the occurrence. [Citations omitted]. Such a statement is trustworthy if made during the period when 'considerations of self-interest could not have been brought fully to bear' on the event. 3 Wigmore, Evidence 738 (2d ed.) as quoted in Allen v. Mack, [345 Pa. 407] 28 A.2d [783] at 784. In each case the court is required to examine the facts in light of the general principles. Commonwealth v. Noble [371 Pa. 138, 88 A.2d 760], supra. Thus, extensive examination of applicable authorities and comparison of decisions based on the analysis of other quite diverse fact patterns is neither necessary nor useful. No arbitrary time or other limits on the operation of the rule have been accepted by the Pennsylvania courts. Campbell v. Gladden, [383 Pa. 144, 118 A.2d 133] supra; Commonwealth v. Noble, supra; Smith v. State Workmen's Ins. Fund, 140 Pa.Super. 602, 14 A.2d 554 (1940); Commonwealth v. Stallone, 281 Pa. 41, 126 A. 56, 58 (1924). (emphasis supplied).

When reduced to its basic structure, the defendants' argument is that, the plaintiffs did not present such facts as would enable them to properly utilize the rule of law defined above. The defendants assert, in essence, that the fire was ominous enough to eliminate "considerations of self interest" only in its initial stages: that is, when the firetrucks were arriving on the scene, and actual knowledge that a fire had started, became known.

This was not an ordinary fire. It was "one of the largest fires" in the history of the Philadelphia Fire Department. It was about seven hours in duration and brought to the scene hundreds of firemen, more than two dozen engine companies, six ladder companies, two fireboats and one rescue squad. As the district court pointed out, "an event such as this fire is not the momentary shock of the ordinary accident. It is an ongoing terror, continuing until it is extinguished or brought under control." (emphasis supplied). A fire reaches its crescendo at the moment it hovers between possibly raging out of control, and the chance it may be brought within manageability. This point, in some fires, may be early; in others, it may be late. Here, as the district court noted: "... the statements... were made at the height of the conflagration." Additionally, it should be noted that testimony was presented which tended to establish that Steinard and McElwee were "upset" at the time they were interviewed by Lt. Short. We believe that there was sufficient evidence to warrant the trial judge's assessment that the statements were made at a time when the employees were still in a state of nervous excitement and their reflective powers were still in abeyance.

The second point raised by the defendants in this appeal concerns whether the district court properly allowed the plaintiffs to introduce certain evidence for impeachment purposes. The incident to which the defendants call attention concerns the testimony of Chief Fire Marshal Connolly, a witness called by the defense. Connolly, who had been present at the second interview which Lt. Short had with Steinard and McElwee, testified that McElwee had stated that the fire was caused by "an explosion in the towmotor... the backfiring of the towmotor." (emphasis supplied). This testimony was damaging to the plaintiffs. The district court permitted the plaintiffs to question Connolly on the contents of the official ...


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