DeFrank v. Sullivan Trail Coal Co.

• Decision Date: 24 April 1967
• Citation: 425 Pa. 512,229 A.2d 899
• Parties: August DeFRANK and Clara DeFrank, his wife, and August DeFrank, t/a Hazleton Sanitary Wipers, v. SULLIVAN TRAIL COAL CO., a Pennsylvania Corporation.
• Court: Pennsylvania Supreme Court

Page 899

229 A.2d 899

425 Pa. 512

August DeFRANK and Clara DeFrank, his wife, and August DeFrank, t/a Hazleton Sanitary Wipers, v. SULLIVAN TRAIL COAL CO., a Pennsylvania Corporation.

Supreme Court of Pennsylvania.

April 24, 1967.

Rehearing Denied June 23, 1967.

George I. Puhak, Hazleton, Andrew I. Puhak, Wilkes-Barre, Eugene Chovanes, Philadelphia, for appellants.

J. Earl Langan and Saverio Rosato, Pittston, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

This is an appeal by the plaintiffs, from judgment of compulsory non suit. Plaintiffs, August DeFrank and Clara DeFrank, his wife, own two buildings in the City of Hazleton, Pennsylvania, one of which was damaged by fire on February 24, 1962. The buildings were occupied by the Hazleton Sanitary Wipers, a trade name of August DeFrank's business, whose merchandise and equipment was destroyed.

The appellee, Sullivan Trail Coal Co., was engaged in strip mining coal in the westerly section of the City of Hazleton, and in the course of its work, used explosives. Shortly before 1:00 o'clock in the afternoon, a fire was discovered on the second floor of the two story building. Appellants sued appellee in trespass, alleging that an explosion, set off by defendant, shook the ground, causing a short circuit in the electrical terminal box, in the building on the second floor, from which the aricing electrical current started the fire. The trial judge, at the conclusion of plaintiffs' case, on motion by defendant, granted a compulsory non suit. Later, after argument before the court en banc, the plaintiffs' rule to remove judgment of compulsory non suit was discharged. This appeal followed.

We must be guided in our review by the rule that: 'In considering the appeal from the refusal of the court below to take off the non suit, appellant must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in his favor (citing cases).' Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966).

The factual determination to be resolved was who or what caused the fire, Mr. DeFrank's contention being that the blasting of the appellee in its coal mining operation caused the building to shake and short circuit the terminal box. He testified that at about 10:30 that morning, while sorting and grading rags in the performance of his work, a blast was set off that shook the building. At the time the fire broke out, however, no one was in the two story building, Mr. DeFrank having left that building to go to the one story building housing the boiler room for the purpose of preparing the furnace for the weekend. He testified that: 'I went downstairs. I checked all my doors which takes about five minutes to do it slowly and safely. So I came out of the big building. I looked at my watch again about quarter of one. And between the two buildings there's a driveway, and I got almost a little over the half-way mark,--that was about quarter of one--they put this other shot which vibrated me and I almost dropped the clock out of my hand, and I almost went over. So I kept going down. It took me a little time to straighten up so I took a little time and I went down into my laundry. I put thirteen shovels of buckwheat coal into my hopper, that is for the furnace. After I got done with that I came out. I grabbed the barrel, and I had my big laundry door open which leads into the laundry. And I seen smoke coming over the building.' He further related that upon seeing the smoke, he looked up in the window and saw 'red, green, blue flashes of every description'.

The parties at trial stipulated: '* * * that in accordance with practice and custom the defendant corporation, within two weeks following the date of this fire, which was on February 24, 1962, the defendant corporation furnished the City of Hazleton with a copy of the company's records showing that at its Crystal Ridge stripping operation in Hazleton two shorts were fired, one at 12:30 p.m. and one at 12:32 p.m.; that this information is taken from and corresponds with the original records of the defendant corporation.' The record does not show, although in the opinion of the court en banc there is the statement, that the blasting conducted by the defendant in connection with its strip mining of anthracite coal was on a tract of land located approximately 800 feet West of the appellant's property.

Appellants, among other witnesses called to prove liability called as experts, Stogdell Lesh, graduate electrical engineer engaged in electrical work for 38 years, and William B. Murphy, a graduate of the Pennsylvania State University, with a degree of Master of Science in Electrical Engineering. A Hypothetical question was propounded to each of the expert witnesses, and after much time consumed, questions and answers and objections made, the trial judge, on motion of defense counsel, struck from the record the testimony of the witness, Mr. Lesh. A similar motion to strike the testimony or Mr. Murphy was made by defense counsel and was overruled by the trial judge but his testimony was, however, later determined by the judge to be insufficient and not meeting the required standards of proper expert testimony. The judge, relying on our case of Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961), held that the testimony was uncertain, equivocal and...