Royal Indemnity Company v. City of Erie

• Decision Date: 21 March 1974
• Docket Number: Civ. A. No. 18-71 Erie.
• Citation: 372 F. Supp. 1137
• Parties: ROYAL INDEMNITY COMPANY et al. v. The CITY OF ERIE.
• Court: U.S. District Court — Eastern District of Pennsylvania

372 F. Supp. 1137

ROYAL INDEMNITY COMPANY et al. v. The CITY OF ERIE.

Civ. A. No. 18-71 Erie.

United States District Court, W. D. Pennsylvania.

March 21, 1974.

Andrew J. Conner, Erie, Pa., for plaintiffs.

Irving O. Murphy, Erie, Pa., for defendant.

OPINION

KNOX, District Judge.

In the early morning hours of July 23, 1970, a large fire occurred in the City of Erie, a third-class city under the laws of Pennsylvania, in which a large warehouse and commercial building known as the Schultz Building at 212 East Eighteenth Street, Erie, Pennsylvania, was totally destroyed, resulting in claimed losses to building, contents, and for business interruption of approximately $1,400,000. The building was owned by a realty corporation known as 212 Realty Company. The business operated on the premises was owned by the A. F. Schultz Company, a related corporation, which suffered loss of the contents and interruption of its business. The plaintiffs are insurance companies which insured these corporate entities against loss by fire.

The fire had originally started in a building across the street on the south side of East Eighteenth Street known as the Hoffman Building. The blaze there was being actively fought by several municipal fire companies when the fire suddenly "erupted" and with great speed engulfed the whole building and immediately thereafter spread across the street to the Schultz Building on the north side of the street. The evidence indicates that strenuous efforts by the fire department were fruitless in attempting to stop this sudden burst of flame which jumped across the street. As a matter of fact, the fire hoses were burned and several pieces of fire equipment were destroyed or seriously damaged in this blaze and firemen barely escaped with their lives. The Schultz Building was protected by a fully operating sprinkler system and certain windows had been blocked up but nevertheless these precautions were inadequate to prevent the fire from jumping the street and destroying it. The suddenness and overwhelming character of the "eruption" were such as to give rise to a well founded suspicion of arson, but no arsonist has ever been brought to book.

The Hoffman Building where the fire originally started was a three-story wooden frame building approximately 40 feet in height. It was approximately 75 years old and, prior to 1967, it had been used as a storage facility for surplus food. In July, 1967, a fire occurred and subsequent to this there was an attempted arson. As a result of this, the insurance on the building was cancelled and the building remained uninsured and unoccupied except for certain motor vehicles therein from July, 1967, to July, 1970, when the fire occurred.

The plaintiffs did not contend that the City was negligent in fighting the fire. It was originally claimed that the City was negligent in not furnishing an adequate supply of water and not supplying sufficient water pressure to contain the fire but these grounds for recovery were not pressed at the trial. Instead, plaintiff relied on a claim that the Hoffman Building was unreasonably dangerous to the Schultz Building across the street, that it was a fire hazard and that the City Building Inspector should have required it to be rendered more secure or demolished it in enforcement of the Building Code of the City of Erie. It was further claimed the City should have required the removal of automobiles stored there.

After nine days of trial (including part of a day for jury selection), the jury found for the defendant. The jury further answered certain Special Interrogatories as follows:

1) "Do you find that the Hoffman Building as it existed during the period September 7, 1969 to July 23, 1970 was in an unreasonably dangerous condition as a fire hazard which made it unreasonably dangerous to the Schultz Building? Answer: No."

4) "Do you find that the presence of any automobiles, that is, so called live autos as distinguished from burned hulks, in the Hoffman Building was a proximate cause of the spread of the fire in the Hoffman Building to the Schultz Building? Answer: No."

The negative answers to these questions made it unnecessary for the jury to consider Interrogatory No. 2 as to the City's negligence in not removing the alleged hazard and No. 3 as to contributory negligence or assumption of the risk.

The plaintiffs have now moved for a new trial alleging errors in selection of the jury, errors in limiting their expert testimony, erors in excluding certain building codes and certain errors with respect to the charge of the court. We will deal with the reasons presented in order.

I. Errors with Respect to Selection of the Jury

The case in question was a diversity action, the plaintiffs being foreign corporations without principal places of business within Pennsylvania. Hence, since the events complained of all occurred in Pennsylvania, Pennsylvania law applied to this law suit. Plaintiffs contend that City of Erie taxpayers should have been excluded from the jury.

The Pennsylvania Statute with respect to this matter is found in 17 Purdon's Pa.Stats. 1173 (Act Apr. 16, 1840, P.L. 410) and reads as follows:

"No person shall be excluded from being a witness or juror in any suit, prosecution or proceeding in which any county, city, incorporated district, borough or township, is a party, or is interested, by reason of such person being, or having been an officer, rated citizen or inhabitant in such county, city, district, borough or township, or owning assessed or taxable property, or being liable to the assessment or payment of any tax therein."

In Patterson Water Co. v. Mifflin Borough, 69 Pa.Super. 441 (1918), the citizens of the defendant borough were held to be qualified as jurors in a suit against the borough. To the same effect is Romig v. Allentown, 2 Leh. 277 (1905). See also Comm. v. Delamater, 145 Pa. 210, 22 A. 1098 (1891) where the court said:

"There are cases constantly being tried, of a quasi public nature, in which jurors, as citizens and taxpayers, are interested to some extent. If such interest would disqualify a juror, cases might arise where an offender could not be tried in any county of the commonwealth, as, for instance, an indictment for the embezzlement of state funds."

The cases on this subject are collected in 18 A.L.R.2d 708 which annotation indicates a split of authority among the various states. Pennsylvania is listed as following the rule of no disqualification. There has been little litigation in Pennsylvania of this question, probably because of the statute above cited. We have found no controlling federal authority. We therefore hold that status as a citizen or taxpayer of a defendant municipality in Pennsylvania does not of itself disqualify a juror in a diversity action in federal court. In addition to this, actual bias or prejudice resulting from such status must be shown to sustain a challenge for cause.

In the instant case, during the selection of the jury, the plaintiffs were permitted extensive voir dire examination to inquire of all prospective jurors who were city residents whether this would prevent them from returning a fair and just verdict based on the evidence and law in this case. These questions were addressed to all citizens of the City of Erie who appeared upon the jury panel. All answered in the negative. Plaintiffs exercised only one peremptory challenge to strike a City of Erie resident.

Under 28 U.S.C. § 1861, it is provided:

"It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose."

In the Western District of Pennsylvania, the court sits at Erie and at Pittsburgh (28 U.S.C. § 118(c)). Cases arising in the counties of Crawford, Elk, Erie, Forest, McKean, Venango or Warren are docketed at Erie and juries for this "division" of the court are chosen from these counties. Thus, in a suit against the City of Erie, jurors come from throughout the area served by the court at Erie and there is something to be said for defendant's argument that it is entitled to a random selection of jurors chosen from throughout these seven counties. It is true that a large portion of the jurors do come from Erie County and from the City of Erie. To follow plaintiff's argument in this case, we would have to rule that in all suits against the City of Erie only those jurors who resided in other counties or in parts of Erie County outside the City of Erie were eligible to serve. The court ruled against plaintiff's position in this respect at the time of selection of the jury and we adhere to that ruling.

Further, plaintiffs claim that the jury was prejudiced and biased against them as the result of comments about the case in the news media. The court had directed the parties and their officers and employees to refrain from commenting on the case before and during the trial. In addition, the jury was instructed not to view, listen to or read anything which might be carried in the news media with respect to the case and was constantly admonished about this during the trial. (pp. 27-30 of proceedings)

The jury was selected on September 5, 1973, a Wednesday, and told to report for trial the following Monday, September 10. This gap between jury selection and commencement of trial was occasioned by absence of leading defense counsel from the City which absence was excused by the court. Plaintiff claims that sometime during the interval, there was a telecast on one of the local television stations indicating that if the City lost ...