Westinghouse Elec. Corp. v. Dolly Madison Leasing & Furniture Corp.

• Decision Date: 16 April 1975
• Docket Number: No. 74-504,74-504
• Citation: 71 O.O.2d 85,42 Ohio St.2d 122,326 N.E.2d 651
• Parties: , 71 O.O.2d 85 WESTINGHOUSE ELECTRIC CORP. et al., Appellants, v. DOLLY MADISON LEASING & FURNITURE CORP., Appellee.
• Court: Ohio Supreme Court

Page 122

42 Ohio St.2d 122

326 N.E.2d 651, 71 O.O.2d 85

WESTINGHOUSE ELECTRIC CORP. et al., Appellants, v. DOLLY MADISON LEASING & FURNITURE CORP., Appellee.

No. 74-504.

Supreme Court of Ohio.

April 16, 1975.

Syllabus by the Court

1. The hearsay rule includes within its scope written summaries of interviews conducted during an official fire investigation and it is error to admit such statements in evidence, even though contained in an official report, where the statements are not within an exception to the hearsay rule.

2. A motion picture film is admissible, for the purpose of impeachment of the testimony of an expert witness upon the laying of a proper foundation, where the witness had seen the film, and acquiesced in its presentation to the public by officials under his control, and where the film depicts an event inconsistent with the testimony of the witness.

This case arises out of a fire which occurred on September 23, 1968, in a warehouse in Evendale, Ohio. The fire originated in a make-shift 4 8 foot wooden closet with no ceiling and an unlocked door which, when closed, left a gap of several inches from the floor. The closet contained broken furniture, a lawn mower, debris and cartons filled with rags and jars, and was located in a storage area leased by the defendant, Dolly Madison, under the trade style, American Furniture Leasing. The fire spread to an adjoining part of the warehouse occupied by Westinghouse, one of the plaintiffs herein, and destroyed property owned by Westinghouse, having a market value in excess of $2 million before it was extinguished several hours later. MFB Mutual Insurance Company and Insurance Company of North America, the Westinghouse insurer, paid Westinghouse for this loss according to their policies of insurance and became subrogated to Westinghouse's claim. Plaintiffs claim that the fire was caused by careless smoking of an employee of defendant.

The fire department had advised that 'no smoking signs' be posted in defendant's storage area, under an ordinance that there was to be no smoking in any warehouse, except in designated areas, and these signs were posted in the storage area on the day of the fire. Two witnesses testified that defendant's warehouse manager, Willie Jones, was smoking a cigarette in the storage area within several feet of the closet between 1:00 and 1:30 in the afternoon of September 23. Jones and two employees, the two witnesses at trial, had gone to the area with a customer to select a rug from among those stored in the area. The two employees helped carry the rug out to the customer's car and then left to make deliveries. Jones testified that he had no recollection of the events of that day, except that he did not smoke in the warehouse that day.

Shortly before 3:00 p. m., two employees of a linen supply firm entered the warehouse to make a pickup. Discovering no one in the warehouse, they went to the rear of the building and discovered the fire. Flames were spurting up above the door to the closet. One of the men attempted to put out the fire with fire extinguishers, but the fire burned even faster, and the men fled from the building when the fire spread to mattresses stacked near the closet. The fire department arrived a few minutes later, but was unable to control the flames until after they had spread to the area of the warehouse leased by Westinghouse.

The primary issue at trial was the cause of the fire, and specifically whether the fire was caused, as plaintiffs claimed, by the careless smoking of defendant's employee, Jones. Plaintiffs' evidence indicated that Jones was smoking near the point of origin of the fire, that it was likely that his cigarette burnt down in the time he was there, that the time interval was compatible with that of fires ignited by cigarettes, that partially burnt brown paper found near the point of origin could be ignited by a dropped cigarette, and that a carelessly discarded cigarette could have entered the closet either above or below the unlocked door. The fire chief in charge of investigation of the fire state his opinion that the probable cause of the fire was careless smoking and the assistant fire chief and a state fire marshal testified to their examination of physical evidence which tended to exclude other possible causes such as arson or spontaneous combustion. An expert witness for plaintiffs also testified that the probable cause of the fire was careless smoking.

Defendant sought to suggest that there were likely causes of the fire other than careless smoking. On cross-examination, plaintiffs' witnesses conceded that causes such as spontaneous combustion and arson could not be wholly eliminated, and that their conclusion of careless smoking as the probable cause relied largely on the elimination of such other causes, since there was no direct evidence that a cigarette had started the fire. To the same effect, defendant called as an expert witness the chief of the Cincinnati arson squad, who testified that it was almost impossible for a cigarette dropped on paper to set it on fire, and that the investigation of the fire had not sufficiently eliminated other possible causes of the fire, such as arson, electrical malfunction, spontaneous combustion, or a spark from a passing locomotive. Plaintiffs, on cross-examination, introduced, over objection, a film produced in cooperation with the Cincinnati fire department and kept in the department's files, which showed a cigarette being dropped on a piece of paper and setting it on fire. On redirect, the witness stated that this scene had been staged by lighting the paper with a match, and that he remained of the opinion that it was almost impossible for a dropped cigarette to set paper on fire.

Over objection as to hearsay, the court admitted in evidence the fire department investigation reports on the fire, including reports of statements made during the investigation by witnesses who had appeared at trial, but the court ordered the exclusion of reports of statements by nonwitnesses.

The jury returned a verdict for plaintiffs in the stipulated amount of $1,219,969.56.

The Court of Appeals reversed, and directed the entry of final judgment for defendant. The court held that plaintiffs had a duty to exclude the effectiveness of other causes of the fire, citing this court's decision in Gedra v. Dallmer Co. (1950), 153 Ohio St. 258, 91 N.E.2d 256, and stated 'that the efforts of the appellees (plaintiffs) to exclude or eliminate such other causes fell short of the mark.' The appellate court also found the admission of the motion picture film and the investigation reports to be error and an abuse of discretion.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Dinsmore, Shohl, Coates & Deupree, Smith H. Tyler, Jr., Thomas S. Calder, Cincinnati, Robins, Davis & Lyons, James L. Fetterly and Robert M. Wattson, Minneapolis, Minn., for appellants.

McCaslin, Imbus & McCaslin, C. J. DeMichelis, Lindhorst & Dreidame and Robert F. Dreidame, Cincinnati, for appellee.

STERN, Justice.

I

The primary issue is whether defendant was entitled to a directed verdict on the ground that there was insufficient evidence from which the jury could infer that careless smoking was the cause of the fire. The only evidence of the cause of the fire was circumstantial evidence and expert testimony. Defendant argues that careless smoking was only one of several equally probable causes, and that plaintiffs failed to effectively eliminate those causes.

This argument relies largely upon this court's decision in Gedra v. Dallmer Co., supra, 153 Ohio St. 258, 91 N.E.2d 256. The syllabus of that case provides:

'1. In a negligence action, it is essential for recovery that plaintiff prove by a preponderance of evidence not only that defendant was negligent but also that defendant's negligence was a direct or proximate cause of plaintiff's injury.

'2. In a negligence action, it is not sufficient for plaintiff to prove that the negligence of defendant might have caused an injury to plaintiff but, if the injury complained of might well have resulted from any one of several causes, it is incumbent upon plaintiff to produce evidence which will exclude the effectiveness of those causes for which defendant is not legally responsible.

'3. In such an action, if the cause of an injury to a plaintiff may be as reasonably attributed to an act for which defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant.'

A similar rule was applied in other cases: Gerich v. Republic Steel Corp. (1950), 153 Ohio St. 463, 92 N.E.2d 393; Landon v. Lee Motors (1954), 161 Ohio St. 82, 118 N.E.2d 147; Burens v. Indus. Comm. (1955), 162 Ohio St. 549, 124 N.E.2d 724; Brecount v. Procter & Gamble Co. (1957), 166 Ohio St. 477, 144 N.E.2d 189; McKee v. Electric Auto-Lite Co. (1958), 168 Ohio St. 77, 151 N.E.2d 540; Hoppe v. Indus. Comm. (1940), 137 Ohio St. 367, 30 N.E.2d 703.

The logic of those cases is that a jury verdict may not be based upon mere speculation or conjecture. In each case, the plaintiff's evidence was held to be either incomplete or so inconclusive that no inference could reasonably be drawn which would support plaintiff's claim. Thus, it was held that one could not reasonably infer, solely from the fact that a man collapsed at work, that his death was cased by preexisting heart ailment, where no evidence was offered of such ailment (Gerich v. Republic Steel Corp. supra); that an injury to one eye caused glaucoma in both eyes, since the medical cause of glaucoma was unknown (Brecount v. Procter & Gamble Co., supra); or that a heart attack was induced by injuries to the head, where it was impossible to determine that the injuries were not caused by the fall which resulted from the heart attack (Burens v. Indus....