employees committed outside the scope of their employment. Troiano argues that, while an admission of a negligent act might come within the "possible civil liability" exception, Faulds only stated that they had been smoking, not that they had been carelessly smoking. We hold that if Faulds' statement is admitted, and if the trial judge believes it, then that statement plus the testimony of the fire investigator, coupled with the other evidence we have summarized, make out a case of negligence. By his own testimony he knew that the warehouse was burning when he was taken for questioning. It was burned extensively before the fire could be controlled. The judge thus found that there was no proof that negligence on the part of the employees started the fire.
Such a declaration is one of a series of traditional exceptions to the hearsay rule, see,. If it is found that Faulds was unavailable, then his statement should be admitted as a declaration against interest. Sottnek., 2 Cir., 258.2d 85 (1958 cert. THE court: So that your opinion that this was caused by careless smoking is reached by eliminating other possible causes? When asked if he could "state definitely what started that particular fire?" he replied, "No, you could not,." Ibid. Kansas City Public Service., 241. Therefore, we felt that this was an act of someone who had been in the premises, either intentionally, deliberately, or through break through, or with all due course.
Transit System, Inc., 114.S.App. He stated that he did not think anybody had been smoking. In the fourth deposition Benito Troiano, head of Troiano, stated that he knew his employees smoked on the job, and that he had not stopped them. Email: You must enter at least 10 characters. We recognize that the matter of prevention, detection and control of fires is a major governmental concern. He is consequently unavailable for cross examination, and the factors that normally go into the determination of a witness' credibility are completely withheld from the trier of facts. In his deposition taken January 21, 1966, some two and a half years after the fire, Faulds stated that he did not know if the people had been smoking the night of the fire. Because of this finding, he did not rule on the theory of liability of Troiano for its employees, specifically stating that he did not need to reach that point. Annot., Cause of Fire Opinion Evidence,.L.R.2d 230, 5 (1963). 282, 291, 292.2d 775, 784, cert.
On remand, should the court find that careless smoking did cause the fire, the issue of Troiano's alleged negligence in giving Whitaker a key and in failing adequately, according to appellants, to prevent fires would be before the court. In examining Faulds' statement it is apparent that two of the criteria for admissibility are easily met: the subject matter was one with which Faulds was "personally cognizant and no conceivable "motive to falsify" is evident. The cases cite Brownhill for one of four related formulations: (1) expert opinion evidence is discredited where it is "a guess or conjecture in the form of a conclusion from basic facts that do not tend toward that conclusion and. From the everbuilding disarray of directionless discourse these rulings constitute "derelict s on the waters of the law created basically by courts which find accuracy in procedure an uninteresting quality. He ruled that, although the fire investigator's conclusions were good enough for Fire Department purposes, the evidence was not sufficient to "justify the Court in inferring that by a fair preponderance of the evidence it has been established. Here Faulds' statement is an important link in providing a basis for concluding that Faulds and the other nighttime visitors to the warehouse were responsible for starting the fire; the possibility of civil liability against him arising from the statement is thus evident. His admission that he was smoking in the warehouse a few hours before the fire started can hardly be viewed as an innocent remark irrelevant to the fire investigator's concern over the cause of the fire. Gichner also introduced four depositions.
There a fire was discovered in defendant's warehouse. Troiano cites Brownhill. The first two were based on negligence: (1) in giving a key to Whitaker, and (2) in allowing smoking on the premises and failing to take steps to prevent fires even though flammable material was stored there. They alleged that the fire was started by negligent smoking on the part of Whitaker and the others in the warehouse that night. At trial the court asked plaintiffs' attorney whether Faulds had been "confronted with the statement to the fire investigator at the deposition." The attorney replied, "No, Your Honor; it was not available to counsel, it was in the Fire Department's files.". (In his deposition he admitted that "when the police woke us up it was burning. Since that time, however, courts have dissipated the effectiveness of this time-proven guarantee of the trustworthiness of this type of evidence by dissolving on an ad hoc basis the individual elements necessary to bring testimony within the exception.
The judge did not indicate disbelief of the particulars of the fire investigator's testimony his ruling appears to be more on the issue of the sufficiency of circumstantial evidence of this type. 1244, 252.W.2d 88, 91 (1952). Some courts cling, in panic, to the past while others view all tradition and the doctrine of stare decisis with aggressive hostility. Each side here relies primarily on a state case. We also recognize that when smoking causes a fire it is highly likely that the offending cigarette butt or ash will dissolve in smoke in the ensuing conflagration. The requirements for a statement coming within this exception were clearly stated in Johnson. Accordingly, the case is remanded for a determination whether Faulds was unavailable to testify at trial. THE witness: That is correct, sir. Kivlin adopt a test for expert opinion testimony which discredits such testimony where the expert cannot speak in terms of probability; where, in other words, his opinion is merely a guess based on possibilities. . Here the relevance of smoking to making out a basis for liability is plain, for Judge Holtzoff's opinion was based in part on the lack of evidence of smoking at all.
He did not find any direct evidence to that effect, because of the almost total destruction caused by the fire. I cannot subscribe to the majority action which puts a label of admissible evidence upon such a statement on the ludicrous conclusion that this laborer's employment constituted such a pecuniary or financial interest as to guarantee the accuracy of this statement. In his statement taken there at 9:40 the same morning he described having been out drinking and going into the warehouse. It is clear, however, that he was both absent and unavailable. As he was taken to police headquarters he saw smoke coming from the warehouse.The statement was obviously hearsay, and the question before us is whether it can be admitted under an exception to the hearsay rule as a declaration against interest. We agree with the formulations expressed in the post- Brownhill cases. The plaintiffs introduced the testimony of the district fire chief, a man "of unquestioned expert qualifications.E.2d at 540, who stated that he was positive the fire started in the rear of the car and who concluded that it was caused by careless smoking. We explain below why, in a case of this type, such evidence is reliable and important. that it was caused by careless smoking; he reached his conclusion even though no direct evidence of smoking (such as cigarette butts) was present.
Antonio troiano tile marble - Antonio Troiano548-549; compare, koninklijke Luchtvaart Maatschappij. Thus Brownhill has been cited 14 times on this point, most of the cases involving the sufficiency of medical or other expert testimony in tracing the cause of an illness or injury (none involved the same type of factual. 320, 158.2d 325 (1946 Martin. Further, we think that, where a fire investigator identifies the cause of a fire in terms of probabilities, as opposed to mere possibilities, by eliminating all potential causes of the fire but one, that testimony is not only. Preciseness in the law of evidence has lost its equilibrium because of the classic conflict between competing claims of continuity and change in the law.
Troiano Antonio Tile: Antonio troiano tile marbleThe traditional "declaration against interest" exception to the hearsay rule was limited to declarations made by a deceased person against a pecuniary or proprietary interest, spontaneously made, and relating to a present, immediate interest not contingent upon the happening of some remote event. Indeed, an effort was made to make him a defendant in this case. The record shows that diligent efforts were made to find him and it is quite apparent that he was not within the jurisdiction of the court. The, johnson court went on to detail a fourth requirement that the declarant be unavailable to testify at trial. Thus even in Brownhill the elimination of possibilities approach was recognized. Gichner and the insurance company sued Troiano and Whitaker. . We find that the third requirement is also met: Faulds' statement to the fire investigator was against his interest within the meaning of the exception. Two hours later the garage was in flames, the car being burned along with its occupant. There was no furnace or heater or element that would have caused sufficient heat to have ignited this material. In the meanwhile, however, the judicial migraine is compounded as judges redouble their energies (while forgetting the objective of certainty in the law) to distort and misshape established rules in order to reach a result in a particular. THE witness: The opinion as to this particular fire? Such testimony has been admitted in federal courts, see,. Thus direct evidence of smoking will be hard for the fire investigators to find, and they will have to form their opinions by way of exclusion of other possibilities. (It is noted that this is the spot where Faulds' statement indicates the group was smoking.) The heart of his testimony as to the cause of the fire was as follows: THE witness: * * * The fire was. The fire investigator further testified that he found flammable material wrapping or packing material made of both wood and pasteboard in the Troiano part of the warehouse. Without evaluating the merits of either philosophy but appraising court rulings in this field of the law of evidence, it is obvious that the gravamen of the exercise results in a long series of inconsistent, conflicting and confusing opinions predicated. Troiano's liability was predicated on three grounds. History, suggestions, thank you for your comments and suggestions. At the close of plaintiffs' case Judge Holtzoff, sitting without a jury, granted judgment for the defendants. The weight of authority is that the causes of a fire are proper matter for expert opinion. The third ground was based on breach of contract, in that Troiano's lease stated that Troiano "will repair or replace any other damage caused to the demised premises by Troiano's negligence or the negligence of his servants or em ployees * * *." (Emphasis added.). 2d 136 (1961 Wabisky. In the circumstances of this case, the admission by Faulds that he had been smoking shortly before the fire does not seem so remote or tenuous that it was unlikely to entail his possible civil liability. Rather, Troiano challenges such testimony when the expert's conclusion is arrived at circumstantially through a process of elimination. On appeal Gichner raises two points: (1) the trial judge should have considered the statement by Faulds, and (2) the testimony of the fire investigator, with or without Faulds' statement, was sufficient to make out a case. G., Central Railroad. The court noted that such declarations are admissible when they "concern a matter of which the declarant was personally cognizant, were against his pecuniary and proprietary interest, and were made with no probable motive to falsify.". Mckelvey, ON evidence (4th. Mccormick, supra, 254,. A statement is against pecuniary and proprietary interest when it threatens the loss of employment, or reduces the chances for future employment, or entails possible civil liability. However, if Faulds' statement is not admissible, or is admitted and not believed, we do not decide whether the fire investigator's testimony alone makes out a sufficient case of negligence to put the defendant to proof. We will try our best to improve ourselves with your support. In Part I of this opinion we ordered a remand to determine whether Faulds was unavailable, and thus whether his statement was admissible. THE court: On what do you base that opinion?
Each such legal exercise reduces the stability of principles of evidence to a whiter shade of pale and reveals the void of logic at the core of such procedure. This was the absolute rule in England and generally throughout the United States into the 1930's. He stated that by examining the char patterns on the rafter beams he pinpointed the origin of the fire to the Troiano part of the warehouse. The third deposition was that of an employee of a neighboring warehouse who stated that he had seen Troiano employees drinking and smoking near the warehouse premises in the past. We think that the judge did not give this type of evidence sufficient credit. Gichner claimed a loss of 56,000, of which 20,000 was covered by insurance. 2d 834, 835, 205.2d 1037 (1949). .
The tragic result of my colleagues' ruling is a gross enlargement of the part at the expense of the whole. He testified that within an hour of the first alarm he entered the Gichner warehouse and began an investigation of the fire's cause. However, it may be that through diligent search he could have been located and possibly brought to testify at trial. Often the plaintiff in a fire case, at least where smoking is the cause, can hardly be expected to do more than present expert testimony of this sort as to the fire's cause, and support that testimony by other. He stated: * * I guess we got there about 3:00 AM and John Whitaker had a key so we went in the back door and sat around talking and smoking inside the front door. Faulds did not testify at the trial, and Gichner offered his statement into evidence.
430, 432, 415.2d 145, 147 (1966 Neely. While it is currently the vogue, as the majority states, to admit "declarations against interest" when "a witness is unavailable to testify this evidentiary rule is of very recent origin. Further, even though Troiano did not have a rule against smoking on the premises, Fauld's admission that he had been there after hours, for a purpose unrelated to his employment, and while there did something which may have caused the. The men trained in this science and exposed through experience to the problem are called upon to execute their jobs with exactitude. His burden might well be impossible if his experts also had to discover some direct evidence of a cigarette butt or ash; and placing such a burden on him would be unnecessarily harsh in view of the reliability.
132, 142,.E.2d 191, 197 (1940 upholding the testimony of a fire chief who stated the cause of the fire to be spontaneous ignition. Favorite, my Favorite, products Stone Suppliers, my Favorite. Appellants, plaintiffs below, owned a warehouse, part of which they leased to the corporate appellee, Antonio Troiano Tile Marble., Inc. Their conclusion that the fire was caused by careless smoking was reached by a process of elimination of other possible causes. There were no materials that would have caused a spark or an arc at that point. The court held: "The entry of the verdict for the defendant was right. Tamm, Circuit Judge (dissenting in part I dissent from so much of Part I of the majority opinion as rules that the statement of Faulds to the fire marshall should have been admitted in evidence. The majority, then, admit the statement of an off-duty laborer, made completely outside the scope of his employment and concerning conduct completely unrelated to the nature, scope, purpose or bounds of that employment, concerning an occurrence when.
We appreciate your time and valuable feedback in helping us make StoneContact better! Great Atlantic Pacific Tea., 3 Ariz. Q Which portion of those premises, if you know? The Fire Department received a call that the warehouse was burning. I think we left about somewhere around 3:45. A The Troiano property. Bekins Van Storage., 33 Cal. Further, the reliability of such a statement, made immediately after the events, seems greater than that of a deposition taken two and a half years later.
Further, he stated that there were no fire extinguishers kept on the premises, and that mastic (a material which the fire investigator testified was flammable) was stored there in cans. Savage Truck Line, Inc.,.D.C., 121. Transit System, Inc., supra. The fire investigator, a lieutenant employed by the Fire Department for 26 years, was accepted by the trial court as an expert on determining the causes of fire. The employee has disappeared. Clearly, the necessity for resorting to hearsay is just as great when the declarant is outside the jurisdiction or cannot be found after a diligent search as when he is dead.