no merit to defendant’s allegation that trial court erred in refusing to instruct on res ipsa loquitur, where plaintiffs proceeded on an alternate theory of circumstantial evidence of negligence and won, and where the facts of plaintiffs’ case did not establish a prima facie res ipsa loquitur case
How later courts described this case
- no merit to defendant’s allegation that trial court erred in refusing to instruct on res ipsa loquitur, where plaintiffs proceeded on an alternate theory of circumstantial evidence of negligence and won, and where the facts of plaintiffs’ case did not establish a prima facie res ipsa loquitur case
- applying Section 195 of the Restatement (Second) of Contracts to determine whether tariffs limitation of liability clause is exculpatory
Written by the judges who cited it.
The opinion
CERCONE, Judge,
concurring and dissenting:
I agree with the majority’s resolution of the first two issues raised by appellant: that is, 1.) finding Rule 17 of appellant’s tariff void as against public policy and 2.) concluding that the trial court did not err in refusing to instruct the jury on Section 328(d) of the Restatement (Second of Torts), which deals with res ipsa loquitur. With regard to the third issue, the admission into evidence of certain statements allegedly made by unidentified employees of appellant, I agree that the trial court erred in admitting these statements as nonhearsay, but I would find that the error was of no consequence since the statements could properly have been admitted as within the vicarious admissions exception to the hearsay rule. 1 Accordingly, I would affirm the lower court and permit the jury verdicts in favor of appellees to stand.
Like President Judge Spaeth, I believe that Pennsylvania law regarding the applicable standard for the admission of *551 vicarious admissions of employees is unclear, and the issue is an open one. Rather than subscribe, as the majority has done, to the traditional, restricted rule which requires the employee to have express or implied authority to make the statements, I would apply the less restricted rule articulated in Carswell v. Southeastern Pennsylvania Transportation Authority, 259 Pa.Super.Ct. 167 , 393 A.2d 770 (1978), that an employee’s statement is admissible against the employer if the statement was made before the termination of the employment, concerned a matter within the scope of the employment and was accompanied by sufficient indicia of reliability.
Applying the Carswell standard to this case, I would find that the evidence, direct and circumstantial, 2 indicates that each element of this less restricted rule has been met. The record reveals that the first statement was made to Fire Chief Henry Dudek. It is uncontradicted that Chief Dudek, upon experiencing water pressure problems at the scene of the fire, placed a call to West Penn Water Company and requested that someone be sent to the scene of the fire. The testimony of two of appellant’s witnesses who were employees established that their presence at the fire was not in their usual responsibility, and that but for the radio call, they would not have been on the scene. The unidentified declarant apparently sought out Chief Dudek, the only firefighter dressed completely in white, to offer an explanation as to the reason for the low water pressure. 3 The reasonable inferences, then, are 1.) that the person to whom Chief Dudek spoke was an employee of the Water Company summoned to the fire by the Chief’s request for help, and 2.) that this first declarant spoke about a matter within the *552 scope of his employment and before the termination of his employment.
The second statement testified to by Joseph Loy as having been spoken to him by a “little old Italian man” consisted of words to the effect that “I guess you think I played a dirty trick on you. We weren’t allowed to work overtime.” The record reveals that Mr. Loy was familiar with this gentleman, although he did not know his name. Loy’s testimony was that he had seen the man in one of the Water Company trucks on the morning of the fire and on prior occasions, had sold him tires previously, and that on the morning after the fire, the Water Company truck, with the declarant as part of the crew, returned to the hydrant that had been the subject of the work crew the day before. These facts serve to .insure that the declarant uttered a statement within the scope of his employment and before termination of it.
Moreover, this case does not present us with the problem of the Carswell case in which this court found there was no showing that the declarants spoke with firsthand knowledge or that their statements were reliable. Herein, both men were at the scene of the fire only because of their employment with the Water Company and their familiarity with the water line in question: the first declarant responded to the Fire Chief’s radio call and relayed to the Chief what he perceived as the reason for the low water pressure based upon his earlier work on the line; the second declarant had also been involved in the repair of the water line and was present as part of the work crew. Given these facts, the reliability of the statements is not to be questioned. Having thus met each of the components of the Carswell rule, the statements were properly admitted under the vicarious admissions exception to the hearsay rule, and I would affirm the lower court.
. See Commonwealth v. Whitehouse, 222 Pa.Super. 127 , 292 A.2d 469 (1972) (where judgment of lower court is correct, it can be affirmed *551 on appeal regardless of the rationale employed by the lower court to sustain its action).
. Proving agency is the initial step under the rule, and this may be done circumstantially. See Wigmore on Evidence § 1078 at 176 and McCormick on Evidence § 267 at 641-42 (Cleary ed. 1972).
. In addition, the testimony of Chief Dudek reveals that the man identified himself as an employee of the water company, although this *552 self-serving statement by the declarant is not sufficient to prove agency. See, 4 Wigmore on Evidence § 1078 at 176.