Appeal, No. 141, Oct. T., 1953, from judgment of Municipal Court of Philadelphia County, Feb. T., 1952, No. 357, in case of Joseph A. Allen v. Insurance Company of North America.
Ralph B. Umsted, for appellant.
C. L. Cushmore, Jr., with him Thomas Raeburn White, Jr., and White, Williams & Scott, for appellee.
Before Hirt, Ross, Bunther, Wright, Woodside and Ervin, JJ.
[175 Pa. Super. 281 Page 282]
OPINION BY WRIGHT, J., April 15, 1954.
The Insurance Company of North America issued to Joseph A. Allen two policies of fire insurance, each with an Extended Coverage Endorsement including,
[175 Pa. Super. 281 Page 283]
inter alia, the peril of "explosion." Allen instituted an action in assumpsit on the theory that his property, both real and personal, had been damaged by an explosion. The case was tried by a Judge of the Municipal Court without a jury, and the finding of the trial judge was for the defendant. Plaintiff has appealed from the refusal of his motions for judgment notwithstanding the finding, and for a new trial.
On December 28, 1951, a delivery of fuel oil was being made at appellant's residence. The storage tank was located inside the house in a corner of the basement, and had been in use for thirteen years. It was four and one-half feet high, oval in shape, and had a capacity of 275 gallons. The intake pipe was against the outside wall near the door of the basement, and accessible from the driveway. The delivery man placed the hose from the truck tank in the intake pipe, set the meter, and turned the lever releasing the oil. He testified that, while he was standing near his truck with the motor running, he noticed the curtains on the basement door move, and saw oil seeping out at the bottom of the door. He shut off the hose and went into the basement where he foun oil coming from the storage tank and spreading over the floor. Appellant testified that he had looked at the tank that morning and had not noticed any seepage or odor. He had observed from the gauge that the tank was less than one-quarter full. Appellant further testified that he carefully examined the tank after it was removed. He found a "large gash" along the seam near the top of the tank "where the pieces of metal had been welded together". Appellant subsequently referred to the separation in the tank as an "aperture". On cross-examination he called it a "split". The separation was eighteen inches long and an inch and a quarter wide at its widest point. The metal at the edges of the separation was perfectly clean with no evidence of
[175 Pa. Super. 281 Page 284]
rust. The edges themselves were somewhat fluted or undulating. Appellant's wife referred to the edges as wavy or ruffled. Appellee offered no evidence.
Appellant's principal contention is that this court "should enter judgment for the plaintiff notwithstanding the finding". In support of this proposition he cites Berkowitz v. Palrube Mfg. Co., 68 Pa. Superior Ct. 559, and Hoffman v. Hockland Brothers, 75 Pa. Superior Ct. 595. In those cases we held that a judge could not indulge in an unwarranted disbelief of uncontradicted evidence. In the case at bar, however, the evidence presented did not oblige the trial judge to make finding for the plaintiff. His action was not based upon a ...