Appeal, No. 95, Jan. T., 1959, from order of Court of Common Pleas of Delaware County, Sept. T., 1957, No. 128, in case of David Smith et al. v. Bell Telephone Company of Pennsylvania et al. Judgment reversed; reargument refused August 17, 1959. Trespass. Before BRETHERICK, J. Defendant's motion for compulsory non-suit granted; plaintiff's motion to remove non-suit dismissed and order entered. Plaintiff appealed.
Jack Brian, with him Berman, Richard & Brian, for appellants.
Edward H. Bryant, Jr., with him Lutz, Fronefield, Warner & Bryant, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
This case is here on plaintiff's appeal from the refusal of the court below to take off a compulsory non-suit.
In 1948 defendant, Counties Contracting and Construction Company, under contract to defendant, Bell Telephone Company of Pennsylvania, constructed an underground conduit to carry telephone lines along Baltimore Avenue in Lansdowne, Pennsylvania. In 1950 after an inspection which revealed no structural or other defects, plaintiff purchased a house on Baltimore Avenue. Sometime prior to March 25, 1951, he discovered seepage in his basement, which proved to be sewage backed up from the sewer lateral running from his home to the street. He made efforts several times that summer, with varying degrees of success, to find the cause and cure the trouble. These efforts continued from time to time until September 1956, when, in desperation, plaintiff and a friend tunnelled under the sidewalk, found that the telephone conduit had crushed the sewer lateral and was blocking it. Plaintiff brought suit September 19, 1957 and, after presenting evidence, met with a compulsory non-suit which the court later refused to take off. The refusal was based on two grounds:
(1) That plaintiff had not made out a prima facie case, and (2) that the action was barred by the statute of limitations.
In support of the judgment of non-suit the court below applied the standard that where plaintiff's case is based on circumstantial evidence and inferences to be drawn therefrom, such evidence must be so conclusive as to exclude any other reasonable inference inconsistent therewith, and that plaintiff did not produce such evidence. Indeed he did not, but did he have to?
A variety of formulae for determining the sufficiency of circumstantial evidence to sustain a verdict may be
found, including: "such as to satisfy reasonable and well balanced minds". Connor v. Hawk, 387 Pa. 480, 483, 128 A.2d 566 (1957); Rowles v. Evanuik, 350 Pa. 64, 68, 38 A.2d 255 (1944); Ferry v. P.R.T. Co., 232 Pa. 403, 406, 81 Atl. 426 (1911). "[the facts and inferences] must so preponderate in favor of the basic proposition he is seeking to establish as to exclude any equally well supported belief in any inconsistent proposition", Wagner v. Somerset County Memorial Park, 372 Pa. 338, 342, 93 A.2d 440 (1953); Polk v. Steel Workers Organizing Com., 360 Pa. 631, 634, 62 A.2d 850 (1949). Although some of the formulations appear to be mutually inconsistent, they have sometimes been used together. See Stauffer v. Railway Express Agency, 355 Pa. 24, 47 A.2d 817 (1946). The formula that "the circumstances must be so strong as to preclude the possibility of injury in any other way and provide as the only reasonable inference the conclusion plaintiff advances" is not a correct statement of the rule to be applied by the judge on deciding a motion for ...