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D'ANGELO ESTATE v. ARMOR COMPANY (06/13/62)

June 13, 1962

D'ANGELO ESTATE
v.
ARMOR COMPANY, APPELLANT.



Appeal, No. 131, April T., 1961, from judgment of County Court of Allegheny County, No. 858 of 1957, in case of estate of Gildo D'Angelo, deceased. v. Armor Company. Judgment reversed.

COUNSEL

Marcus Aaron, II, with him Allen H. Berkman, Myles P. Berkman, and Glick, Berkman & Engel, for appellant.

Abert A. Fiok, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Flood

[ 198 Pa. Super. Page 285]

OPINION BY FLOOD, J.

The defendant appeals from an order of the County Court of Allegheny County, dismissing exceptions to a judgment in the sum of $850 entered for the plaintiff following trial without jury.

The action was in assumpsit, based upon the alleged negligence of the defendant, which installed a gas heater in the plaintiff's premises, in connecting the exhaust pipe from the heater to a chimney which was wholly or partially blocked. According to the plaintiff, exhaust fumes from the heater seeped through the blocked chimney and condensed on the walls and ceiling causing general dampness throughout the premises and consequent damage to the plaster, wallpaper and paint. While the defendant does not contest its obligation to test the chimney for draft before connecting the heater to it, it objects to the following findings which are implicit in the decision of the trial judge: (1) that exhaust fumes from the heater caused the dampness and consequent damage, (2) that the chimney was blocked when the defendant connected the gas heater to it, and (3) that $850 is the reasonable cost or expense of restoring the property to its former condition.

Specifically, the defendant contends that the first and third findings are not supported by legally competent evidence and that the second finding is against the weight of the evidence.

The credibility of the witnesses and the weight to be accorded their testimony were for the trial judge. Rosine v. Gerlach, 173 Pa. Superior Ct. 240, 98 A.2d 436 (1953). The general finding of the trial judge for the plaintiff has the force and effect of a jury's verdict. Ibid. The argument that his decision is against the weight of the evidence was peculiarly for the court below, and this court will not reverse unless the lower

[ 198 Pa. Super. Page 286]

    court abused its discretion in affirming his decision. Robinson Electrical Co., Inc. v. Capitol Trucking Corporation, 168 Pa. Superior Ct. 430, 79 A.2d 123 (1951).

1. The following evidence, taken most favorably to the plaintiff, as it must be in view of the decision, amply supports the trial judge's finding that exhaust fumes from the heater caused the dampness and consequent damage. An expert testified that combustion in a gas heater produces a considerable quantity of water. This ordinarily passes through an open chimney in vapor form, but, if cooled below a certain temperature, it will condense to form water and combine with other products to produce acid capable of turning plaster into a porous spongy, ulcer-like mass and causing paint to deteriorate. The exterior of the plaintiff's four room house was newly painted shortly before the defendant installed the gas heater in the basement in Marhc 1955. The chimney was an old one which had recently been built down from the first floor to the basement. Shortly after the heater was installed the interior rooms were repapered and repainted. After the heater was placed in operation, in October 1955, the walls and ceiling became damp "down in through the chimney line", the wallpaper and plaster became discolored, and the plaster assumed a "foam, crumbling look". These conditions spread and eventually the wallpaper in two rooms was completely ruined. By January or February 1956 the paint on an exterior wall of the dwelling began to peel off. The wood underneath the paint had a warped and discolored appearance. A repairman called ...


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