Appeal from order of County Court of Philadelphia, June T., 1960, No. 12247-B, in case of Morris S. Wilf, individually and trading as Penn Records, v. Philadelphia Modeling and charm School, Inc. et al.
David Goldberg, with him Maxwell E. Verlin, and Verlin & Goldberg, for appellant.
Jerome B. Apfel, with him Blank, Rudenko, Klaus & Rome, for appellee.
Frederick W. Anton, III, with him Paul H. Ferguson, for appellee.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J. Wright, J., would grant a new trial.
[ 205 Pa. Super. Page 198]
This appeal is from the refusal of plaintiff-appellant's motions for judgment non obstante veredicto and for a new trial after a jury verdict for both defendants-appellees in an action of trespass for property damage.
The only evidence in this case was presented by the appellant. Appellees did not present any evidence. Considering the evidence in the light most favorable to the appellees and giving them the benefit of all reasonable inferences to be drawn therefrom, we summarize the facts as follows. Appellant maintained a retail business of selling phonograph records on the first-floor level of a building known as 1734 Chestnut Street, Philadelphia, Pennsylvania. The Philadelphia Modeling and Charm School, Inc. (School) occupied the second floor of the same building immediately over appellant's store. On May 20, 1960, School engaged
[ 205 Pa. Super. Page 199]
the services of the other appellee, S. S. Fretz, Jr., Inc. (Fretz) to repair its air-conditioning equipment. About noon on that day while Frank Mugnier, an employe of Fretz, was making said repairs a water pipe was broken and water flowed from the break down from the second floor into the store of appellant and allegedly caused damages to appellant's property. The lower court in its opinion described the accident as follows:
"The repairman, with over thirty years of service and experience in the field, while servicing the School's air conditioning unit, turned off what he believed to be the water supply valve, then checked the system to determine if there were any water in the condenser. He did this by putting one wrench on a part of a union and another wrench on the other part of the union. In attempting to open the line, the pipe sheared off at a service 'L' (elbow), approximately two feet, or thirty inches from the union. This service elbow had corroded, 'which you couldn't tell until you put pressure on it and smelted it.' From all outward appearances there was no defect in the water line, including the service elbow. The apparently sound but latent corroded pipe split at the elbow joint. The water started flowing out at this break in the pipe. In opening the union the repairman was making a test to ascertain whether there was water in the line. No one knew where the main valve was. The repairman ran 'here and there, shutting off whatever valves' he could find to stop the flow of water from the broken elbow. He finally found the water valve in a powder room, in back of the hopper, in 'approximately five, eight minutes.' The water came out of the broken pipe for five to ten minutes and 'ran down this maple floor,' spreading out into the corridor and 'seemed to center' in the hallway. The people from downstairs came up and told him that the water was seeping into the store. He went downstairs, and saw water dripping through nail holes of
[ 205 Pa. Super. Page 200]
the metal ceiling. It was not flooding. The repairman returned to the second floor at which time the water was gone. He estimated that the water remained on the floor of the School about ten or ...