Hessler v. Suburban Propane Natural Gas Co. of Pa.

• Decision Date: 04 January 1961
• Citation: 402 Pa. 128,166 A.2d 880
• Parties: Gretchen HESSLER and George Hessler, Jr. v. SUBURBAN PROPANE NATURAL GAS COMPANY OF PA., Appellant.
• Court: Pennsylvania Supreme Court

Page 880

166 A.2d 880

402 Pa. 128

Gretchen HESSLER and George Hessler, Jr. v. SUBURBAN PROPANE NATURAL GAS COMPANY OF PA., Appellant.

Supreme Court of Pennsylvania.

Jan. 4, 1961.

Thomas E. Comber, Jr., John J. Runzer, Pepper, Hamilton & Scheetz, Philadelphia, for appellant.

Langdon W. Harris, Jr., Harris, Hammond & Harris, Philadelphia, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

PER CURIAM.

The judgment is affirmed on the opinion of the Honorable Joseph Sloane, P. J. of the court below.

The opinion of President Judge Joseph Sloane, follows:

In this negligence case, the Jury returned a verdict for the wife-plaintiff (Mrs. Hessler) for $50,000. Nothing was given to Mr. Hessler, the husband-plaintiff, in probability because the Jury sympathetically believed Mr. Hessler abandoned his wife when, after the untoward event, she needed him most, but this unhappy domestic circumstance has no bearing upon the matter in hand.

Defendant moved for a new trial; we refused it.

Mrs. Hessler was stirring in her kitchen; there was a heavy explosion in and from a gas-water heater; she was badly hurt.

The heater and equipment were supplied by defendant, which also supplied bottled gas for use and serviced the system. Plaintiffs had trouble with the hot water system for a time before the occurrence. Plaintiffs and their guests on occasions detected the odor of gas, and this was reported to defendant. These complaints brought defendant's servicemen to the Hessler home, and they did work on the equipment on August 23, August 30, September 6 and September 9, 1955. They did some cleaning, adjusting and installation of a new compression fitting.

On the day the accident happened, October 17, 1955, Mrs. Hessler, working in the kitchen of her home as she was, had occasion to turn on the hot water spigot in the sink. The water seethed out with the surge of steam. She then turned on the cold water spigot, but hot water came from it. Mrs. Hessler looked toward the hot water heater, saw flames around the bottom and heard a hissing sound coming from it. She went over to the heater and turned the knob controlling the temperature to off. The flames around the bottom continued; she turned the pilot control off. At that moment there came this terrifying explosion which wrecked the flooring; the heater fell into a crawl space beneath the floor, cracked a wall, damaged the burner unit and the boiler. Mrs. Hessler, we say again, suffered serious and permanent injuries.

Defendant strives for a new trial asserting that the great weight of the evidence is on its side. Defendant argues that plaintiffs' theory was that the explosion followed the bursting of the boiler tank, while defendant's seven witnesses showed there was no bursting of the tank; it was intact after the explosion. Some of these witnesses said they had to drain water from the tank before they could test it, showing it was whole. The tank itself was not produced at trial though defendant took it away from plaintiffs' home after the event, and defendant was unable to say what happened to it. Defendant did produce photographs of the tank which showed great damage to the casing of the tank, but did not show any rupture of the metal inner container of the water. But, these photographs did not show all portions of the inner tank and were not conclusive upon the soundness of it.

To establish defendant's negligence as the cause of the explosion, plaintiffs produced an expert witness who testified that from his consideration of plaintiffs' description of the happening of the accident, the age of the system, the work records of defendant's servicemen in attempting to correct and repair the burner units, the flow of steam from the hot water spigot and hot water from the cold spigot, that an imbalance had occurred that caused a heating of the water in an aging tank to a point where it reached the bursting point. According to this expert, if the system were working properly the feeding of gas would have stopped through the normal automatic operation of the controls; it could not have been a gas explosion if flames were seen by plaintiff in the burner unit; a gas explosion would not have generated the pressure that did so violently dislodge the structures in the room; the failure of the controls to operate properly was discoverably by prior inspection and that it was due to obsolescence of the equipment which had reached the point of replacement rather than 'tinkering' repairs which could no longer correct the basic defects.

Defendant's witnesses advanced a theory of the occurrence completely contrary to plaintiffs' version. Defendant's witnesses found no bursting of the tank, that therefore the explosion must have been the gas around the burner and that it must have occurred while Mrs. Hessler was trying to light the pilot after it had gone out. There was a printed instruction attached to the heating unit that if the pilot light should go out, at least two minutes must be allowed to elapse before relighting it to give accumulated gas time to come to nothing. They concluded that the pilot light had gone out and that Mrs. Hessler had tried to relight it before waiting the required two minutes; hence, the explosion.

But, Mrs. Hessler testified positively on direct examination, cross-examination and in rebuttal that she never tried to light the burner, but had only tried to turn the controls off because of the flames around the burner and the system was much too hot.

Defendant complains that the trial-Judge did not emphasize sufficiently to the jury that seven witnesses testified for defendant, five of them stating the tank had not burst, and that this numerical superiority tended to show the great weight of evidence to be with defendant. However, the trial-Judge did state to the jury that these witnesses had testified the tank was intact, accompanying it with the statement that evaluation of all the testimony was for the jury. The jury had the full situation before it, and knew it was required to consider number of witnesses, their disinterestedness, and above all, the quality of their testimony. See Ferruzza v. Pittsburgh, 394 Pa. 70, 82, 145 A.2d 706; Costack v. Pa. R. R. Co., 376 Pa. 341, 102 A.2d 127; Patterson v. Pittsburgh Rys. Co., 322 Pa. 125, 185 A. 283; Braunschweiger et al. v. Waits, 179 Pa. 47, 51, 36 A. 155, 156: 'The weight of evidence is not a question of mathematics, but depends on its effect in inducing belief'; and 'There is no rule requiring a court to determine an issue solely on the number of witnesses'. ...