Wilf v. Philadelphia Modeling & Charm School, Inc.

• Decision Date: 18 March 1965
• Citation: 208 A.2d 294,205 Pa.Super. 196
• Parties: Morris S. WILF, Individually and Trading as Penn Records, Appellant, v. PHILADELPHIA MODELING AND CHARM SCHOOL, INC., and S. S. Fretz, Jr., Inc.
• Court: Pennsylvania Superior Court

Page 294

208 A.2d 294

205 Pa.Super. 196

Morris S. WILF, Individually and Trading as Penn Records, Appellant, v. PHILADELPHIA MODELING AND CHARM SCHOOL, INC., and S. S Fretz, Jr., Inc.

Superior Court of Pennsylvania.

March 18, 1965.

Rehearing Denied April 12, 1965.

Maxwell E. Verlin, David Goldberg, Verlin & Goldberg, Philadelphia, for appellant.

Paul H. Ferguson, Frederick W. Anton III, Jerome B. Apfel, Philadelphia, Blank, Rudenko, Klaus & Rome, Philadelphia, of counsel, for appellees.

Before ERVIN, Acting P. J., and WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ. MONTGOMERY, Judge.

This appeal is from the refusal of plaintiff-appellant's motions for judgment non obstante veredicto and for a new trial after a jury verdcit 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 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 employee 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 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 fifteen minutes from the time the water was shut off.'

Although appellant persists in the argument that he is entitled to judgment in his favor, we find no merit in this contention. Since the appellees did not admit that they were negligent and liable for damages, the establishment of negligence, causation, and damages was dependent on oral testimony. Matters which rest on oral testimony are for the jury to decide, even if the proof is clear and uncontradicted. Yurkonis v. Dougherty, 382 Pa. 387, 115 A.2d 193 (1955).

Appellant's principal argument for a new trial is that he was denied the benefits of the doctrine of exclusive control by the court's refusal to charge the jury on that principle. The plaintiff's seventh point for charge reads as follows:

'We have a doctrine in our law called the doctrine of exclusive control. This means that when the thing which causes the injury is shown to be under the management of the defendants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. Therefore, if the defendants or either of them have not explained to your satisfaction that they exercised proper care to prevent the water from entering into the plaintiff's premises, you may make a finding for the plaintiff against either or both defendants, as the case may be. If you believe that either defendant has made a satisfactory explanation to you, then you should find against the other defendant. If you believe that neither of the defendants has made a satisfactory explanation to you, then you should find against both defendants.'

Our Supreme Court in Izzi v. Philadelphia Transportation Company, 412 Pa. 559, 566, 195 A.2d 784, 788 (1963), has outlined the five essential factors necessary before the doctrine of exclusive control can be invoked: (1) Where the thing which caused the accident is under the exclusive control of the defendant; (2) the accident or injury ordinarily would not happen if the defendant exercised due care; (3) where the evidence of the cause of the injury or accident is not equally available to both parties, but is peculiarly or exclusively accessible to and within the possession of the defendant; (4) the accident itself is very unusual or exceptional and the likelihood of harm to plaintiff or one of his class reasonably could have been foreseen and prevented by the exercise of due care; and (5) the general principles of negligence have not been applied theretofore to such facts.

The doctrine has been applied in water damage cases. House v. Schrieber, 168 Pa.Super. 621, 82 A.2d 594 (1951); Majestic Amusement Company v. Standard Cigar Company, 79 Pa.Super. 309 (1922); Silver Costume Company v. Passant, 71 Pa.Super. 252 (1919); Levinson v. Myers, 24 Pa.Super. 481 (1904). Also see Noah W. Shafer v. Lacock, Hawthorn & Company, 168 Pa. 497, 32 A. 44, 29 L.R.A. 254 (1895); Killion v. Power, 51 Pa. 429 (1866). However, the question before us at this time is whether the doctrine is applicable where a plaintiff supplies the evidence that the defendants might have offered.

Appellant's offer to call Frank Mugnier, an employe of Fretz, as for cross-examination in establishing his case was refused since the witness not not a defendant. This was not error. Patrick Callary and Catharine Callary v. The Easton Transit Company, 185 Pa. 176, 39 A. 813 (1898); Stewart v. Supplee-Wills-Jones Milk Company, 180 Pa.Super. 583, 119 A.2d 548 (1956). Mugnier was then called as plaintiff's witness and testified not only as to the control of the premises and the source of the water but also described the occurrence in detail. This makes the doctrine of exclusive control inapplicable. It is to be applied only where the evidence on causation is peculiarly or exclusively in the possession of the defendant and not equally available to both parties. It is purely a rule of evidence determining who has the task of producing evidence or who has the risk of non-persuasion. Eckman v. Bethlehem Steel Company, 387 Pa. 437, 128 A.2d 70 (1956). A presumption of fact, defined also as an inference, cannot stand after the facts have been proved. Heath v. Klosterman, 343 Pa. 501, 23 A.2d 209 (1941); Rhodes v. Pennsylvania R. R., 298 Pa. 101, 147 A. 854 (1929). In Riley v. Wooden, 310 Pa. 449, 165 A. 738 (1933), it was held that when a defendant, though called by a plaintiff as for cross-examination, has shown that the injury was not caused by the lack of due care, and his testimony is unimpeached, the rule has no application. The present case is stronger since the witness Mugnier was offered as appellant's witness and, therefore, his testimony was not subject to impeachment by the appellant.

Appellant argues that the doctrine of exclusive control has been applied in situations in which plaintiff's witnesses offered testimony showing not only the happening of the accident but also the circumstances surrounding the occurrence and in support thereof cites Trouser Corporation of America v. Goodman & Theise, Inc., 153 F.2d 284 (3rd Cir. 1946); McManus v. Pennsylvania Electric Company, 8 Pa.Dist. & Co.R.2d 303, affirmed per curiam, 389 Pa. 168, 132 A.2d 242 (1957); Turek v. Pennsylvania Railroad Company, 361 Pa. 512, 64 A.2d 779 (1949); and Noah W. Shafer v. Lacock, Hawthorne & Company, 168 Pa. 497, 32 A. 44 (1895), supra. We carefully have examined these cases and have found them in accord with what we state herein. In Shafer the issue was whether a fire was caused by a spark from a tinner's firebox or by something within the house. The doctrine was applied because the defendant was in exclusive control of the roof in making repairs to it and the plaintiff's case did not show how the spark might have escaped from the box. Therefore, it was incumbent on the defendant to show that the escape of the spark was not due to lack of due care if he were to overcome the inference arising from the application of the exclusive control doctrine. The same is true in th...