Holt v. Kolker

• Decision Date: 18 February 1948
• Docket Number: 61.
• Citation: 57 A.2d 287,189 Md. 636
• Parties: HOLT v. KOLKER et al.
• Court: Maryland Court of Appeals

57 A.2d 287

189 Md. 636

HOLT v. KOLKER et al.

No. 61.

Court of Appeals of Maryland

February 18, 1948

Appeal from Court of Common Pleas of Baltimore City; John T. Tucker Judge.

Action by Grace Holt against Benjamin Kolker, trading as Maryland Lumber Company, wherein Clarence Wiesner was joined as a third-pary defendant. From the judgment in favor of both original defendant and third-party defendant, plaintiff appeals.

Judgment as to both defendants affirmed.

William Taft Feldman, of Baltimore (David J. Markoff of Baltimore, on the brief), for appellant.

Foster H. Fanseen, of Baltimore, for Benjamin Kolker.

Rosezel C. Thomsen, of Baltimore (Clater W. Smith and Clark, Thomsen & Smith, all of Baltimore, on the brief), for Clarence Wiesner.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

DELAPLAINE Judge.

This suit for damages was instituted by Grace M. Holt, who resided with her husband, Albert F. Holt, on the second floor of a house on Denver Street in South Baltimore. She alleged that in June, 1945, the owner of the house, Benjamin Kolker, who leased the premises to her husband, made alterations to the second-floor porch; that on July 11, 1945, the porch, as a result of its unsafe condition, precipitated her to the ground, whereby she was seriously injured; and that the collapse was caused by the lessor's negligence in making the alterations and allowing the porch to remain in an unsafe condition.

The house is a two-story brick building, but plaintiff claimed that the first floor was not fit to live in. The porch which collapsed is a wooden balcony outside the kitchen door extending to the left along the wall of an adjoining house. On the extension the tenants usually stored miscellaneous articles, and sometimes the dog stayed there at night. As there was no toilet in the house, and the one in the yard was not usable, the landlord promised to put one on the porch to the left of the kitchen door. He employed Clarence Wiesner, a plumber, to do the work. Wiesner and another man, presumably his helper named McAllister, made two holes in the porch to run the pipes through. They put up a large pipe above the porch, and laid a sewer pipe in a ditch under the porch. They completed this work before the end of June. On July 11, 1945, plaintiff came out on the porch to get her mop, which was hanging on the wall to the right of the door, i. e., to the left going out. She had walked only about three steps when the porch floor collapsed and she fell through it to the ground. She sustained multiple fractures of the ankle bones, and because of her injuries she was confined in the University Hospital until August 30, 1945. For about one year afterwards she was unable to walk without the aid of crutches on account of deformities resulting from the fractures.

Before the case came to trial Kolker alleged, in a claim making Wiesner a third-party defendant under the Contribution Among Tortfeasors Act, Code Supp.1943, art. 50, secs. 21-30, that Wiesner had done plumbing work on the premises as an independent contractor prior to the accident, and that he may be liable as a joint tortfeasor for the reason that he negligently removed a portion of the porch in the course of his work. At the close of plaintiff's case the trial judge directed the jury to render a verdict in favor of both original defendant and third-party defendant. From the judgment entered on that verdict plaintiff brought this appeal.

In the Court below plaintiff adduced the following evidence: (1) That the landlord agreed to install the toilet on the second-floor porch; (2) that the toilet could not be installed unless holes were made in the porch; (3) that notwithstanding that the porch was old and rickety, the landlord failed to employ a carpenter or to put any underpinning under the porch...