Angerman Co. v. Edgemon

• Decision Date: 21 July 1930
• Docket Number: 4894
• Court: Utah Supreme Court
• Parties: ANGERMAN CO., Inc. v. EDGEMON et ux

290 P. 169

76 Utah 394

ANGERMAN CO., Inc. v. EDGEMON et ux

No. 4894

Supreme Court of Utah

July 21, 1930

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by the Angerman Company, Incorporated, against G. W. Edgemon and others. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

Thomas & Dahlquist, of Salt Lake City, for appellants.

Hedrick & Shobert, of Salt Lake City, for respondent.

DILWORTH WOOLLEY, District Judge. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur. EPHRAIM HANSON, J., being disqualified did not participate.

OPINION

DILWORTH WOOLLEY, District Judge.

This is an action to recover damages for injury to personal property on the alleged ground of negligence.

The evidence showed that the plaintiff conducted a shop, in which was kept a stock of ladies' wearing apparel in a room on the ground floor of a certain building in Salt Lake City. The defendants conducted a hotel in rooms on the second and third floors of the same building. Both parties to the action were tenants of the same landlord. Directly over the plaintiff's shop, on both floors, were bathrooms and toilets used in connection with the hotel, in which were bathtubs, toilets, lavatories, and the plumbing fixtures usually found in such places, supplied with water under pressure in pipes. Under the terms of their lease the defendants covenanted with their landlord to make and be responsible for the repairs of the plumbing and water pipes fixtures, and appliances, and the upkeep of the same. It was also shown that water in some manner escaped from the pipes or fixtures in the bathroom or toilet on the third floor, found its way downward through the intervening floors and ceilings, and fell upon the goods, racks, showcases, and rugs in the shop, causing considerable damage to the merchandise.

One of the plaintiff's witnesses testified that on Sunday evening, about 9 o'clock, upon entering the shop, he noticed the floor was wet; that in tracing down the water, he found it leaking from a beam in the ceiling and that it had spread over three racks in which the dresses were all wet; that he immediately went upstairs and met Mrs. Edgemon, one of the defendants, who told him she was not aware of any leakage at that time; that he went upstairs the next morning, with his attorney, inquired where the leak had been, and Mrs. Edgemon showed them the bathroom or toilet on the second floor; that the walls were water-soaked all the way down and the ceiling in the lavatory had fallen; that they went up to the third floor and found the floor in the lavatory was wet but the ceiling and the walls dry; that Mrs. Edgemon told them she discovered the water on the floor for the first time when she heard the ceiling fall in the morning, and a maid or some one who was cleaning up told her there was water on the floor.

The evidence does not show just how or why the water escaped from the pipes or fixtures. If the defendants knew what caused the trouble, they failed to disclose their knowledge at the trial. They brought forward evidence to show that the plumbing fixtures were inspected and the toilets were flushed on the morning of the accident and at that time they worked all right; that the floats on the toilets were equipped with a string so attached to the cover as to prevent the float dropping down too far and interfering with rubber ball which drops into the outlet to the water-closet; that this string attachment was placed thereupon by the defendants as an extra precaution against the toilets leaking or overflowing, as they had considerable trouble with leaking toilets.

The trial was to the court sitting without a jury, judgment for the plaintiff, and the defendants appeal.

The findings of negligence upon which the judgment rests are as follows:

"6. That between on or about the evening of Saturday, the 25th day of December, 1926, and the night of Sunday, the 26th day of December, 1926, the defendants wrongfully kept in operation and use and wrongfully permitted and allowed the operation and use of the said bath room and toilet, and the tub, lavatories and water closets located therein, and operated and used the same and permitted the use of the same in so careless, improper and negligent a manner, and so failed to use proper or any care in the operation and use of same that the water from one of the said fixtures or appliances in said rooms escaped and overflowed under high hydraulic pressure, and the water therein was negligently allowed by the defendants to flow under high pressure continuously and for a long period of time out of said appliance or fixture and downward into and upon the floors and ceilings below.

"7. That * * * the defendants negligently and carelessly failed to keep one of said fixtures or appliances in said water system in such condition as to make it reasonably fit and safe for use by defendants and their said hotel employees or guests without injury or damage to others; and that defendants at said times negligently and carelessly disregarded their duty to keep the said premises and water system appliances or fixtures therein in such condition as to prevent injury or damage to other tenants of the same building; and that the defendants, at said times, negligently and carelessly allowed and suffered the water in said appliance or fixture in said water system confined therein under high pressure, to flow therefrom continuously, and to thereafter flow out of and over and under the floors, walls, and ceilings below; and that thereby a large quantity of water was negligently and carelessly allowed, permitted and suffered by the defendants to escape, and did escape; from said fixture; or appliance of said water system; and that, by reason thereof, said water descended in large quantities for a long period of time, and fell downward into the bath room and toilet or the second floor, directly below the bath room on the third floor and gathered on the floor of the same to a depth of approximately two inches, and fell downward into, upon and over the rooms below, and over, upon, into and under the ceilings, walls and floor of the plaintiff's said store * * * and partially destroyed said dresses, 116 in number, * * * to the damage of the plaintiff in the sum of $ 850.00."

The appellants, under proper assignments of error, urge three grounds upon which they rely for a reversal of the judgment, namely: (1) That the plaintiff failed to prove that defendants were negligent in any respect alleged in the complaint or at all; and that the doctrine or res ipsa loquitur, which the trial court applied to the case, does not apply, for two reasons: First, because the possession and control of the water and plumbing fixtures were not exclusively in the defendants, inasmuch as they were conducting a public inn to which the public had access at all times; and, second, because the plaintiff pleaded specifically several acts or omissions of negligence and failed to prove any of them, contending that when a plaintiff sets out specifically certain acts of negligence as the cause of the injury he must recover, if at all, upon the negligence charged and cannot invoke the doctrine of res ipsa loquitur to aid his case. (2) That, even assuming that the doctrine of res ipsa loquitur does apply, still the judgment should have been for the defendants because the inference of negligence warranted by that doctrine was fully overcome by the evidence of the defendants. And (3) that there is no competent evidence to support the finding of damages.

In the case of Zoccolillo v. Oregon Short Line R. Co., 53 Utah 39, 177 P. 201, 210, this court expounds the doctrine of res ipsa loquitur and refers to the previous cases in this court where the subject has been discussed. The rule which is quoted with approval in that case, taken from the case of Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 57 L.Ed. 815, Ann. Cas. 1914D, 905, is as follows:

"When a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of explanation, that the injury arose from the defendant's want of care."

It is further made to appear in that case that "the effect of the maxim is evidentiary, and that where it applies negligence, which is the ultimate fact to be established, may be inferred from a particular occurrence or accident." In some cases the inference may be so strong, where no explanation is offered, as not only to justify, but to compel, a finding of negligence; but ordinarily all that is meant by the maxim is that proof of the facts embraced within the statement of the rule affords reasonable evidence from which the jury, or the court, if the case be tried without a jury, may, in the absence of explanation by the defendant, infer that the injury arose from the defendant's want of care.

In the case at bar the plaintiff proved an injury which, we think is such as, in the ordinary course of things, does not happen if the person having control of the water under pressure in pipes and plumbing fixtures, in the upper stories of a building, uses proper care; it proved that the water and plumbing fixtures were under the exclusive control of the defendants, and the defendants offered no explanation as to how the water came to escape or as to why it was permitted to flow for such a length of time and in such volume as to find it way down through two floors and ceilings and upon the goods in the plaintiff's store. From these facts and circumstances we think the court had the right to...