Baird v. Ellsworth Realty Co., 21946
| Decision Date | 01 March 1954 |
| Docket Number | No. 21946,21946 |
| Citation | 265 S.W.2d 770 |
| Parties | BAIRD v. ELLSWORTH REALTY CO. |
| Court | Missouri Court of Appeals |
Anthony J. Miceli, Lawrence W. Saeger, Kansas City, for appellant.
Richard P. Sprinkle, Sprinkle, Knowles & Carter, Kansas City, for respondent.
This is an appeal from a judgment for plaintiff in the sum of $1,000 because of property damage suffered when steam escaped from a pipe in the apartment occupied by plaintiff and owned by defendant. This suit originated in the magistrate court, and the statement filed by plaintiff is substantially as follows:
Paragraph 1 of the statement alleged that the defendant owned and operated a certain apartment building in Kansas City, which building was heated with steam; paragraph 2 alleged that plaintiff occupied one of said apartments and that prior to his occupancy the radiator in plaintiff's bedroom was removed by defendant; paragraph 3 alleged that on a certain date a fire was built in the furnace of said apartment building and steam was permitted to pass through the pipe into the rooms occupied by plaintiff; that plaintiff was away at the time and the steam bleached plaintiff's furniture, saturated his clothing and damaged his other property therein; paragraph 4 alleged that the aforesaid condition was known to the defendant, and that defendant negligently failed to warn plaintiff or to remove the open pipe in plaintiff's bedroom, and as a result, his property was damaged in the sum of $1,000.
Defendant did not file answer in the magistrate court, but a trial was had resulting in a verdict and judgment for plaintiff in the sum of $1,000, and defendant appealed to the circuit court. Thereafter, defendant filed answer admitting the allegations of paragraphs 1 and 2 of the statement, but denied the allegations in paragraphs 3 and 4, and alleged that whatever damage plaintiff had suffered was due to his negligence.
The trial in the circuit court before a jury resulted in a verdict and judgment for plaintiff in the sum of $1,000, and defendant appealed.
Defendant's first contention is that the court erred in overruling its motion to dismiss the case at the close of plaintiff's evidence, because (a) the statement fails to state a claim upon which relief can be granted, and (b) that the evidence was insufficient to establish liability on the part of the defendant.
This cause originated in the magistrate's court where formal pleadings are not required, Section 517.050 RSMo 1949, V.A.M.S. It is uniformly held that pleadings originating in a magistrate's court are to be liberally construed, and if the pleading is sufficient to advise the defendant of the nature of the claim, and is sufficiently specific to bar another action thereon, then it cannot be said that the statement wholly fails to state a cause of action. Brown v. Clark's Estate, Mo.App., 207 S.W.2d 530. There was no motion filed attacking the sufficiency of the statement until the close of plaintiff's evidence. We think the statement is sufficient under the above rule.
Concerning the assignment that the court erred in not sustaining defendant's motion for directed verdict at the close of plaintiff's evidence, it is sufficient to say that defendant waived this point by introducing evidence on its behalf. Smith v. Thompson, Mo.App., 258 S.W.2d 278; Hieber v. Thompson, Mo.App., 252 S.W.2d 116.
Defendant's next contention is that the court erred in overruling its motion for directed verdict at the close of all the evidence because there was no substantial evidence to establish legal liability against the defendant. This necessitates a statement of the evidence.
Defendant's answer admits that it was the owner and operator of this apartment building; that plaintiff was a tenant in one of the apartments; and that prior to October 21, 1949, the date of the alleged damage, defendant removed a radiator from the bedroom. There is no conflict in the evidence that defendant's janitor built a fire in the furnace which was used to heat the various apartments in the building; that steam escaped into plaintiff's apartment from a pipe connected with the furnace, and that his property was damaged.
The point of controversy is whether there was sufficient evidence to submit the issue of defendant's negligence in permitting the steam to escape into the apartment.
Plaintiff testified that he and his wife and small child moved into the apartment about six weeks prior to the loss in question; that he did not personally move the furniture, but employed another to do so; that the landlord was to furnish heat to the apartment; that he did not know the radiator in the bedroom had been removed and had not observed the pipe from which the radiator had been removed; that the janitor, defendant's employee, had control over the heating equipment in the building; that on October 21, the plaintiff and his wife drove to Chillicothe for a weekend visit and while there received a telephone call from a neighbor and returned to their apartment and found that steam had escaped from the pipe where the radiator had been removed and his property damaged; that one of the neighbors had turned the steam off; that he then noticed the pipe for the first time; that the end of the pipe was not capped but there was a 'knob' near the end of the pipe; that the janitor tightened this 'knob' and they had no further trouble from escaping steam. It is conceded that the 'knob' referred to by the plaintiff was in fact a 'shut-off valve'.
Plaintiff's wife testified that she had observed the pipe when they moved into the apartment but that she knew nothing about such matters and did not know that a radiator had been removed therefrom, or that the pipe was connected with the furnace; that the janitor told her that they should not turn the radiators on and off, that it made the pipes in the building shake, and that he would turn them on and off; that she did not touch the valve on the pipe; that after the janitor tightened it, subsequent to the damage, no steam escaped; that as far as she knew, there had not been a fire built in the furnace after they moved in until the time of this occurrence; that the pipe was located in the corner of the bedroom, and that when they moved in she placed a vanity bench over the end of the pipe and that the bench remained there during the time they occupied the apartment; that when they left for Chillicothe the weather was rainy and cloudy; and that she would have expected the landlord to turn the heat on if it got cold enough.
Defendant introduced evidence from experienced apartment house managers that it is not the practice to notify tenants when the heat will be turned on; that when a radiator is removed, it is not customary to 'cap' the end of the pipe, but rather tighten the 'shut-off valve' which is located near the end of the pipe; that if this valve is tight, steam cannot escape therefrom, but that if it is 'pretty well open', steam will escape. Mr. Ellsworth testified that he was one of the managers of the apartment building and that he was in the apartment sometime prior to plaintiff moving into it; that he observed that the radiator in the bedroom had been removed and that he turned the control valve...
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