Begley v. Adaber Realty & Inv. Co.
| Decision Date | 11 June 1962 |
| Docket Number | No. 48973,No. 1,48973,1 |
| Parties | Thomas M. BEGLEY, Respondent, v. ADABER REALTY & INVESTMENT COMPANY, a Corporation, Saul Rubin and Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, Saul Rubin, Individually, and Louis Rubin, Individually, Appellants |
| Court | Missouri Supreme Court |
Evans & Dixon, William Wallace Evans, Henry D. Menghini, St. Louis, for appellants.
Cox, Cox, Cox & Moffitt, Harvey B. Cox, Jr., William A. Moffitt, Jr., St. Louis, for respondent.
HOUSER, Commissioner.
Action for damages for personal injuries sustained when an 80-foot section of overhead head heating ductwork fell from the ceiling of a supermarket in St. Louis and struck a customer who was shopping in the store. Plaintiff, Thomas M. Begley, sued the owner of the building (Adaber Realty & Investment Company, a corporation) and the general contractors who erected the building (Saul and Louis Rubin, a partnership doing business as Jacob Rubin & Sons) for $100,000. A jury returned a verdict 'against both of the defendant' for $20,000. Following the overruling of defendants' motion for a new trial, defendant appealed from the judgment.
Instructions Nos. 1 and 3 outline plaintiff's theory of recovery against the partnership and corporation, respectively. We reproduce them in one column to the extent they are identical; in two columns wherein they differ:
'The Court instructs the jury that it is admitted that Jacob Rubin & Sons, Contractors is and was at all times mentioned in evidence a partnership in the State of Missouri, and that Saul Rubin and Louis Rubin were at all times mentioned in evidence partners doing business under the name of Jacob Rubin & Sons, Contractors. The Court further instructs the jury that it is admitted that Adaber Realty & Investment Company, a corporation, entered into a written lease which provided that Adaber Realty & Investment Company, a corporation, would erect a building for use by National Food Stores, Inc., as a retail food store on premises located at 2747 Goodfellow Avenue, St. Louis, Missouri, and that thereafter Adaber Realty & Investment Company arranged for the construction of the said building at 2747 Goodfellow Avenue, St. Louis, Missouri by Jacob Rubin & Sons, Contractors and that thereafter Jacob Rubin & Sons, Contractors undertook to act as general contractors for the construction and erection of the aforesaid building at 2747 Goodfellow Avenue and that after the erection of said building, the said building was leased to National Food Stores, Inc., for a period of time extending beyond the 15th day of February, 1958.
'The Court instructs the jury that if you find and believe from the evidence that on or about the 15th day of February, 1958, plaintiff, Thomas M. Begley, was lawfully in and upon the aforementioned premises located at 2747 Goodfellow Avenue, St. Louis, Missouri, as a business invitee of the National Food Stores, Inc., and that while plaintiff was engaged in shopping in said premises and while he was in an aisleway located therein, a portion of the heating duct work fell from the ceiling of the said building and struck plaintiff, directly and proximately causing plaintiff to be injured, if you so find, and if you further find that the said portion of the heating duct work which fell and struck plaintiff was improperly and insecurely installed and affixed to the ceiling materials of said building at the time it was installed, if you so find, and if you further find that such improper and insecure installation if any you find, as installed would in the future, in all reasonable probability, cause the said heating duct work to come loose and fall down, if you so find, and if you further find that in the performance of their functions as general contractors for the construction and erection of the aforesaid building Saul Rubin and Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, in the exercise of ordinary care should have discovered the improper and insecure installation, if any you find, of the said heating duct work, and in the exercise of ordinary care should have known that said heating duct work as installed would in the future be apt to come down and would be dangerous to persons lawfully in the said premises, if you so find, and if you further find that thereafter the improper and insecure installation, if any you find, of the said heating duct work could not be discovered by National Food Stores, Inc., by the exercise of ordinary care, if you so find, and if you further find that Saul Rubin and Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, knew or in the exercise of ordinary care should have known that National Food Stores, Inc., in the exercise of ordinary care could not then discover the improper and insecure installation, if any, of the said heating duct work, if you find,
and if you further find that the said Saul Rubin & Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, thereafter caused, allowed and permitted the completed building to be occupied and used by National Food Stores, Inc., without disclosing the improper and insecure installation, if any, of the said heating duct work, if you so find, and if you further find that Saul Rubin & Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership, thereby failed to exercise ordinary care for plaintiff's safety and were negligent, if you so find, and if you further find that plaintiff was directly and proximately injured by such negligence, if any, on the part of said defendants, then your verdict shall be in favor of the plaintiff, Thomas M. Begley and against Saul Rubin and Louis Rubin, d/b/a Jacob Rubin & Sons, Contractors, a partnership.'
and if you further find that at all times mentioned in evidence Adaber Realty and Investment Company, a corporation, owned the aforesaid real property and premises erected thereon, if you so find, and if you further find that at all times mentioned in evidence Saul Rubin and Louis Rubin were officers and principal stockholders of Adaber Realty & Investment Company, a corporation, if you so find, and if you further find that such Corporation, through the said officers and principal stockholders, if you so find, knew or in the exercise of ordinary care should have known of the improper and insecure installation, if any you find, of the said heating duct work and should have known that National Food Stores, Inc., in the exercise of ordinary care could not discover the improper and insecure installation, if any, of the said heating duct work, if you so find, and if you further find that the said Adaber Realty & Investment Company, a corporation, thereafter caused, allowed and permitted the completed building to be occupied and used by National Food Stores, Inc., without disclosing the improper and insecure installation, if any, of the said heating duct work, if you so find, and if you further find that Adaber Realty & Investment Company, a corporation, thereby failed to exercise ordinary care for plaintiff's safety and was negligent, if you so find, and if you further find that plaintiff, Thomas M. Begley, was directly and proximately injured by such negligence, if any, on the part of the said Adaber Realty & Investment Company, a corporation, then your verdict shall be in favor of the plaintiff, Thomas M. Begley, and against Adaber Realty & Investment Company, a Corporation.'
Appellants' main point is that the court erred in not directing a verdict for defendants because of lack of evidence.
First, appellants say the evidence fails to show beyond speculation and conjecture that the ductwork was improperly installed, or that improper installation caused it to fall. There was evidence tending to prove the following: The customary method of hanging ductwork from a ceiling is to nail or screw metal straps or hangers to the sides of the joists, the straps dropping down to catch the duct, which is attached to the straps by metal screws. Normally metal hangers or straps are installed before the sheetrock and ceiling title (Celotex in this instance) is put up. The hangers or straps would have to be securely fastened to the joists to hold the weight. If the ductwork or hangers were attached to the ceiling tile and sheetrock, and not to the joisis, or nailed through the sheetrock and tile into the joists, it would not hold but would come down. Toggle bolts through sheetrock would not hold. It would not be normal procedure to drive nails straight up into the joists. Nails should be driven into the sides of the joists, horizontal to the floor and perpendicular into the sides of the joists, which gives greater support. There should be hangers every four feet. Several witnesses observed no hangers or metal straps coming down through the ceiling, or running up through the ceiling and attached to the joists. Others testified there were 'very few,' or only two, three or four hangers or straps in the entire 80 feet of ductwork that fell. One witness testified the straps were approximately fifteen feet apart. After the ductwork fell, nail holes in the top of the ductwork were seen. Nails were found on the floor. An examination of some of the hangers that held the ductwork to the ceiling showed there were nails projecting through the top flange, and holes in the Celotex the size of a nail. A spot on the ceiling was visible 'where the object had pulled out that was holding the duct,' and no structure visible beyond the Celotex itself that a nail may have been driven into. There were no holes, openings, slits or slots leading up through the Celotex indicating that anything had gone up through the plasterboard into the joists, and no hangers were observed running up into the attic, or projecting down through the ceiling. It seemed to the store manager that the ductwork was 'just held to the ceiling by...
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