Capra v. Phillips Inv. Co.

• Decision Date: 10 June 1957
• Docket Number: No. 44784,44784
• Parties: Joe CAPRA, Frank Accurso, Sam Accurso and Jack Accurso, Respondents, v. PHILLIPS INVESTMENT COMPANY, a Corporation, and Hotel Phillips, Inc., a Corporation, Appellants.
• Court: Missouri Supreme Court

Page 924

302 S.W.2d 924

Joe CAPRA, Frank Accurso, Sam Accurso and Jack Accurso, Respondents, v. PHILLIPS INVESTMENT COMPANY, a Corporation, and Hotel

Phillips, Inc., a Corporation, Appellants.

No. 44784.

Supreme Court of Missouri, En Banc.

June 10, 1957.

Albert Thomson, Clem W. Fairchild, Al Lebrecht, Kansas City, Davis, Thomson, VanDyke & Fairchild, Kansas City, of counsel, for plaintiffs-respondents.

Harry L. Jacobs, Robert, J. Coleman, Kansas City, for appellant, Phillips Inv. Co.

Clyde J. Linde, Robert J. Coleman, Robert B. Langworthy, Billy S. Sparks, Kansas City, Langworthy, Matz & Linde, Ringolsky & Jacobs, Kansas City, of counsel, for appellant, Hotel Phillips, Inc. BOHLING, Commissioner.

Joe Capra, Frank Accurso, Sam Accurso and Jack Accurso, plaintiffs, recovered a judgment on a nine-juror verdict for $48,000 against Phillips Investment Company and Hotel Phillips, Inc., corporate defendants, sometimes herein referred to as Investment company and the Hotel, respectively, for the destruction by fire on the morning of December 14, 1952, of a restaurant and tavern, known as the Ringside Grill, owned and operated by plaintiffs as partners, on the submitted grounds that Phillips Investment Company breached a lease with plaintiffs in permitting Hotel Phillips, Inc., sub-lessee, to repair and refinish furniture and mattresses and to store certain combustible materials on leased premises in the building in violation of Secs. 17-27, 17-39 and 17-44 (hereinafter quoted) of the Kansas City Fire Prevention Code; and for negligence on the part of Hotel Phillips, Inc., in repairing and refinishing furniture and mattresses and in storing said materials on said premises in violation of said ordinance provisions, all of which directly resulted in the spread of the fire to the premises occupied by plaintiffs. Defendants contend plaintiffs failed to prove a case against either defendant; that error was committed in the admission and exclusion of evidence, in the giving of instructions and that the damages are grossly excessive.

The building, two stories, facing west and known as 1113-1115 Wyandotte, a north-south street, was 50 feet wide and extended 142 feet eastwardly to an alley. It had an east-west center partition and front-center entrances and stairways to the second floors and basements. Elevator shafts were at its southeast and northeast corners. The alley, 16 feet wide, was approximately 10 feet lower than Wyandotte street. The basement was at the alley level, and the building appeared to be three stories on the alley side. Immediately south of the building was the State Hotel, occupying a 50 by 142 foot lot at the intersection of Wyandotte and 12th, an east-west street. Across the alley and extending northwardly from the intersection of 12th and Baltimore, the next street east of Wyandotte were, respectively, the Hotel Phillips (a 23-story building opposite the State Hotel), the Hotel Phillips Annex (a three story building opposite 1115 Wyandotte), and the Hotel New Yorker (opposite 1113 Wyandotte), each 142 feet east and west by, respectively, 50, 25 and 25 feet. A footbridge or ramp crossed the alley from the roof of the Annex, angling slightly, so as to connect with the second floor above the Grill.

Hotel Phillips, Inc., operates the Hotel, with bars, restaurants and rooms to accommodate guests. Phillips Investment Company is a family corporation trading in real estate.

Plaintiffs held a lease on 1113 Wyandotte street, Kansas City, Missouri, and in 1948, leased the second floor of 1113 Wyandotte to Phillips Investment Company. The lessee covenanted, among other things, in said lease: 'to take good care of the premises, and keep them in good repair, free from filth, danger of fire or any nuisance' and 'to comply with the ordinances of the City and the laws of the State and save harmless the Lessors for or on account of all charges or damages for non-observance thereof.'

The Ringside Grill (1113 Wyandotte) occupied the north half of the first floor and basement of the building. Sammy Farha had a tailoring and cleaning shop in the west 58 feet of the south half (1115 Wyandotte) of the building. The Grill, under arrangements had in connection with the above lease, used the next 40 feet to the east as a banquet room.

The remainder of the building was occupied by the defendants with the Hotel in possession as sub-lessee of the Investment company. The Hotel used the east 34 feet of the first floor of 1115 Wyandotte as a storeroom. A hallway extended down the center of the second floor. South of the hallway and above the tailor shop was an apartment, occupied by George Howell, chief engineer for the Hotel. The other rooms on the top floor were used by the Hotel for the storage of furniture, mattresses, rugs and rug pads, baggage, et cetera and two rooms for old records. There was also an upholstery repair shop with upholstery material, and a carpenter repair and finishing shop. This is developed more fully hereinafter. The rooms were not fireproof.

There was testimony that the building was 30 or 40 years old. It was of wood and brick construction. An east-west center row of metal columns, with steel I-beams, carried the floor system, with the outward ends of the joists built into the brick walls. The Grill's ceiling was pressed metal throughout. It was originally about 11 feet high, and had been furred down to about 10 feet from the front to the end of the bar. The floor of the Grill was pine, with a maple floor over it and asphalt tile over that extending back east to the kitchen doorway. The second floor flooring was maple on top of sub-flooring. The Grill's main dining room extended east 90 or 92 feet. Along the north wall for about 15 feet was the front kitchen for short orders, a steam table and range, and east of that a 35 foot bar with 15 to 20 stools. Booths and tables for serving approximately 100 occupied the remainder of the main dining room. There was a partition at the east end of the dining room, with swinging doors on the south leading into a corridor of about 8 feet, which proceeded northwardly a few feet and thence, narrowing, eastwardly to the back kitchen. The restrooms were off of this corridor along the north wall, and south of it was a balcony or mezzanine, said to be 18 by 21 feet, used as an office and reached by enclosed steps at its southwest. The east, approximately, 25 feet was a kitchen, used to prepare the food for the lunches served from the front kitchen. After the lunch hour, or about 2 p. m., the back kitchen was closed and the front kitchen was used to serve food and prepare short orders.

Defendants contend plaintiffs had no substantial evidence that the fire originated on defendants' premises. Defendants adduced substantial evidence that the fire originated in plaintiff's Grill in the corridor south of the restrooms, east of the swinging doors of the partition, and near or at the steps leading to plaintiffs' balcony, approximately 100 feet east of Wyandotte street and 40 feet west of the alley.

Plaintiffs say their evidence established that the fire started on defendants' premises, but even if it did not defendants are liable for the damage caused by their violation of the ordinances hereinafter discussed. We find no evidence in the record that the fire originated any place other than on the premises of either the defendants or the plaintiffs. No case cited by plaintiffs holds a defendant liable for a fire which originated on the plaintiff's premises. They are to the effect that although the defendant be not negligent in starting a fire on his premises or if a third person start a fire and the fire spreads to plaintiff's premises by reason of negligence chargeable to defendant, the plaintiff may recover. Steele v. Darner, 124 Mo.App. 338, 103 S.W. 582; Willard v. Bethurem, Mo.App., 234 S.W.2d 18, 21; Steffens v. Fisher, 161 Mo.App. 386, 394, 143 S.W. 1101, 1103; Texas & N. O. R. Co. v. Bellar, 51 Tex.Civ.App. 154, 112 S.W. 323, 325; Lawrence v. Yadkin River P. Co., 190 N.C. 664, 130 S.E. 735[5, 6]; Silver Falls Timber Co. v. Eastern & W. Lumber Co., 149 Or. 126, 40 P.2d 703, 710, 733; Prince v. Chehalis Savings & L. Ass'n, 186 Wash. 372, 58 P.2d 290, 61 P.2d 1374; 22 Am.Jur. 603, n. 21, citing Rudder v. Koopman, 116 Ala. 332, 22 So. 601, 37 L.R.A. 489. The essential fact on this phase of the instant case is whether plaintiffs had probative evidence that the fire originated on defendants' premises. Consult Annotation, 18 A.L.R.2d 1081.

It is well settled, Machens v. Machens, Mo., 263 S.W.2d 724, that for the purposes of appellate review a plaintiff's verdict (defendant's motion for new trial standing overruled) is final on the fact issues if supported by substantial evidence; and whether plaintiff made a submissible case is determined in the appellate courts by a review of the probative facts not entirely unbelievable or opposed to the physical facts, Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105[5, 6] from the standpoint most favorable to the plaintiff, including facts established by defendant's evidence aiding plaintiff's case when not in conflict with plaintiff's testimony or plaintiff's fundamental theory, giving plaintiff the benefit of all legitimate favorable inferences and disregarding defendant's evidence unfavorable to plaintiff. Catanzaro v. McKay, Mo., 277 S.W.2d 566; Sollenberger v. Kansas City Pub. Serv. Co., 356 Mo. 454, 202 S.W.2d 25; Hines v. Western U. Tel. Co., 358 Mo. 782, 217 S.W.2d 482. In the circumstances presented we do not weight conflicting probative evidence. State ex rel. Kansas City Public Service Co. v. Bland, 353 Mo. 1234, 187 S.W.2d 211; Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907.

James Pebley, defendants' witness and extra fire marshal for the Hotel, worked Saturday nights. He testified he checked the Hotel premises every hour and a quarter. He had been on the floor above the Grill between 1:05 and 1:10 a. m.,...