Commercial Realty Co. v. National Distillers Products Corp.

• Decision Date: 03 November 1950
• Docket Number: 16.
• Citation: 76 A.2d 155,196 Md. 274
• Parties: COMMERCIAL REALTY CO. v. NATIONAL DISTILLERS PRODUCTS CORP.
• Court: Maryland Court of Appeals

76 A.2d 155

196 Md. 274

COMMERCIAL REALTY CO. v. NATIONAL DISTILLERS PRODUCTS CORP.

No. 16.

Court of Appeals of Maryland.

November 3, 1950

Jacob Kartman, Baltimore (Makover & Kartman, Baltimore on the brief), for appellant.

Raphael Walter, Baltimore (Nyburg, Goldman & Walter Baltimore, on the brief), for appellee.

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

MARBURY, Chief Judge.

The appellee sued appellant to recover damages to its goods resulting from the freezing and bursting of a water pipe in part of the premises occupied by appellee as tenant of appellant. The case was heard before Judge Tucker, sitting without a jury, in the Court of Common Pleas of Baltimore City, and judgment was entered in favor of the appellee for the sum of $2,928.79. From that judgment, this appeal is taken.

The building in which the damage occurred was located at 3812-20 East Lombard Street in the city of Baltimore, and was owned by the appellant. It was a brick structure consisting of two stories, with no basement. The appellee was a tenant of a portion of the first floor, consisting of one large room, 137 feet 7 inches on Lombard Street, with a depth of 50 feet. It held this under a lease from the appellant dated July 1 1948, but had first gone into possession of the premises on December 8, 1944, under the assignment of an earlier lease from the former owner of the premises. Appellant acquired the premises from the former owner on May 9, 1945. Appellee had therefore been in continuous possession of its portion of the premises since 1944. The current lease provided that the premises should be occupied only for storage of empty bottles and cartons and the landlord, by an added typewritten clause, was not obligated to furnish heat.

The second floor space immediately above that occupied by the appellee was occupied also as a tenant by the William Schluderberg-T. J. Kurdle Company, referred to in the record as 'S-K'. This company had been in continuous possession since June, 1944, under successive yearly leases which provided for occupancy for the storing of merchandise and also contained the typewritten clause that the landlord was to furnish no heat. The first floor space adjoining that of the appellee was occupied by the Filter Service Company, also a tenant of the defendant. This company made use of water in its premises.

The city water line entered the building in the southwest corner of the premises occupied by the appellee. At a point about four to six feet from the point of entrance and in the premises occupied by the appellee was the main valve on the two-inch water line which extended vertically from the entrance line to the second floor. This main valve permitted the turning off of the water in the tntire building. There was no wheel on it, and it could be operated only by a wrench. Below the main valve was a 3/4 inch line extending horizontally from the main line and providing the means of carrying water to a lavatory in another portion of the premises occupied by the appellee. There was a turn-off valve in this line. Above the main valve was another 3/4 inch line which extended horizontally and carried water to the Filter Service Company. There was a turn-off valve in this line.

At the time of the mishap which caused the damage, the appellee used no water and had not used any since it took possession of the premises. The water line that ran to its lavatory had been disconnected at the valve, although by whom it is not known. On the S-K premises, about two feet above the floor, there was another valve which would disconnect the water from that portion of the building occupied by S-K. The water line leading from this valve had also been disconnected, but the evidence does not disclose any information as to when, or by whom, this was done. The main valve was not closed and this permitted not only water to pass through the 3/4 inch line to the Filter Company's property, but also to fill the vertical two-inch line up to the valve in the S-K premises on the second floor. On the night of December 27, 1948, the valve in the S-K premises burst as a result of freezing, and the escaping water came through the ceiling to the first floor and damaged the property of the appellee stored there. The appellee used this room in accordance with its lease for storage purposes only, and kept no employee there constantly, sending there only when this became necessary in its business. The accident occurred during the Christmas holidays, and it appears from the record that the minimum temperature on December 25 was 17~, on December 26 was 15~, and on December 27 was 17~. Christmas day in 1948 came on Saturday, and the Filter Company, which was the only tenant of the building using water, had been closed down since Friday, the day before Christmas, through Monday the 27th, so that the escaping water was not discovered until the morning of Tuesday the 28th,...