Craddock v. Greenberg Mercantile, Inc.

• Decision Date: 14 January 1957
• Docket Number: No. 2,No. 45264,45264,2
• Citation: 297 S.W.2d 541
• Parties: Humphrey R. CRADDOCK, V. Isabel Craddock and Humphrey R. Craddock, Administrator of the Estate of Julia Craddock, Deceased, Appellants, v. GREENBERG MERCANTILE, Inc., Charles Patterson and John S. Tompson, Respondents
• Court: Missouri Supreme Court

Page 541

297 S.W.2d 541

Humphrey R. CRADDOCK, V. Isabel Craddock and Humphrey R Craddock, Administrator of the Estate of Julia Craddock, Deceased, Appellants, v. GREENBERG MERCANTILE, Inc., Charles Patterson and John S Tompson, Respondents.

No. 45264.

Supreme Court of Missouri, Division No. 2.

Jan. 14, 1957.

Curtis J. Quimby, Jefferson City, Latney Barnes, Mexico, for appellants.

Jackson A. Wright, Fry, Edwards & Wright, Mexico, for respondents Greenberg Mercantile, Inc. and Charles Patterson.

Hunter, Chamier & Motley, Moberly, for respondent, John S. Tompson.

EAGER, Presiding Judge.

In this action plaintiffs sought damages totalling $68,700 for the destruction of a building and its contents by fire which they claimed resulted from the negligence of defendants in the maintenance, repair and operation of an oil furnace in an adjoining building. The parties will be referred to as they appeared below, the appellants as plaintiffs, and the respondents as defendants. The trial resulted in a hung jury, but the court sustained the after-trial motions of all defendants for judgment in accordance with their motions filed at the close of all the evidence, thereby awarding judgment to the defendants. This the trial court may do. Section 510.290 RSMo 1949, V.A.M.S. Plaintiffs have appealed.

Defendant Greenberg Mercantile, Inc. was the exclusive occupant of, and in control of, the two-story building in which the fire started, and which adjoined the building of plaintiff Humphrey Craddock; the former building was commonly known as the 'Brokerage' building; it was located on the east side of the square in Mexico, Missouri. Defendant Patterson was the manager of Greenberg Mercantile, Inc. Defendant Tompson had been in the heating and plumbing business in Mexico for over 12 years, and he had, shortly before the fire and at the request of the other defendants, serviced the furnace in the basement of the 'Brokerage' building; that furnace is the primary source of the present controversy. Plaintiff Humphrey Craddock owned the building adjoining on the south and its principal contents, which were substantially destroyed in the same fire; the other two plaintiffs owned small amounts of personal property also located in that building. In their third amended petition plaintiffs charged negligence against defendants Greenberg Mercantile, Inc. and Patterson as follows: that they allowed the furnace to become and remain defective and unsafe, in that there was no adequate draft, that the oil burner 'slobbered' or 'dribbed' excess oil and permitted unignited oil to accumulate, and that inflammable material was stored nearby in the basement; and that, nevertheless, they continued to operate the furnace under such conditions. As to defendant Tompson, plaintiffs charged: that he was employed on and prior to January 19, 1952, to inspect and repair the furnace, that he then discovered that the draft was 'probably' inadequate, that the oil burner 'slobbered,' that oil had accumulated in the bottom of the furnace, that sooting had occurred and ignition was impaired, and that oil had soaked into the wooden flooring; it was further charged that he did not discover the causes and details of these conditions, negligently failed to correct them, and negligently failed to give adequate warning of the defects, or to shut down the operation of the furnace, although he did warn the other defendants that the furnace should only be operated moderately and in the daytime, and that it should be moved to another location. It was further alleged that defendants Greenberg and Patterson negligently disregarded such warnings as were given, and that all such combined negligence resulted in an explosion and the resulting fire. The answers, insofar as they concerned all questions of negligence, causation and damage, consisted of denials.

At about 2:00 a. m. on January 21, 1952, fire was discovered in the basement of the 'Brokerage' building and promptly reported. That building was a two-story store building, approximately 21 feet wide, north and south. The depth of the building ran east and west, with the front facing the square and the rear on an alley. The basement was at the rear, consisting of a space extending approximately 24 feet, 4 inches, east and west, by 21 feet north and south. The Craddock building, adjoining on the south, had the same depth and approximately the same height; it was used as a retail store for the sale of school and office supplies and stationery. It contained two floors and a full basement, with an elevator at the rear, and a 'penthouse' on the roof housing elevator equipment. Since it is substantially conceded that the fire started in the basement of the 'Brokerage' building, it will be necessary to describe in more detail the premises and equipment. The basement floor was of wood; the floor above was supported by wooden 2 X 10 inch joists; the only door to the basement was from the alley, and it was located at the rear on the southeast corner. At a location a few feet from the rear wall, and a little more than 7 feet from the south wall, sat the oil-burning furnace on rows of bricks; the smoke-pipe from this furnace ran at an angle southwesterly to a chimney in the south wall, so that its total length was about 9 feet, rising a little as it neared the chimney. From this smoke-pipe a short 'T' pipe protruded at right angles to the main pipe, and in a general northwesterly direction; this was located near the furnace. In the opening at the end of this 'T' had been inserted a 'barometric damper,' which is the particular source of much of the controversy here. This is a metallic object, having a frontal circular rim approximately 10 inches in diameter with a slight flange, and a depth of 1 1/4 inches, which permits it to slide into and be held in the open end of the 'T' pipe by friction. Inside the circle of the rim is a flat metallic disc, so hinged that it may move to open or close; this, in turn, is fitted with counterweights which permit the aperture to be opened and closed as the existing draft in the smoke-pipe indicates. Two thin, flat wings extend to the rear from the frontal rim, completing the construction. The damper was held in place merely by friction, plus, perhaps, a slight elevation of the 'T' pipe. The 'T' pipe was located substantially in a line between the basement door and the northwest corner of the basement.

On January 16, 1952, Mr. Tompson was called by the other defendants to service the furnace in their basement; the particular complaint was of 'no heat.' At this point it is necessary to describe the furnace in more detail. Its four sides were rectangular, the outside walls being of steel; inside there was a steel casing, more or less cylindrical in shape; in the lower part was the separate combustion chamber of heavy stainless steel; the upper space was called the 'heat exchanger'; it contained baffles and its outer wall was compressed into 'fins' or corrugations to permit better heated air circulation. The burner itself was comprised of a motor, a fan, an oil pump and an oil pipeline, with suitable coverings; the fuel oil was pumped under pressure to a nozzle, which then sprayed it into the combustion chamber. Electrodes, located almost immediately in front of the nozzle, supposedly ignited the spray when it was started, and a conical or egg-shaped flame was thus blown into the combustion chamber, and, in turn, the heated air passed into the 'heat exchanger' and on into the circulation. An ordinary thermostat on the floor above automatically effected an electrical connection and turned on the burner when needed. Just back of the furnace on the smoke-pipe was located an electrically controlled 'stack-switch' also described as a 'protector relay'; this had two functions: (a) to allow a sufficient time between operations of the burner to permit the furnace to 'purge,' by preventing a reignition; and (b) to shut the burner off automatically if the oil spray did not ignite and produce a certain temperature within a given time (here 90 seconds according to most of the evidence) after the motor and pump were started. After such a shut-off the switch had to be reset manually. There was no evidence in the case that this switch was not in proper operating condition.

When Mr. Tompson examined the furnace, he found that it had been turned off by the stack-switch. By his evidence and that of two others (one an electrician who assisted him, and the other a man also engaged in the heating and plumbing business who observed part of the operations in question) the following facts were shown, all as a part of plaintiffs' case: the furnace was started and it was found that it was not firing well; the nozzle was found to be 'dribbling' a little fuel oil when the burner shut off; there was perhaps a teacup full of oil in the bottom of the furnace, which was cleaned out; the nozzle was slightly encrusted and a new one, somewhat smaller and of the prescribed size, was substituted; the electrodes were cleaned, and the electric controls were checked by the electrician whom Mr. Thompson called; the furnace and the smoke-pipe were cleaned with a suction-type furnace cleaner, in which process the pipe was taken down and reassembled; the furnace and pipe were only normally sooty. Mr. Tompson spent all morning on this job and came back to observe the furnace and burner in the afternoon. When the job was completed the burner was, according to all three of these witnesses, operating satisfactorily, with a good flame and a sufficient draft, and it was coming on and shutting off properly, as indicated; these men testified that experienced observation is the method generally used in the field in such instances to determine the operating condition of the burner, without technical tests. Mr. Tompson testified that the services enumerated should have stopped the dribble of excess oil. He recommended to the defendant Patterson...