DeLong v. Broadston
| Citation | 272 S.W.2d 493 |
| Decision Date | 01 November 1954 |
| Docket Number | No. 22022,22022 |
| Parties | Harvey DE LONG and Georgla DeLong, Respondents, v. Gerald A. BROADSTON and Albert A. Bowers d/b/a All Surface Heating Company, and Frank Willoughby, Appellants. |
| Court | Missouri Court of Appeals |
Lewis Sanders, and McCann & Sanders, Kansas City, for appellants.
Rogers, Field & Gentry, James W. Benjamin, Ben L. Clardy, Kansas
City, David J. Dixon, Platte City, for respondents.
SPERRY, Commissioner.
Plaintiffs, Harvey and Georgia DeLong, were the owners of an apartment house located at 425 Prospect, Kansas City, Missouri. They entered into a written contract with defendants, Broadston and Bowers, d/b/a All Surface Heating Company, whereby defendants agreed to install a gas burner in plaintiffs' steam boiler. Defendants authorized and directed the Willoughby Brothers to complete installation and adjustment of the burner. Plaintiffs sued defendants and the Willoughby Brothers, alleging breach of the contract and resulting damages to their apartment house. The action was dismissed as to one of the Willoughbys. Plaintiffs had a verdict and judgment against Broadston and Bowers and Frank Willoughby, in the sum of $3,900. Defendants moved for a new trial but, upon plaintiffs' remittitur of $400, the motion was overruled, and final judgment was entered for $3,500. Broadston and Bowers appealed.
It is urged that plaintiffs failed to make a submissible case because their evidence regarding the cause and extent of their damages was founded on conjecture and guess. In ruling this point we must view plaintiffs' evidence in the light most favorable to them, draw all reasonable inferences therefrom in their favor, and disregard defendants' evidence except as it may aid plaintiffs' case. Sowers v. Howard, 346 Mo. 10, 139 S.W.2d 897, 901; Burris v. Kansas City Public Service Company, Mo.App., 226 S.W.2d 743, 749. If the evidence is reasonably susceptible of two inferences, one favorable to plaintiff and the other unfavorable, and reasonable men may differ in their interpretation thereof, we are bound by the verdict of the jury.
Plaintiffs founded their action on a written contract executed by defendants Broadston and Bowers, whereby the latter agreed to install a gas burner equipped with automatic controls in plaintiffs' boiler, and to do same in a workmanlike manner. The contract was pleaded, was placed in evidence, and was not questioned in any way by defendants. It was dated September 30, 1950.
Mr. DeLong testified to the effect that plaintiffs purchased the property here involved in May, 1950; that, at that time, the plaster, paper, paint and floors of the four apartments in the building were in good condition, and remained in good condition until the occurrence hereinafter mentioned; that, on October 3, 1950, Mr. Martin came out and installed a gas burner in the steam boiler which had, heretofore, been fired with coal; that, after the burner was installed, it was lighted but failed to heat the house; that, about a week later, witness reported the failure to get heat; that no controls were placed on the first burner but a thermostat was placed in an apartment; that, about November 1, the burner was removed because the tenants complained that they got no heat; that a Mr. Hammond installed a second burner, which was larger than the first; that it failed to heat the building; that, eventually, about December 7, Mr. Willoughby came, looked at the burner, and said a larger burner was needed, and more gas; that the next day, about 7:30 p. m., the Willoughby Brothers installed a burner; that they welded a blower onto the burner and had it going; that witness asked Mr. Willoughby when he would complete the job and he said he would be back in the morning to finish putting on controls; that witness said: 'Are you going to leave that thing burning, like that, without any controls on it?'; that Willoughby said: 'We will turn it down manually, so it will be safe'; that it would be 'Okay'; that witness and his wife then left the basement while the Willoughbys were still there; that there was some steam in the boiler.
Mr. DeLong stated that, when he returned to the basement, at 10:00 the next morning, he found the boiler cold, the gas was not burning, and water was on the floor; that Mr. Willoughby came soon and told him that the boiler had burst. Witness said that the boiler was cracked in the upper half dome part; that the boiler was not cracked when he left the basement the night before; that, about a week later, he had Mr. Wells, a boiler man, look at the boiler; that he installed a new boiler; that the burner and old boiler were then in the same condition they were in on the Saturday morning that Willoughby was last there; that the old boiler was a total loss.
Mr. Wells stated that when he first saw the heating equipment there was a snap action valve, fastened wide open, on the burner, and no automatic controls hooked up; that this was a low pressure boiler, made to operate on not to exceed four pounds of steam; that the snap action valve was manually fixed in such a position that the gas would be on full force at all times, whether or not there was water in the boiler, and regardless of the steam pressure; that a hot water control will not operate on a steam boiler, and would not control the gas; that it would continue to generate steam and, if the boiler were half full of water, as Mr. DeLong stated that it was, it would take seven or eight hours to boil the water all out; that when he first saw the boiler it had two cracks, one crack from ten to twelve inches long; that the cracks were caused by the water being evaporated out of the boiler, and water seeping back into the boiler from the radiators and coming into contact with the 'red hot' boiler; that, after the steam pressure had gotten somewhere above ten or twelve pounds, it would blow the pressure valves out of the radiators, permitting steam to go out into the rooms where the radiators were located. He stated that he installed a new steam boiler for a total cost of $485.
Plaintiffs produced the testimony of Mr. Reed, who stated that he had rented the entire house for a period of eight years prior to plaintiffs purchasing it; that it had been redecorated within about eighteen months prior to its purchase by the DeLongs; that the plaster, paper, paint and floors were in good condition; that the boiler was in good condition; that he moved from the house about a month or six weeks after plaintiffs bought the place.
Mr. Sumpter stated that he lived in one of the apartments in the house from September, 1950, until February, following; that on the night the trouble with the boiler occurred he was in his apartment, reading;...
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