Eberson v. The Continental Investment Co.

• Decision Date: 31 March 1908
• Citation: 109 S.W. 62,130 Mo.App. 296
• Parties: EBERSON, Respondent, v. THE CONTINENTAL INVESTMENT COMPANY, Appellant
• Court: Missouri Court of Appeals

109 S.W. 62

130 Mo.App. 296

EBERSON, Respondent, v. THE CONTINENTAL INVESTMENT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 31, 1908

Appeal from St. Louis City Circuit Court.--Hon. Robt. M. Foster Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Lee Sale for appellant.

The court erred in permitting plaintiff to refresh his memory from the memorandum made by Messrs. Fritsch and Purdy. The memorandum was of facts of which the witness had no independent recollection, and he could not therefore have testified to the facts as matters of recollection. His testimony in this respect was the veriest hearsay. Rose v. Rubeling, 24 Mo.App. 369.

S. T G. Smith and Thos. S. Meng for respondent.

OPINION

GOODE, J.

--In the summer of 1902, plaintiff was a tenant of the defendant company, occupying a double brick building Nos. 901, 903 North Second Street in the city of St. Louis. The premises were used by plaintiff for a paint factory and for the sale of paints. The lease provided, among other things, that defendant should keep the building in good condition and in the event of partial destruction by fire should speedily restore it to as good condition as it was in previously. The stipulation especially included an agreement on the part of defendant to keep the roof in good order. On June 13, 1902, the roof was destroyed by fire to an extent that exposed the contents of the building, including plaintiff's paint and other merchandise, to the elements. Defendant employed a firm of contractors, Hogg & Reid, to make permanent repairs to the damaged roof. The fire had burned about an elevated skylight or cupola with glass sides, destroying that portion of the roof and a space around the skylight; perhaps a strip of roof about twelve feet long and as wide. Part of the remainder of the roof was so charred that it had to be torn away and reconstructed, and so the contractors removed a space sixty feet long and extending over the width of the building. Plaintiff swore his goods suffered very little damages from the fire, practically none; because the Salvage Corps of the City Fire Department spread tarpaulins over his property and protected it from water thrown by the fire engines. But on a previous trial he had given testimony that considerable damage was sustained by the first fire in consequence of advertising matter being totally lost and cans being caused to rust. The goods were on the second floor and basement, according to the testimony, though we suppose the basement means the ground floor. As the fire was only in the roof, the goods were not burned and were, as said, practically undamaged by the water used in extinguishing the fire. It was raining heavily about the time, and plaintiff was apprehensive his property might be injured by a rain during the repairing of the roof. He had several conversations with Mr. Hogg, one of the contractors, in regard to whether his goods would be protected during the repair work and Mr. Hogg assured him they would be; that all requisite precautions would be taken to keep them from getting wet. Plaintiff's business was never checked after the fire, but he continued to carry it on without interruption, just as he had before, relying on the assurances of the contractor that proper precautions would be taken to keep the rain from getting into the building. During the night of June 27th, or the morning of the 28th, there was a very heavy and unusual fall of rain, accompanied by a high wind. This storm overcame the measures taken by the contractors to protect plaintiff's premises and the rain beat into the building, flooding it with water and seriously damaging plaintiff's property. The contractors had spread tarpaulins over the roof above plaintiff's office, which was on the second floor, but seem to have done nothing to protect the other portions of the building, depending on getting the roof constructed with sufficient rapidity to prevent damage. One of the contractors said it did not look like rain the evening before the damage was done, and it is obvious they took the risk of rain, but they assert plaintiff authorized this course. There was testimony of experts tending to prove that by taking proper precautions the rain could have been kept out of the building and plaintiff's property saved. The cause was here on appeal before and other facts may be found in the opinion then rendered (118 Mo.App. 67).

This action was instituted to recover for the damage done the property, on the ground of negligence on the part of defendant's agents, the contractors, in allowing the roof to remain in such a condition during the repair work that the property was exposed to the elements. The defense, besides a general denial of the averments of the answer, consisted of a plea that the contractors left a portion of the roof uncovered and unprotected with plaintiff's leave, license and consent, and that the rain which fell on his property came through the portion of the roof thus left unprotected; that plaintiff accepted the risk of whatever injury might result from leaving the roof open. There was another plea that the injury sustained was caused by plaintiff's own negligence contributing thereto, in that he allowed his property to remain in the building in such condition that it was exposed to the rain which fell on it. The issues were left to the jury which returned a verdict in plaintiff's favor for $ 2,725, and judgment having been entered in accordance with the verdict, defendant appealed.

After the damage occurred, plaintiff asked that the amount of loss be appraised, rather indicating at the time that he expected to hold the contractors responsible. One of defendant's officers, and also its agent who had charge of the property, were in favor of appraising the damage, and after some discussion between the parties, the contractors appointed an appraiser by the name of Fritsch and defendant appointed one named Purdy. An attempt was made to show Fritsch was appointed by defendant, but the evidence inclines the other way. It is true though that Dormitzer, defendant's agent, as well as Goodlove, its secretary, wanted an appraisement and Dormitzer told Fritsch that if neither the contractors nor the defendant paid him for his services, he (Dormitzer) would pay him. The two appraisers thus chosen went to the premises and plaintiff indicated in a general way what property had been damaged, pointing out portions of it. But in the main the different articles damaged were pointed out, not by plaintiff himself, but by his superintendent. Each of the appraisers made an itemized list of the property with an assessment of the damage done to the different classes, amounting in the aggregate to $ 2,671. These lists were copied, or another list made from them, in plaintiff's office and he swore he saw the latter list prepared. When he was on the stand testifying as to the amount of his damages, the court, over the objection of defendant, allowed him to refresh his memory from this list. Plaintiff testified he had no clear recollection, independent of the list, as to what property was damaged and had to refresh his memory from the list. It is assigned for error that plaintiff was permitted to use the list of damaged property made out by the appraisers to refresh his memory. The argument for defendant on this point is that as plaintiff did not point out all the different articles, but left that task mainly to his superintendent, and as plaintiff testified he had no recollection of what goods were injured without the aid of the list, his memory was really a blank on the subject and his testimony concerning the amount of damages was wholly hearsay--simply a reading to the jury of the articles found by the appraisers to have been injured, with their estimates of the loss to each class of articles. As said, the list from which plaintiff refreshed his memory was made up in this way: while the appraisers were looking through the stock, each made a memorandum of the damaged articles and the amount of loss. They came into plaintiff's office, where he was, with these memoranda, and from them they wrote out, in his presence, the memorandum which he used on the witness stand to refresh his memory. Plaintiff swore all he did was to point out to the appraisers a lot of goods that had been damaged, but his superintendent was with them more than he was. He swore further the memorandum thus made out was the only thing which enabled him to refresh his memory and he was simply testifying from the memorandum made by the appraisers as to what their conclusions were as to his damages. After thus testifying regarding his knowledge, or lack of knowledge, plaintiff took up, item by item, the articles listed on the appraisers' memorandum and testified as to the damage done to the different classes of goods. He reiterated the amounts set down by the appraisers; but supplemented this testimony on cross-examination, with the statement that they appraised the loss too low. Before proceeding further with this point, we will take up one which goes more directly to the merits.

Counsel for defendant insists his client is not liable for the damage done by rain to plaintiff's property and especially to property carried into the building after the fire. We think this question was adjudicated on the former appeal; but as it has been renewed and earnestly pressed, we have re-examined it with care. If defendant as landlord was bound to protect plaintiff as tenant against any loss from negligence in repairing the roof, the duty of protection would extend to any property which the exigencies of plaintiff's business of dealer in paints, might require him to have in the building while the roof was being repaired, and we do not...