Field v. Dowling

• Decision Date: 06 December 1938
• Docket Number: No. 24799.,24799.
• Citation: 122 S.W.2d 30
• Parties: FIELD v. DOWLING.
• Court: Missouri Court of Appeals

122 S.W.2d 30

FIELD v. DOWLING.

No. 24799.

St. Louis Court of Appeals. Missouri.

December 6, 1938.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be published in State Reports."

Action by Mary Field, administratrix of the estate of Leo Field, deceased, and another, against John J. Dowling to recover the amount of a judgment, costs, and attorney's fees which the plaintiffs were compelled to pay by reason of defendant's negligence. From a judgment for plaintiffs, defendant appeals.

Affirmed.

James J. McMullen and R. L. Ailworth, both of St. Louis, for appellant.

Harry S. Gleick and Tobias Lewin, both of St. Louis, for respondents.

SUTTON, Commissioner.

This suit was instituted before a justice of the peace, whence it went on appeal to the circuit court. In the circuit court, upon the suggestion of the death of Leo Field, the suit was revived in the name of Mary Field as administratrix of the estate of Leo Field. At the trial in the circuit court Erwin Field was by order of the court joined as an additional party plaintiff. The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $272.35. Defendant appeals.

The petition, or statement, filed with the justice alleges that during the year 1926 plaintiff was the owner of certain premises in the City of St. Louis and known and numbered as 913 South Sarah Street; that plaintiff employed defendant as a real estate agent to manage and rent said property; that one L. W. Simpson was during the latter part of December, 1926, the occupant of the first floor of said premises; that the second floor of said premises was vacant but under the control of said defendant; that defendant negligently failed to turn off the water on the second floor of said premises although said second floor was unheated; that as a result thereof the water pipes froze and burst and water seeped through to the premises of said L. W. Simpson. damaging the property of said Simpson; that as a result of such damage said Simpson filed suit against said plaintiff herein for $500 and costs; that judgment was rendered against plaintiff herein in said suit for $200 as damages and $22.35 as costs, which plaintiff herein paid, and that plaintiff herein was compelled to pay the sum of $50 for attorney's fees in defending said suit as defendant failed to defend the same, aggregating $272.35 paid by plaintiff herein, for which amount judgment is prayed.

Defendant complains here of the action of the court in granting leave to amend the petition by joining Erwin Field as an additional party plaintiff, and in refusing his instruction in the nature of a demurrer to the evidence.

The evidence shows that Erwin Field purchased two four-family flats located at 907-9 and 913-15 South Sarah Street, St. Louis. The title was originally taken in the name of Max Raskin, but was thereafter transferred by Raskin to Erwin Field's father, Leo Field. At the time of the purchase of the property Erwin Field negotiated with the defendant for second deeds of trust on the properties, and these negotiations led to the execution of a second deed of trust on each of the properties. It was agreed between Erwin Field and defendant at the time the deeds of trust were executed that defendant should have an assignment of the rents, and should have full charge and control of the properties, and look after the rents, vacancies, repairs, and everything pertaining thereto. It appears that it was the custom among real estate agents managing properties with assignments of the rents to turn off the water and drain the pipes in vacant premises during the winter months, so as to prevent freezing water from bursting the pipes. Defendant undertook the management of the properties at 907-9 and 913-15. At the end of each month he sent Erwin Field a statement showing the income received and disbursements made in connection with the properties. In December, 1926, the second floor of the flat at 713 was vacant, and the water not being turned off froze and burst the pipes, so that the water seeped through and ran down into the first floor of the flat and caused damage to the furniture and carpets of L. W. Simpson, the tenant on the first floor. The suit of L. W. Simpson against Leo Field resulted in a judgment for said Simpson against said Field for $200 as...