Gaines v. Property Servicing Co.

• Decision Date: 10 January 1955
• Docket Number: No. 1,No. 43988,43988,1
• Citation: 276 S.W.2d 169
• Parties: Elwood GAINES, Respondent, v. PROPERTY SERVICING COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 169

276 S.W.2d 169

Elwood GAINES, Respondent, v. PROPERTY SERVICING COMPANY, a Corporation, Appellant.

No. 43988.

Supreme Court of Missouri, Division No. 1.

Jan. 10, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

March 14, 1955.

Alexander & Robertson, L. A. Robertson, E. E. Baker, St. Louis, for appellant.

Barnhart, Wood & Bransford, Joseph A. Rogers and C. V. Barnhart, St. Louis, for respondent.

DALTON, Presiding Judge.

Action for damages for personal injuries sustained on April 24, 1952, as the result of a fire in defendant's three story apartment building which was not equipped with a fire escape as required by Chapter 320, Section 320.010 et seq., RSMo 1949, V.A.M.S. Verdict and judgment were for plaintiff for $18,500. Defendant has appealed.

Plaintiff and one Clara Burns had rented and occupied for some two years an apartment consisting of one room and a kitchenette on the third floor of a five family apartment building owned and operated by defendant and located at 103 N. Channing Avenue in the City of St. Louis. The apartment was at the front (east part) of the building. Another tenant, Pearl Hodges, occupied an apartment on the same floor at the rear (west part) of the building. There were two apartments on the second floor and one on the first floor, the latter being occupied by Roosevelt Haley and his wife. The building was over fifty years old. There was no evidence as to when it was built, or when it was changed from a single family to a multiple dwelling. There was no evidence that the building had been rebuilt or altered. The defendant had owned the building for some time prior to the date of the fire, but, since it acquired the property, no alterations had been made. A wooden stairway located along the north wall of the building led up from a front vestibule near the northeast corner of the building to the third floor at a point near the entrance to plaintiff's apartment. A hallway extended west from the top of the stairs to the apartment of Pearl Hodges at the rear of the building. There was no fire escape on the outside of the building and no brick or concrete fire escape inside the building. There was no access to the upper floors of the building except by the one wooden stairway.

About 5:30 p. m., April 24, 1952, plaintiff and Clara Burns were in their apartment and Pearl Hodges was in hers. Clara Burns then left her apartment and went down the stairs to a point between the first and second floors. At that time she saw Roosevelt Haley with a five gallon coal oil can sprinkling a fluid about his apartment and over the hallway on the first floor. The fluid was burning and she last saw Haley backing up the hallway as he sprinkled the fluid about. She promptly notified the tenants on the second and third floors. Pearl Hodges, when first warned of the fire, came to plaintiff's apartment, but later returned to her own. Plaintiff came out of his apartment, saw the fire and then with Clara Burns, re-entered their apartment. There was no other place to go, the whole stairway was in flames and the fire and heat were coming up the stairs and hallway. One could not see the second floor for the flames. The draft from an open front door was carrying the fire rapidly up the stairs. Plaintiff knocked the window glass out of a window in the kitchenette of his apartment and, when the fire reached the kitchenette and plaintiff received burns on his body and left arm he and Clara Burns were forced to jump from the open window onto the roof of an adjoining one story building. Both sustained serious injuries.

Most of the fire was concentrated in the front of the building and went up the stairway and stairwell to the third floor. The stair bannisters were burned off, the steps charred, the rooms on the third floor were damaged by fire and about half the roof of the building was destroyed. Roosevelt Haley was indicted and tried and, later, pleaded guilty to setting the building afire and received a sentence to the state penitentiary.

Appellant first contends that 'the court erred in overruling defendant's request for a directed verdict at the close of all the evidence because the evidence fails to show that the negligence charged against defendant was a proximate cause of plaintiff's injuries.' Appellant argues that 'plaintiff's evidence established defendant's negligence as a condition or remote cause of plaintiff's injury'; that 'the intentional, wrongful, criminal act of a responsible human agency constituted an independent efficient intervening cause of plaintiff's injuries, breaking the chain of causes between the negligence charged against defendant and plaintiff's injuries'; that 'the negligence charged against defendant and the wilful, intentional, criminal act of a third person in setting fire to the building were not joint and concurrent causes of plaintiff's injuries'; that 'defendant could not reasonably have anticipated the wilful, intentional, criminal act of a third person in setting fire to the building in question'; and that 'the fact that defendant could not reasonably anticipate the wilful, intentional, criminal act of a third person in setting fire to the building rendered the negligence charged against defendant remote and not a proximate cause of plaintiff's injury.'

Appellant further argues that 'plaintiff's evidence shows that the act of negligence charged against defendant (failure to provide a fire escape) could not cause plaintiff's injury alone'; that 'the injury to plaintiff herein resulted directly from the intervening intentional criminal act of one Haley in setting fire to the building'; and that 'the conduct of this defendant did not in any manner induce or bring about the wrongful act of the third party.' Appellant says that, 'while defendant could have anticipated that the building might be ignited and burned as a result of the inadvertent carelessness of some person, or due to defective wiring, or any of the causes that usually and customarily cause fires in buildings, defendant could not have foreseen or deemed it probable that a third person would maliciously or wantonly set fire to the building as was done in this case.'

Appellant relies upon the general rule stated in 38 Am.Jur. 728, Negligence, Sec. 71, as follows: '* * * that when, between negligence and the occurrence of an injury, there intervenes a wilful, malicious and criminal act of a third person which causes the injury but was not intended by the negligent person and could not have been foreseen by him, the causal chain between the negligence and the accident is broken. Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, any more than a particular act by this or that individual. * * *' And see Sira v. Wabash R. Co., 115 Mo. 127, 21 S.W. 905, 907; Wecker v. Grafeman-McIntosh Ice Cream Co., 326 Mo. 451, 31 S.W.2d 974, 977; De Moss v. Kansas City Rys. Co., 296 Mo. 526, 246 S.W. 566, 567; Wood v. Wells, Mo.Sup., 270 S.W. 332, 336; Kennedy v. Independent Quarry & Construction Co., 316 Mo. 782, 291 S.W. 475, 476, 481.

Respondent, on the other hand, relies upon an exception to the general rule as follows: '* * * it is universally agreed that the mere fact that the intervention of a responsible human being can be traced between the defendant's wrongful act and the injury complained of will not absolve him. For example, a defendant is not relieved from liability by the fact that the direct and immediate cause of the injury to the plaintiff was the act of a third person, where the defendant was in duty bound to protect the plaintiff against an injury from that source. The test of the sufficiency of an intervening cause to defeat recovery for negligence is not to be found in the mere fact of its existence, but rather, in its nature and the manner in which it affects the continuity of operation of the primary cause, or the connection between it and the injury.' (Italics ours.) 38 Am.Jur. 722, Negligence, Section 67.

In the case of Shafir v. Sieben, Mo.Sup., 233 S.W. 419, 423, 17 A.L.R. 637, this court said: 'Sometimes courts have held that the intervention of an independent agency in the actual infliction of the injury breaks the causal connection between the original wrong and the infliction of the injury, so that the first wrongdoer escapes liability for the indirect result of his unlawful act. The fact that the latter is sometimes negligent in the final act is often dwelt upon as a reason for this interpretation in specific cases, but it is difficult to understand this reasoning in cases where the original act was an unlawful one and actually contributed to the unfortunate result.' (Italics ours.)

After reviewing many cases the court reached the following conclusion: 'From these and many other Missouri cases bearing more or less directly upon this point we consider the rule to be well established in this state that where the direct and immediate cause of the injury, although the independent act of a third person, belongs to a class against which the defendant is legally bound to protect the plaintiff as one of the general public, defendant will be liable in damage for such injury for his failure to afford such protection.' And see Ward v. Ely-Walker Dry Goods Building Co., 248 Mo. 348, 154 S.W. 478, 45 L.R.A.,N.S., 550; McWhorter v. Dahl Chevrolet Co., 229 Mo.App. 1090, 88 S.W.2d 240, 247; Henry v. First Nat. Bank of Kansas City, 232 Mo.App. 1071, 115 S.W.2d 121, 126, 127, 128, 129.

In view of the facts shown by this record, the rule stated in the Shafir case is applicable here. In the trial court the defendant admitted that Section 320.010 RSMo 1949, V.A.M.S., requiring fire escapes under certain circumstances, was applicable under the facts of this case and appellant, in this court, admits that 'under the law...