Goldman v. White & Davis Inv. Co.

• Decision Date: 26 January 1931
• Docket Number: No. 17061.,17061.
• Citation: 38 S.W.2d 62
• Parties: MAX GOLDMAN, DEFENDANT IN ERROR, v. WHITE & DAVIS INVESTMENT CO., PLAINTIFF IN ERROR.
• Court: Missouri Court of Appeals

38 S.W.2d 62

MAX GOLDMAN, DEFENDANT IN ERROR, v. WHITE & DAVIS INVESTMENT CO., PLAINTIFF IN ERROR.

No. 17061.

Kansas City Court of Appeals. Missouri.

January 26, 1931.

Error to the Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.

AFFIRMED.

J. Francis O'Sullivan and O.H. Stevens for defendant in error.

Maurice J. O'Sullivan of counsel.

Ringolsky, Boatright & Jacobs for plaintiff in error.

ARNOLD, J.

This action was brought to recover damages to plaintiff's property, alleged to have been due to negligence of defendant.

The suit originated in the court of a justice of the peace of Kaw Township, Jackson County, Missouri, by filing therein an instrument entitled "Statement for Damages," which recited the defendant is a corporation organized and existing under the laws of Missouri; that at the times mentioned it was the owner or lessee in possession and in charge of the Lee Building at Tenth and Main Streets in Kansas City, Missouri; that plaintiff, at the times mentioned was a tenant of said building, under a lease, occupying offices on the seventh floor thereof, and in particular, roof 736; that under the terms of the rental contract between the parties, defendant was to furnish janitor service and heat, and was to have free access to the office of plaintiff for such purposes; that on or about January 15, 1925, during the night, after said office was closed and plaintiff and his employees had all left the building and said offices were under the control of defendant, and due to the negligence and carelessness of defendant, steam and hot water, a part of the heating apparatus in said building, was caused, allowed and permitted to escape in said room numbered 736, causing damage to plaintiff as set out in an itemized list incorporated in said statement, amounting to $450 in total, and judgment was asked in that amount.

Plaintiff had judgment in the justice court for $450, and defendant appealed to the circuit court where the cause was tried to a jury, resulting in a verdict and judgment for plaintiff for the same amount. A motion for new trial was overruled and defendant appealed. The appeal was later dismissed and the case is here for review on a writ of error. There appears to be no dispute as to the material facts in the case and the contest is as to the application of the law to the facts.

The facts of record are that plaintiff is a physician and surgeon; that for some years prior to the occurrence giving rise to this suit, he had occupied, under lease, the quarters here involved, consisting of several rooms, one of which is described as a large room. Sometime during the autumn of 1924, the tenant desired to have said large room partitioned to make two rooms. The lessor gave permission for the change, providing it was done at the expense of the lessee and by someone then in defendant's employ, and the change was accordingly made. The testimony shows that during the course of the work it was determined by defendant's employee making the alterations that it was necessary or advisable to remove a large rediator then in said room. The said alterations were made at a time when no heat was being used in the building, and on notice from the employee doing the work, the engineer of the building removed said radiator. After the partition was completed, defendant's said engineer placed a smaller radiator in each of the two newly made rooms. After heat in the rooms became necessary, plaintiff decided that as there was a large "riser pipe" in the room in question, a radiator was not necessary. One of the rooms made by the partition was used by plaintiff as a consultation room. On repeated requests of plaintiff, defendant was asked, through its engineer and secretary and treasurer, to remove the small radiator from plaintiff's consultation room.

About two months prior to the occurrence giving rise to this suit, defendant's engineer removed said radiator, in accordance with plaintiff's prior requests, leaving the valve regulating the control upon the end of the pipe; and a short bit of pipe extending out of the end of the valve was left with no cap or plug thereon, so that if the valve were either turned or jarred, the steam, or condensed water, would issue therefrom. The testimony shows that on two or three occasions prior to the happening complained of, plaintiff or his secretary noticed a small amount of steam escaping from the open end of the pipe, or that drops of water fell therefrom upon the carpet, as a result of condensation of steam emitted as stated. Upon each of these occasions plaintiff's secretary tightened the valve, stopped the leak and immediately notified defendant about it; and on three or four occasions prior to January 9 or 10, 1925, when the damage occurred, defendant, through its officers and engineer, promised to cap the open end of the pipe. The testimony shows the damage occurred on January 9 or 10, 1925, which is some five days prior to the date charged in the statement of damages filed in the justice court; but as there is no point made of this, we need not consider it.

On January 9 or 10, plaintiff and his associates in the office, except his secretary, left the office by six o'clock, as they testified, and no steam was then escaping from the offending pipe. Plaintiff's secretary, Miss Hobart, remained at the office until ten o'clock. She testified there had been no steam escaping that day. On this point Mr. White, president of defendant corporation, testified the steam in the building, except that supplying the drug store on the ground floor which was controlled by a separate valve, was turned completely off at six P.M.

The testimony shows that during the night defendant's janitors cleaned the rooms in the building at a time when there was no steam turned on. One of these, known as the vacuum man, used a vacuum sweeper in the cleaning process and another dusted the rooms. It is shown the open-ended pipe was beside the north wall of the consultation room and plaintiff's desk was so placed that one end of it almost abutted the valve and pipe mentioned, so that the valve was protected from the sight of a person in the room and also from being accidentally struck. The vacuum sweeper used was so constructed that it could be shoved around and under the sanitary desk and near the valve in question. The testimony shows the desk had been dusted by defendant's janitor during the night. The vacuum man, testifying for defendant, stated he did not know whether he was working at that time or not, and did not know whether he was in plaintiff's office on the night in question. This witness testified that the vacuum sweeper was arranged with a bend on the end thereof so that he could shove it under the desk in question for cleaning purposes, and that the bend was such that the height of the cleaner from the floor could be regulated from the handle thereof.

Plaintiff's evidence shows that on the opening of the office about nine o'clock, following the night in question, the consultation room was filled with steam, some of which had found its way into the reception room. A dentist who occupied an adjoining office went into the consultation room and turned off the valve which he found open. Defendant was notified and its agent immediately went to the room in question. The testimony shows water was dripping from the ceiling; that all the furniture and furnishings were soaked and plaintiff's dyelectron machine, used to treat patients, was short-circuited and rendered dangerous to use and had to be rebuilt; and the furniture turned white in color. The testimony shows that plaintiff's expense in repairing and replacing the articles damaged and destroyed was $450.

Plaintiff introduced as an expert witness a heating engineer of large experience who testified that the pipe could easily and successfully have been capped, and this should have been done; that the usual way of taking off a radiator from the steam line is also to remove the valve and place an iron cap on the end of the pipe, and that it was not customary to leave the valve on the end of the pipe, because the least jar or vibration on the pipe was liable to open the valve.

John Lawson, testifying for defendant, stated he was employed as vacuum man in the Lee building on the night in question, and it was his duty, as such employee, to clean the carpets in all the offices in the building; that he would start at six and be through at three o'clock in the morning; that the pipes leading to the radiators are at least three inches above the floor; that there is a valve between the pipe and the radiator which is turned off to shut off the steam; that no part of the vacuum sweeper could strike the valve in such a way as to turn on the steam.

The lease, under the terms of which plaintiff was occupying the rooms in question, was introduced in evidence and is a part of the record.

There is but one assignment of error and this is presented under three sub-headings. The charge is that the court erred in refusing defendant's request for a peremptory instruction in the nature of a demurrer at the close of plaintiff's case and again at the close of all the evidence, because (a) the provisions of the lease expressly relieve defendant from liability for any damage caused in the manner alleged and proved by plaintiff; (b) the landlord, under a lease providing he shall make repairs, cannot be held liable in tort for damage to plaintiff's person or property for negligent failure to repair, such damage being too remote; and (c) under plaintiff's case, he was guilty of contributory negligence as a matter of law.

Under subdivision (a) of this charge, it is urged a landlord may legally contract against liability for damage caused to the person or property of a tenant by the negligence of the landlord. From this statement of what defendant conceives to be the law, it is argued that if a landlord can contract against and limit his liability for...