Gralnick v. Magid
| Decision Date | 14 March 1922 |
| Citation | 238 S.W. 132,292 Mo. 391 |
| Parties | ABE GRALNICK v. NELLIE MAGID, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Karl Kimmel Judge.
Reversed and remanded (with directions).
M. U Hayden and Anderson, Gilbert, Wolfort & Ely for appellant.
(1) The court erred in setting aside the nonsuit, because under the terms of the lease the lessor was not liable to the lessees for any damage caused to his personal property by water or rain. (2) The court erred in sustaining the motion to set aside the nonsuit, because under the terms of the lease if the premises were untenantable in whole or in part the lease provides that the measure of damage should be a return or remitting of the rent. (3) The court erred in sustaining said motion, because the plaintiff cannot recover for any damages to his property when he permitted the same to stay in a building, the roof of which he knew had been damaged and was going to be repaired, and which he knew would not prevent rain from coming into the store where his property was located. Cook v. Soule, 56 N.Y. 423; Gavan v Norcross, 117 Ga. 359; Atkinson v. Kirkpatrick, 90 Kan. 519; Mershon v. Williams, 62 N.J.L. 785; Huber v. Ryan, 67 N.Y.S. 974. (4) The lessee is not exempted from payment of rent on account of the destruction of the premises by fire. Gibson v. Perry, 29 Mo. 245; O'Neil v. Flanagan, 64 Mo.App. 87; Sedalia Co. v. Swift, 129 Mo.App. 471; Burns v. Fuchs, 28 Mo.App. 279. (5) And the landlord was not bound to repair the premises after the fire. Rogers v. Paint Co., 118 Mo.App. 300.
John B. Reno for respondent.
(1) Plaintiff was entitled to go to the jury on the first count of his petition, which alleged the express undertaking of the landlord to repair within a reasonable time, his failure so to do, and the damage resulting therefrom as the proximate cause of such failure. Crocker v. Hill, 61 N.H. 345; Arbend v. Exley, 52 W.Va. 476; Eberson v. Inv. Co., 130 Mo.App. 296, 109 S.W. 62; Green v. Bell, 3 Mo.App. 291. (2) Plaintiff was entitled to go to the jury on the second count of his petition, which alleged the negligent making of repairs on the part of the defendant, and that such negligence was the proximate cause of the loss. Sulzbacher v. Dickie, 51 How. Pr. 500; Wertheimer v. Saunders, 95 Wis. 573; Rice v. Whitely, 115 Iowa 748; Kohnle v. Paxton, 268 Mo. 463; Little v. Macadaras, 29 Mo.App. 332, 38 Mo.App. 187; Noggles v. Sellers, 183 S.W. 659.
The plaintiff brought this suit in the Circuit Court of the City of St. Louis against the defendant to recover damages to a stock of shoes caused by water, through the alleged negligence of the defendant in not repairing the roof of the house, after a fire, in which the shoes were kept or stored.
The defendant owned the building in which the shoes were located and she leased it to the plaintiff for a shoestore for two years. Plaintiff contends that it became and was the duty of the defendant to repair the roof within a reasonable time after the fire occurred, but which she negligently failed to do, and that while in that damaged condition, the rain descended in great quantities and wet and damaged the stock to the extent of $ 10,500.
A clearer view of the case can be had from the allegations of the petition which is in two counts, and the charging parts of each are as follows:
First Count: Plaintiff states that on or about the 12th day of August, 1918, a fire occurred in said building and that thereby the roof thereof was particularly destroyed, so as to expose the contents of said building to the elements; that defendant failed and neglected to repair same within a reasonable time thereafter, although defendant well knew and had knowledge of said fire, and well knew and had knowledge that said roof needed to be repaired.
Plaintiff states that while said roof was unrepaired, by reason of defendant's failure and neglect to repair same within a reasonable time as aforesaid, that on or about the 2nd day of September, 1918, rain fell in large quantities and leaked and penetrated through the roof of said building and upon the property of plaintiff therein contained, whereby the same became wet and damaged and unfit for use. Plaintiff states that by reason of the premises he was compelled to close his store and suspend the transaction of business thereat for a period of three days, and that for a further period of fourteen days said store remained wet, damp, moldy and filled with unhealthy odors, so that only half of plaintiff's usual volume of business could be therein transacted.
The second count alleges: Plaintiff states that on or about the 12th day of August, 1918, a fire occurred in said building and that thereby the roof thereof was partially destroyed so as to expose the contents of said building to the elements; that said building was covered by insurance, and that the agent or servants of the insurance company placed or caused to be placed on said roof a temporary covering intended to make the same rain proof; that said temporary covering was permitted to remain while a dispute with the insurance company concerning an adjustment of loss was pending; that on or about August 31, 1918, said dispute being settled, the agents or servants of said company removed said temporary covering, and that, thereafter, defendant's agents or servants entered upon said premises to repair said building, and the roof thereof, and carelessly and negligently tore down all of the cross-beams and supports of said roof, leaving said building and contents thereof exposed to the elements and carelessly and negligently placed upon the garret floor of said building a tarpaulin which did not wholly cover said garret floor, leaving the sides and ends thereof exposed, uncovered and unprotected, so that should rain fall the same might soak, leak and penetrate through said exposed, uncovered and unprotected portions of said garret floor, and upon the property of the plaintiff contained in said building, and carelessly and negligently placed said tarpaulin flat and uneven upon said garret floor so that there were hollows and depressions in the same, wherein, should rain fall, the waters thereof would gather in pools and soak, leak and penetrate through said tarpaulin and upon the property of the plaintiff contained in said building. And carelessly and negligently placed said tarpaulin parallel with said garret floor and on the surface thereof, so that should rain fall the waters thereof would flow from said tarpaulin to the exposed, unprotected and uncovered portions of said garret floor, and thus soak, leak and penetrate through said garret floor and upon the property of the plaintiff therein contained.
Plaintiff states that while said roof was uncovered and unprotected as aforesaid and while said tarpaulin was negligently and carelessly stretched as aforesaid, and while said portions of said garret floor were uncovered, exposed and unprotected as aforesaid, and while said tarpaulin was placed parallel with and upon said garret floor as aforesaid, rain fell in large quantities and penetrated said exposed and uncovered roof and gathered in said hollows and depressions in said tarpaulin, and flowed from said tarpaulin to said exposed, uncovered and unprotected portions of said garret floor and leaked, soaked and penetrated through said garret floor and through said hollows and depressions in said tarpaulin and upon the property of the plaintiff, whereby the same became wet, damaged and unfit for use.
The second count also includes prayer for damages for ten thousand five hundred ($ 10,500) dollars.
The answer was a general denial.
The plaintiff identified and introduced in evidence a lease between the plaintiff and defendant for the property described in the petition, from February 20, 1918, to February 20, 1920, which lease was executed on November 1, 1917, The material parts of this lease involved in this appeal are as follows:
1. "Said lessor shall not be liable to said lessee or agents, guests or employees for any damage caused to his or their person or property by water, rain, snow, ice, sleet, fire, storms and accidents, or by breakage, stoppage or leakage of water, gas, heating and sewer pipes, or plumbing upon, about or adjacent to said premises.
2. "In case of the partial destruction of said premises so as to render it or any portion of it untenantable, a pro rata proportion of said rent shall be remitted or returned to said lessee until such time as again tenantable. The total destruction of said premises by fire, or otherwise, without fault or negligence of said lessee or his agents shall work a forfeiture of this lease.
3. "Lessor agrees to do repairing."
The plaintiff, Abe Gralnick, testified that he had been in business at Thirteenth and Biddle streets for about two (2) years prior to August 12, 1918; that about 10 o'clock on the morning of August 12, 1918, the roof of the building caught fire; that the fire department came around and put the fire out; that it was over around 12 o'clock; that his stock of goods was insured, and was damaged to the extent...
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