Green v. Kahn

• Decision Date: 14 June 1965
• Docket Number: No. 1,No. 50672,50672,1
• Citation: 391 S.W.2d 269
• Parties: Debra GREEN, a minor, by Lillie Jackson, her next friend, Plaintiff-Appellant, v. Samuel KAHN and Evelyn Kahn, Defendants-Respondents
• Court: Missouri Supreme Court

Page 269

391 S.W.2d 269

Debra GREEN, a minor, by Lillie Jackson, her next friend Plaintiff-Appellant, v. Samuel KAHN and Evelyn Kahn, Defendants-Respondents.

No. 50672.

Supreme Court of Missouri, Division No. 1.

June 14, 1965.

Don L. Schlapprizzi, Gray & Sommers, St. Louis, for plaintiff-appellant.

John Bardgett, Donald Gunn, Jr., Charles P. Lippert, St. Louis, for respondents.

PAUL VAN OSDOL, Special Commissioner.

Plaintiff Debra Green had verdict and judgment for $50,000 for severe, disabling and disfiguring burns suffered in a fire in an apartment which plaintiff's mother, Shirley Green, who perished in the fire, occupied as a tenant of defendants Samuel Kahn and Evelyn, his wife, owners of the demised premises.

After the trial, however, the trial court sustained defendants' motions for judgment in accordance with defendants' motion for a directed verdict filed at the close of all the evidence and, in the alternative, for a new trial. Subsequently, the trial court set aside the order sustaining the alternative motions, and again sustained defendants' motion for judgment in accordance with defendants' motion for a directed verdict filed at the close of all the evidence, but, in effect, overruled defendants' alternative motion for a new trial. Plaintiff has appealed from the order and judgment for defendants.

In her petition, plaintiff had alleged, inter alia, that, on March 4, 1960, plaintiff lived with her mother, Shirley Green, at 2713 Rear Stoddard Street in St. Louis, in an apartment which premises were owned by defendants and demised to plaintiff's mother and her family; that defendants by oral agreement in consideration for rent demised the premises including a gas cooking range which was the only means available for heating the apartment; that defendants maintained control of the range and gas line appurtenant thereto; that defendants assumed the responsibility of providing a heating system for the demised premises, but did so negligently and carelessly by furnishing an open gas range for this purpose; and that defendants were negligent in that they knew or should have known that they created a dangerous condition on the demised premises by furnishing a gas cooking range as a means to heat the premises.

Defendants filed a general denial.

Plaintiff's case was submitted to the jury by the verdict-directing Instruction No. 3, as follows:

'The Court instructs the jury that if you find from the evidence that:

'1. On March 4, 1960, the plaintiff was a tenant of premises at 2713 Rear Stoddard which were owned by the defendants and,

'2. The defendants furnished a gas cooking range for this apartment which was intended to be used as the means of heating the plaintiff's premises and,

'3. The defendants retained the right of control over the gas range and gas piping leading thereto and,

'4. The gas range was not a reasonably safe means of heating the apartment rented to plaintiff's family and,

'5. That when used as a means to heat, there was danger of fire and injury resulting from the use of such gas range and,

'6. The defendants knew or in the exercise of ordinary care should have known that there was a reasonable lik[e]lihood or probability of a fire from the use of the gas range as a means of heating the apartment and that by reason thereof, the premises were not reasonably safe, if you so find, and,

'7. The defendants, in furnishing said gas range for the aforesaid purpose, failed to exercise ordinary care and were negligent, and,

'8. That such negligence, if any, directly caused or directly contributed to cause a fire in the apartment and injury to the plaintiff, Then you are instructed that your verdict must be in favor of the plaintiff Debra Green.'

Plaintiff-appellant relies on the point that the trial court erred in sustaining defendants' after-trial motion and in entering judgment for defendants. Plaintiff contends (1) there was substantial evidence tending to show that defendants retained control of the gas range in question; (2) defendants, landlords, owed plaintiff, their tenant, a duty to exercise ordinary care to keep the gas stove, over which they retained control, in reasonable safe condition and there was substantial evidence tending to show defendants' conduct in furnishing the gas stove for heating was negligence amounting to a breach of their duty; and (3) there was substantial evidence tending to show that such negligence was a proximate cause of plaintiff's injuries.

In connection with these and converse and other contentions, we think it necessary to make an extended statement of the evidence.

On March 4, 1960, defendants owned two buildings on Stoddard Street in St. Louis. The larger of these buildings, 2713-15 Stoddard, fronted southwardly on Stoddard, and the other and smaller building, 2713-15 Rear Stoddard, also faced southwardly, the front of the smaller building being twenty-five or thirty feet north of the rear of the larger. We infer the smaller building originally was a carriage house, but subsequently was converted into an apartment building.

The rear building was of brick with flat roof, and was divided into three apartments. Plaintiff's mother and her family of four young children, including plaintiff Debra, four years of age, occupied the easternmost apartment (2713 Rear Stoddard). This apartment was of two rooms each approximately nine feet wide, east-west, and sixteen feet long, and each had a door and a window in the south (front) end and each had a window in the north end. All four windows were covered with heavy screen wire. The outside door of the west room was east of the window at that end of that room. There was evidence that a curtain or shade was at this window, and that, in winter, a clothesline was strung from a point above this window diagonally back to and was attached to the wall at the north end of the room. The gas cooking range involved in this case had been installed with back near or against the west wall of the west room with its south side two or three (or four) feet north of the south wall and window. This west room was used as a kitchen, but there was a bathroom area in the north end of the room. The east room was the family bedroom. The kitchen and bedroom were connected by a door through the approximate center of the partition wall. The ceiling of these two rooms was approximately seven and a half feet from the floor. The outside door of the bedroom was locked with a padlock on the outside of the door. A former tenant testified that the lock 'belonged to Mr. Kahn;' but, there was testimony of witnesses for defendants that Shirley put the lock on.

Defendants had testified by deposition, and excerpts therefrom were read in evidence as admissions. Defendant Samuel had testified that when he rented the apartment he furnished the stove that was there. It was his property. All the furniture, everything was his. He furnished stoves to all three apartments. The gas ranges were the means the tenants would use to heat their apartments. 'I supplied the gas. It came from the front building--a pipe from the front building to the rear.' He paid the gas bills for those tenants. This was part of the agreement. The gas stoves he provided were the only means supplied the tenants for heating the premises. The gas line from the front building supplied the gas to the three apartments in the rear. The outside door of the bedroom was locked with a padlock on the outside. 'Q. If you came from the bedroom into the kitchen and went outside, would you walk by the stove? A. Yes; you got to.'

There was evidence that the pipe supplying gas to Shirley's apartment passed through the partition wall from the 'middle' apartment within which apartment there was a valve by which the gas supplying the range in Shirley's apartment could be shut off. The gas meter was located in the front building.

A member of the bombing and arson squad of the police department of St. Louis examined the apartment, 2713 Rear Stoddard, after the occurrence of the fire. He arrived at the scene about 11:00 p. m., March 4, and after the fire had been extinguished, the witness inspected the interior of the apartment. He saw a gas cooking range located in the southwest corner of the kitchen and observed that the fire originated in the approximate location of the range. His investigation indicated the fire was of high origin. There was severe fire damage three feet above the floor--just about the level of the top of the stove. The witness said a laboratory report recited that a plastic clothesline was found in the upper portion, at the neck of Shirley's body. He saw no source of fire, other than the stove--he found no matches. The wallpaper was charred on the edge where it was hanging above the stove. 'As I stated before, I came to the conclusion that the fire originated in the location of the stove, about three feet above the floor.' The witness also testified that he had recorded in his police report 'that the cause of the fire was blankets over the stove.'

A former tenant of the apartment 2713 Rear Stoddard, testified there wasn't any way to regulate the stove burners. When the burners were turned on the flame would just come up about three inches high. There was an agreement as to repairs. If anything went wrong in the apartment, the witness 'could call Mr. Kahn', and he would have the repairs done. Once she asked the repairman to adjust the controls of the flame. 'He wasn't able to do that.' The burners would have to be on all night in cold weather. The night of March 4, 1960, was one of the coldest nights of the winter. The witness had seen the neighbors around there hang things in their apartments to dry. Defendant Samuel had been out there when the stove was being used to heat the rooms. The witness also said Shirley smoked.

A building inspector-supervisor, in charge of the zoning section of the building division of the City, testified that an apartment building such as...