Hefferin v. Scott Realty Co., 2577
| Decision Date | 10 March 1953 |
| Docket Number | No. 2577,2577 |
| Parties | HEFFERIN, v. SCOTT REALTY CO. |
| Court | Wyoming Supreme Court |
Mahoney & Wilkerson, Ernest Wilkerson, Casper, for appellant.
William T. Schwartz, Casper, for respondent.
In this case the plaintiff sued the Northern Utilities Company and the Scott Realty Company for damages sustained while plaintiff was conducting a restaurant called the Copper Kettle at 349 East 'A' Street, in the city of Casper, Wyoming. The Utilities Company was sued for not properly fixing gas leaks in the restaurant. The Scott Realty Company was sued for not furnishing proper ventilation in the kitchen. The case was tried to a jury which returned a verdict in favor of the Utilities Company. No appeal has been taken so far as it is concerned. The jury brought in a verdict against the Scott Realty Company, fixing plaintiff's damages at $1,688.50. Prior to the submission of the case to the jury and at the close of the evidence in the case, the Scott Realty Company made a motion for a directed verdict. That motion was overruled. And after the verdict, the same company made a motion for judgment notwithstanding the verdict as permitted by Section 3-3605, W.C.S.1945. That motion was sustained and judgment was entered in favor of the defendant, Scott Realty Company. Thereupon the plaintiff appealed to this court.
When the term defendant is used herein it will refer to the Scott Realty Company the landlord herein, and the plaintiff will be designated as in the court below.
We may to a large extent follow the brief of counsel for plaintiff in stating the pleadings herein so far as defendant is concerned as follows: The plaintiff alleged that for valuable consideration paid to defendant she entered into possession of premises owned by defendant to operate a restaurant; that very shortly after commencing operations, lighting the gas burners, etc., it became apparent to plaintiff that there were inadequate ventilation facilities in the restaurant and that she could not continue under such circumstances to operate, whereupon she closed the business. The defendant, acting through its president and duly constituted agent, then requested plaintiff to re-open and assured her that defendant would fix the ventilating system. Plaintiff did re-open and defendant, after some delay, made an abortive effort to better the ventilation. After the defendant had finished its ventilating system renovation, which plaintiff says was of no value, plaintiff was stricken with acute bronchiolitis and pericarditis which she alleges was the result of the gas fumes and lack of oxygen in the restaurant. Defendant Scott Realty Company admitted that it was notified of poor ventilation, admitted that it undertook repairs to the ventilating system, denied that it had any obligation to do so; alleged that the obligation, if any, was on plaintiff to repair the ventilating facilities, and that plaintiff assumed the risk by continuing to operate the restaurant.
Though hardly necessary to set out many facts, as will appear hereafter, we thought it advisable to set out sufficient to show the main facts and the contentions in that connection, so that it may not be thought that we have overlooked what counsel for plaintiff considers the kernel of the case.
Plaintiff and defendant entered into a contract with reference to conducting the restaurant about February 28, 1951, the terms of which were reduced to writing, although the instrument was not in fact signed. The lease was for a definite period of three years and contained no provisions with reference to making repairs on the part of the landlord. The restaurant was being cleaned between February 28 and March 5, and was opened on the latter date. One Peebles, inspector for plumbing, gas and sewer, inspected the premises on March 3, 1951, and made his report stating that there was a sufficient fresh air inlet. The restaurant had been conducted previously by another party and no trouble as to ventilation had been experienced during that time. A dining room had then been used in connection with the restaurant. Plaintiff, however, did not desire this room although it was offered to her on the part of the defendant. That room accordingly was shut off, and the lack of ventilation in the kitchen subsequently was apparently due to that fact. About March 9, plaintiff considered the kitchen to be so hot and suffocating as to prevent her from continuing to conduct the restaurant until some more ventilation was furnished. So she shut down for a day or two, interviewing the manager of the defendant who stated that he would see what he could do. A new ventilating system was thereafter installed in the kitchen at the cost of more than $400. J. E. Scott, manager of the defendant, testified as follows: (Q. 768)
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The additional duct was thereafter installed. The installation was made by one Bert Peters, a carpenter foreman, and by Vern Williams, foreman of a tin and metal shop. Williams testified that the system worked 'pretty good'. Peters testified that the system worked very satisfactorily. On the other hand the witness Marie Beall testified that the kitchen was very hot and that so far as the heat was concerned there was no difference between the time that the restaurant opened and the time that it closed about March 27, 1951. And the plaintiff testified (Q. 562):
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Plaintiff worked at the restaurant from 4 o'clock in the morning until 8 o'clock at night with a little time off in the afternoon. She was a woman 45 to 50 years of age and Dr. McClelland testified that he considered it humanly impossible for her, in her condition, to work that long.
Plaintiff got sick on March 24 or 25, 1951, and was taken to the hospital where she remained...
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