Hutchinson v. Des Moines Housing Corp., 49765

• Decision Date: 20 October 1959
• Docket Number: No. 49765,49765
• Citation: 250 Iowa 1306,99 N.W.2d 81
• Parties: Tom C. HUTCHINSON, as Administrator of the Estate of Margaret Anne Hutchinson, Deceased, Appellant, v. DES MOINES HOUSING CORPORATION, Fort Des Moines Community Services, Incorporated, and Bruno Ceretti, Appellees.
• Court: Iowa Supreme Court

Page 81

99 N.W.2d 81

250 Iowa 1306

Tom C. HUTCHINSON, as Administrator of the Estate of Margaret Anne Hutchinson, Deceased, Appellant, v. DES MOINES HOUSING CORPORATION, Fort Des Moines Community Services, Incorporated, and Bruno Ceretti, Appellees.

No. 49765.

Supreme Court of Iowa.

Oct. 20, 1959.

Jones, Rockwell & Oliver, Des Moines, for appellant.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee, Des Moines Housing Corp.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellee, Fort Des Moines Community Services, Incorporated.

Hallaghan, Irish & Burt, Des Moines, for appellee, Bruno Ceretti.

PETERSON, Justice.

This case was previously before this court on an appeal as to interlocutory order in Hutchinson v. Des Moines Housing Corporation, 248 Iowa 1121, 84 N.W.2d 10. The appeal pertained to pleadings. A similar case was before this court in Tedrow v. Des Moines Housing Corporation, 249 Iowa 766, 87 N.W.2d 463. In this case the trial court directed a verdict in favor of all defendants, which the majority of this court affirmed.

The facts were shown in detail in the two previous cases. We will not repeat them at any length. We will sketch a few basic facts as an introduction to this case, and such additional facts as were offered in evidence, and which do not appear in the record in the Tedrow case.

Des Moines Housing Corporation secured from the General Services Authority of the United States Government, in about 1946, the possession and use of about 900 houses, and 65 stores including a recreation center. These improvements were erected at Ft. Des Moines for training purposes during World War II. The only property involved in this action was the recreation center known as building 318.

Des Moines Housing Corporation turned over to, or it might be called leased to, Fort Des Moines Community Services, Incorporated, Building 318, under oral lease, and without rental. Community Services, Inc., had complete possession and control of the building and all facilities. Up until February 20, 1956, Des Moines Housing Corporation paid all electric bills. It assumed no responsibility for the building except major repairs.

Community Services, Inc., rented the tavern to defendant, Bruno Ceretti under written lease for $250 per month. Mr. Lockhart, the mayor, testified: 'Mr. Ceretti was leasing the tavern portion of the building under an agreement marked Exhibit 12.' * * * 'all of the revenue from Building 318 went to Community Services. Community Services was the landlord.' (Emphasis ours.) The lease, provided: 'All other public utilities (except telephone) are to be furnished for the use and benefit of lessee by lessor without expense to lessee.' It also provided: 'All repairs to public utilities furnished by lessor shall be made at the expense of the lessor, who shall keep and maintain said utilities, except the telephone, in good operating condition.' (Emphasis ours.)

On February 16, 1956, Building 318 was completely destroyed by fire. Mrs. Tedrow, three of her four children, and Margaret Anne Hutchinson, a guest, eleven years old, plaintiff's intestate, lost their lives in the fire. Mr. Tedrow was custodian of the building, and lived in an apartment on the second floor, furnished to him as a part of his compensation. This is an action for damages for loss of the life of Margaret Anne. The trial court sustained motions to direct verdict for all three defendants. Plaintiff appeals.

A rough sketch of Building 318 will be of assistance in analyzing the facts:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Appellant assigns in substance three errors relied on for reversal:

1. The court erred in failing to submit the case to the jury under the doctrine of res ipsa loquitur.

2. The court erred in not submitting the case to the jury under the doctrine of specific negligence.

3. The court erred in directing a verdict for defendants, and holding that the gaps in evidence pointed out in the Tedrow case had not been filled in.

The last two assignments of error will be considered together.

Des Moines Housing Corporation had no possession or control of the building or of any utilities. It did have an obligation as to major improvements. Inspecting, servicing and repairing of the electrical equipment would not be considered a major improvement.

Merle Epps, electrician for Des Moines Housing Corporation testified: 'I was employed by the Des Moines Housing Corporation for about 10 years. We were not supposed to do any work in the commercial buildings * * *'

Since we are going to hold the failure of Fort Des Moines Community Services, Inc., to properly inspect and maintain the electrical wiring system in good operating condition, as the basis for submission to the jury, motion to direct verdict in favor of Des Moines Housing Corporation was properly sustained. The Housing Corporation had nothing to do with maintenance of the electrical wiring.

As between Fort Des Moines Community Services, Inc., and Bruno Ceretti it clearly appears he had a written provision in his lease, previously quoted, that lessor would keep and maintain the utilities in good operating condition. This was part of the consideration for which he paid $250 per month. It is true the evidence shows he added several electrical appliances in his tavern. Defendant Community Services, Inc., rented the rooms to Ceretti for tavern purpose, and knew or should have known of such a probability in these modern times. The failure of Fort Des Moines Community Services, Inc., to comply with its agreement, if the jury so finds, cannot therefor be charged to Ceretti. The exception would be if defendants produced evidence that Ceretti or his employees had placed the pennies in the fuse wells. The record fails to disclose any such evidence. The motion sustaining directed verdict in his favor was properly sustained.

We will not present the question again as to alleged error by failing to submit the case to the jury under the doctrine of res ipsa loquitur. It was fully presented in Tedrow v. Des Moines Housing Corporation, and we approve and concur in that presentation and conclusion.

The remaining question is what evidence was offered in this case, not offered in the Tedrow case, which requires submission of this case to the jury as to Fort Des Moines Community Services, Inc.?

In the Tedrow case Mr. Stebbins an assistant in the State Fire Marshal's office testified, but he would go no farther in his testimony than to say 'placing pennies behind the fuses * * * does create a fire hazard.' Mr. Cook, another assistant, testified: 'based upon my years of experience and fire investigation, the condition that we found in Exhibit 27 (the fuse box with the pennies) could create a fire hazard, and would create a dangerous condition.' Mr. Stith, City Electric Inspector of Des Moines, offered somewhat similar testimony, as to hazards of pennies in fuse wells. The testimony of these three witnesses was inconclusive, without other facts, and constituted no basis for submission to the jury, as the majority decided.

In the case at bar we find a completely different situation. The testimony is more detailed and conclusive. Three competent and qualified experts testified, and the evidence offered is sufficient to require submission to the jury as to Community Services, Inc. The additional evidence is the explanation by electrical experts as to conditions found in the fuse box, and their implications. One expert answered a comprehensive hypothetical question, which was worthy of jury consideration.

Mr. Epps, electrician, testified: 'After the fire, I had an occasion to make a search of the ruins in order to find a fuse box. * * * I found a fuse box practically in the position it was in the building, except it was on the floor covered up with tile. This fuse box that I found was the one that originally was behind the bar in Bruno's Tavern. This Exhibit 3 is the fuse panel that used to be located in Building 318 behind the bar at the tavern. * * * At the time I found Exhibit 3 I made an examination of it by unscrewing some of the fuses in the wells and I found two or three of them had pennies behind them.'

Mr. Lee Bills who worked for Ceretti from 4:30 p. m. until about 1:15 a. m., testified: 'I was working in Bruno's Tavern the night of the fire. The last night that I left Bruno's Tavern before the fire I made my general inspection and looked around the tavern a half hour before I left. As far as I know, there were no lighted cigarettes. There weren't any waste paper baskets out in the tavern portion where the customers were seated that you could throw lighted cigarettes in. * * * On the night before the fire, when I closed Bruno's Tavern, there were not any greasy rags in the tavern. * * * there was never any kerosene or gasoline kept in there.'

Mr. Bills testified about the extra appliances on the electric circuit in the tavern. 'There were 2 coolers where we kept our bottled beer. * * * These coolers were cooled by motors run by electricity. These coolers were left running all night so that the next day we would have cold beer to serve. * * * On this particular night the 2 coolers were practically full of beer. * * * The ice box at each end of the bar was used for 6-paks. * * * That night just before the fire, the walk-in cooler was in use. * * * That is where we kept the keg beer and the quarts. The walk-in icebox was cooled by electricty.'

Bruno Ceretti testified as to additional electrical appliances he had installed: 'I put in two reach-in coolers, bottle coolers, and I had two small fans * * * Other electrical equipment included my cash register, two electric clocks and the tap box. The tap box has facilities for cooling draft beer. * * * The ice box was plugged in a wall socket.'

Mr. John Lagerstrom was called as an expert witness for plaintiff. He is an electrical engineer with a Bachelor and a Masters Degree in...