Janis v. Jost

• Decision Date: 13 March 1967
• Docket Number: No. 51561,No. 1,51561,1
• Citation: Janis v. Jost, 412 S.W.2d 498 (Mo. 1967)
• Parties: Jerry M. JANIS and Joseph R. Janis, Minors, by Pearl Clark, Their Next Friend, Appellants, v. Charles L. JOST and Beatrice L. Jost and Laclede Gas Company, Inc., Respondents
• Court: Missouri Supreme Court

Page 498

412 S.W.2d 498

Jerry M. JANIS and Joseph R. Janis, Minors, by Pearl Clark TheirNext Friend, Appellants, v.Charles L. JOST and Beatrice L. Jost and Laclede Gas Company, Inc., Respondents.

No. 51561.

Supreme Court of Missouri, Division No. 1.

March 13, 1967.

Marvin Klamen, Klamen, Fletcher & Weisman, Clayton, Burton H. Shostak, Hoffman & Shostak, St. Louis, of counsel, for appellants.

Carter, Fitzsimmons & Brinker, Paul E. Fitzsimmons, Clayton, Harlan & Harlan, J. L. Harlan, Jr., Clayton, of counsel, for respondents, Charles L. Jost and Beatrice L. Jost.

Charles F. Hamilton, St. Louis, for respondentLaclede Gas Co.

HIGGINS, Commissioner.

Action by minors for $25,000 damages for wrongful death of their father allegedly caused by landlords' negligence in failing to repair or maintain a flue in reasonably safe condition, and by natural gas supplier's negligence in respect to repair and inspection of a gas heater and failure to discover a dangerous condition in the flue.Answers were denials of the charges and pleas of contributory negligence.Judgment was for defendants on a directed verdict at the close of plaintiffs' case.Plaintiffs' evidence, then, circumstantial and direct, viewed in its most favorable light, Schneider v. Prentzler, Mo., 391 S.W.2d 307, 309(1, 2), established these facts:

On January 9, 1962, Oval Janis, age 49, father of plaintiffs, died as a result of carbon monoxide poisoning.At the time of his death, Mr. Janis was a tenant of Charles L. and Beatrice L. Jostat 2928 Lemp Avenue, St. Louis, Missouri.The Josts acquired this 50-year-old property in 1950.A center wall divides the building into two symmetrical parts, each with a basement, first-floor apartment of three rooms and bath, second-floor apartment, and third-floor apartment of two rooms and bath.The Janis family occupied the south first-floor apartment.The westernmost chimney on the south side was made of brick and contained two 9 9 stacks, one for the south second floor apartment and one for the Janis apartment.The flue opening into the front room of the Janis apartment was about 29 feet below the top of the chimney and approximately three feet of this flue were within the south wall of the apartment.A pocket about 12 inches deep extended below the flue opening to catch residue.

Mr. Janis rented the apartment in 1957 at which time he received keys to the doors.Jost retained a key to avoid breaking doors and installing new locks in case the tenant left with the keys; it was never used to enter the Janis premises.The Janis family was given complete control of its 3-room unfurnished apartment and was privileged to exclude all persons from the premises during their occupancy as month-to-month tenants.Mr. Janis owned and installed his own 28,000 BTU circulating space heater and it burned natural gas through a separate gas meter and piping serving only the Janis apartment.Mr. Janis was billed directly by the gas company.The heater was located in the front room and was connected to the flue opening by about six feet of stovepipe.The Josts did not know who installed the heater and its vent pipe and they were unaware of any chimney stoppage at any time during the Janis occupancy.The Josts would redecorate apartments and clean and cap flues when the apartments were vacant but, during occupancy, maintained only the outside of the building.The chimneys on the building were tuckpointed in 1959 and coping tile was installed on them about a year after the accident.

Oval Janis and his wife were found dead in their bed in the middle room of the apartment.Joseph, who also slep in that room, was found in a stuporous condition.Jerry slept in the front room by the heater and was found unconscious.Both boys revived at the hospital.The weather was extremely cold.Upon his arrival, Corporal King of the police department found the windows and doors of the apartment closed.The heater was on; the room was hot.Sergeant Walsh arrived later and turned off the heater.He turned it back on and found it to be operating well.It was again turned off and then dismantled.Discolored sand, mortar and soot were found to be blocking the vent pipe and the stack opening.The pipe and the wall around the opening showed some soot, moisture, and rust streaks.

On December 23, 1960, Roy Bockenholt, a serviceman for Laclede, received an order to adjust the heater.He found soot had formed on the grate.He adjusted the air on the burner, the same was stopped up, and he cleaned the lint from the burner.He left instructions for the customer to disconnect the heater and clean it of carbon.He left the heater turned off.

In the opinion of William Coad, mechanical engineer in the heating business, 'a reasonable standard of safety commensurate with the danger,' would have required the serviceman to check the draft 'verifying whether or not there was a blocked flue.'In this opinion, he assumed that the serviceman who found soot on the grate meant the surface of the burner.He recognized also that he may have meant soot on the radiant or ceramic material.Carbon monoxide is a product of combustion and usually is carried away by the flue but, if the flue is blocked, it is directed through the draft diverter back into the room.Soot, also, ordinarily is carried away through a vent with a good draft.Soot would be produced in the heater by improper adjustment of the air opening on the heater or an inadequate draft.When a flue is open there is little opportunity for heat gases to cool within the flue and thus little condensation.Mortar in a chimney normally slowly deteriorates with age, becomes granular, and falls to the bottom of the flue, thus producing a rising level of debris.Tuckpointing, tremors, sonic booms, temperature extremes, and hammering increase the rate of deterioration.In the opinion of Ronald R. Edwards, architect, it is a safe, necessary, and recommended practice for anyone who has a space heater to make inspections to see if his vent is clear and the draft is proper.

Following the accident, Laclede's serviceman J. Hecht'removed four-inch vent from heater and found building flue stopped with sand and mortar.The heater was not carbonized and combustion was good.Meter was turned on in 1958.The last complaint here was in December of 1960.'

Mr. Janis was mechanically inclined and was employed as a typewriter serviceman earning $103 per week.

Appellants contend that the evidence that Laclede's employee who adjusted air on the burner of the Janis heater 'found soot on the grate, which indicates improper burning; that the employee failed to turn off the gas * * * at its source, coupled with expert testimony that a failure on the part of the employee to inspect the flue and vent system of the unit was a failure to exercise a reasonable degree of safety commensurate with the risk; that no such inspection was made; that carbon monoxide was produced by improper burning causing decedents' death,' was sufficient to warrant submission of their case against Laclede to the jury.

The indispensable element of this action against Laclede is proof of the allegation 'that in December, 1960, and subsequent thereto, said flue leading to the premises occupied by Oval Janis was substantially blocked, causing the creation of carbon monoxide gas within and whthout of the heater, attached to said flue by means of a vent pipe, and within the premises occupied by Oval Janis.'The thrust of appellants' argument against Laclede is that Laclede, in making the December, 1960, service call nearly thirteen months prior to the death of Oval Janis, negligently failed to discover that the house flue was then blocked and negligently failed to disconnect the heater.

No direct evidence was adduced which tended to prove that the house flue was blocked at the time of the service call; and the circumstantial evidence offered on this issue falls short of being such that a jury could be permitted to infer from it, without resort to guess and conjecture, the further facts necessary to demonstrate a breach of Laclede's duty.Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 848(6);Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541, 548(12).

Appellants say that their expert, Mr. Coad, testified that a partially or almost totally blocked flue condition existed at the time of Laclede's inspection, but such is not the case.Mr. Coad did testify in respect to rust, moisture, and condensation found on the wall and vent pipe January 9, 1962, that '* * * it's not something that happens within a few days; it takes a longer period of time.Again, I couldn't say specifically what period of time.'The condition was said to have existed 'for some time longer than a few days or a few weeks' and that it 'existed for several months of heating system operation.That's as close as I can pin it down.'When asked whether 'a totally blocked flue condition' existed in December, 1960, Mr. Coad could give an opinion only 'with qualifications.'He then stated that if the air adjustment on the burner had not been changed between December, 1960, and January 9, 1962, it would be his opinion that the flue was blocked 'or a partial or almost total blockage of the flue' existed 'roughly six heating months.* * * Now, if the heater had been adjusted in between, of course, this assumption would not hold.'Nothing was offered on the issue thus made of lack of adjustment 'in between,' and 'a child could turn the adjustment plate.'Mr. Coad stated there are 'about seven' heating months in a year, and seven or eight heating months intervened between the service call and the accident.As a result of such testimony, a fatal inferential gap exists between vent blockage on January 9, 1962, and Laclede's alleged lack of inspection in December, 1960.Appellants attempted to prove that Laclede failed to check the draft by an interrogatory calling for a description 'fully and in...