Kilmer v. Browning
| Citation | 806 S.W.2d 75 |
| Decision Date | 12 March 1991 |
| Docket Number | 16381,Nos. 16380,s. 16380 |
| Parties | Tom KILMER and Sharon Burnett, Plaintiffs-Respondents, v. Bonnie BROWNING, Defendant-Appellant, and KPL Gas Service Company, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Jerry L. Holcomb, Collins, Webster & Rouse, P.C., Joplin, for plaintiff-respondent Sharon Burnett.
Abe R. Paul, C.R. Rhoades, Rhoades, Paul & Paul, Neosho, for plaintiff-respondent Tom Kilmer.
Theresa Ohler, Jon Dermott, Blanchard, Van Fleet, Martin, Robertson & Dermott Joplin, for defendant-appellant Bonnie Browning.
Thad C. McCanse, Flanigan, McCanse & Lasley, Carthage, for defendant-appellant KPL Gas Service Co.
On July 30, 1990, this district filed an opinion affirming the judgment. Thereafter, on August 21, 1990, by written opinion, this district denied appellants' motions for rehearing or to transfer to the Supreme Court. Appellants then filed applications for transfer with the Supreme Court. It sustained the applications on October 16, 1990. On March 5, 1991, the Supreme Court entered the following order: "Cause ordered retransferred to the Missouri Court of Appeals, Southern District." With the addition of this paragraph our initial opinion and the opinion on the motion for rehearing or transfer are readopted. They are set out hereafter.
Plaintiffs brought an action for the wrongful death of their son. They received a jury verdict in their favor for three hundred thousand dollars with fault apportioned 50% against each defendant. Both defendants appeal and their appeals have been consolidated.
Following the verdict, plaintiffs filed a motion requesting prejudgment interest as provided in § 408.040.2, RSMo Supp.1989. Initially the trial judge declined to rule the motion pending appeal. This court requested the parties to include in their briefs whether there was a judgment because this motion was not directly ruled. After that order was issued the trial court sustained the motion. Although no point of defendants directly challenges the allowance of the interest, in their point regarding the finality of the initial "judgment" defendants question whether the trial court properly and correctly handled the interest issue.
Plaintiffs followed the proper procedure by filing a motion after the verdict and proving the necessary elements contained in that section, and were entitled to the interest. Whether a plaintiff might be entitled to it cannot be determined until the trier of fact has determined the damages and the court has indicated that a judgment would be entered including that amount. When this has occurred, prejudgment interest, if any, should be determined, and if granted included in the judgment. In wrongful death actions the damages should also be apportioned as provided in § 537.095.3, RSMo 1986. See Schaefer v. Yellow Freight Systems, Inc., 788 S.W.2d 345 (Mo.App.1990); Bragg v. Missouri Pacific R.R., 756 S.W.2d 666 (Mo.App.1988). That occurred here, if somewhat belatedly. 1
Certain facts are undisputed. Other evidence will be referred to in discussing defendants' contentions. Plaintiffs' son Richie Kilmer was found dead on December 30, 1987, in his duplex apartment in Joplin. He was 20 years old. A sample of his blood upon analysis showed that he had died from carbon monoxide poisoning. He lived alone in the apartment. He moved into the apartment four days before his body was discovered. Defendant Bonnie Browning was the owner of the one story building and defendant KPL Gas Company furnished gas used by appliances in the building, including the furnace in Richie Kilmer's apartment.
The duplex had previously been a single family dwelling. It was more than fifty years old. The two units were heated by separate floor furnaces. The floor furnaces were vented by a vent system connected and located in a crawl space under the building.
Access to the crawl space was a small hole in the foundation in the southeast corner of the building. During the winter months the crawl space was closed with a board. Defendant Browning testified that the crawl space was not part of the premises rented to a tenant and she would not expect them to go under the house. She and her previous husband had owned the premises since 1969 and since their divorce in 1979 she owned it individually. To her knowledge the vent system had never been inspected and she had no maintenance or inspection plan for the condition of the duplex. If anything was not functioning properly she relied upon her tenants to inform her and she had repairs made, usually by others. Certain facts are not disputed. As defendant KPL Gas Service Company stated in its brief:
Here the evidence is overwhelming that the condition which caused the death was the collapse of the venting system. The evidence was uncontested that Richie Kilmer died of carbon monoxide poisoning, that heated exhaust gases such as would normally go through a vent system will rise, that carbon monoxide is the by-product of burning natural gas, and that the purpose of the vent pipes is to carry the exhaust fumes to the outside air. [omitting transcript page citations]
Each defendant asserts that the trial court erred in denying its motion for a directed verdict because plaintiffs failed to make a submissible case. In reviewing these contentions we must consider that a motion for directed verdict is a drastic action which should only be sustained when the evidence and reasonable inferences thereof taken most favorably to the plaintiff leave no room for the jury to find the facts necessary for plaintiff's recovery. Mercer v. Thornton, 646 S.W.2d 375, 376 (Mo.App.1983); Ogle v. Webb, 623 S.W.2d 582, 583-584 (Mo.App.1981).
Defendant Browning's contention that there was not a submissible case made against her is in three parts: (1) that there was no evidence that she could have known that the heat venting system did not properly vent the carbon monoxide from Richie Kilmer's apartment; (2) that there was no evidence that she retained control of the heat venting system; and (3) there was no evidence that she failed to use ordinary care to make the heat venting system reasonably safe.
Although as defendant Browning suggests, a landlord is not an insurer of the premises, Thompson v. Paseo Manor South, 331 S.W.2d 1, 3 (Mo.App.1959), nor strictly liable for latent defects absent actual or constructive knowledge of the defect, Henderson v. W.C. Haas Realty Management, 561 S.W.2d 382, 387 (Mo.App.1977), she has a duty to make the leased portions of the apartment building under her control reasonably safe, Niman v. Plaza House, 471 S.W.2d 207, 210 (Mo. banc 1971). Defendant Browning avoided this duty by ignoring the premises and its appliances, particularly those which could pose a danger such as asphyxiation by an odorless gas.
The jury could, and apparently did conclude that defendant Browning was negligent in not inspecting or in not having the venting system of the furnace inspected. Parts of the pipes of that venting system were in evidence and show rust and other indications of deterioration. There was testimony that this deterioration had taken place over five years. Anyone looking at the pipes in such a condition would be aware that there was potential for harm and that corrective measures would have to be made to make the system safe. Subpoints No. 1 and No. 3 have no merit.
Subpoint No. 2 likewise fails. The venting system was for both apartments, it was in an area not rented to the tenants nor where they were expected to go. Even where there are plumbing and heating fixtures in an apartment leased to tenants, they are usually controlled by the landlord as they must be maintained and used in conjunction with the entire building. Ordinarily a landlord retains control of an entire heating system. See Niman v. Plaza House, Inc., supra 471 S.W.2d at 210; Thompson v. Paseo Manor South, Inc., supra 331 S.W.2d at 4. Compare also the similar case of Marentette v. Luechtefeld, 268 S.W.2d 44 (Mo.App.1954).
Janis v. Jost, 412 S.W.2d 498 (Mo.1967), cited by Browning, is not in point. It involved the lease of a single family home where the landlord did not keep any control over the premises. Obviously in an apartment house there must be common areas and control of a portion of the premises by its owner. A submissible case was made against defendant Browning.
Defendant Browning contends that the trial court erred in submitting a verdict directing instruction tendered by plaintiff because it failed to require finding that defendant Browning retained control of the heat venting system. As pointed out in our immediate previous discussion regarding control of the venting system, there was no question but that the landlord retained control of it. One or the other of the tenants would not be under control of a system which was to operate for the benefit of both of them. In addition, it was not in an area leased to the tenants or where they were expected to go. Niman, Thompson, and Marentette, state that in a situation as here, the landlord has control of the heat venting system as a matter of law. There was no issue on control for the jury to consider. This contention is denied.
Defendant Browning claims that the damage instruction was erroneous because it allowed the jury to consider "aggravating circumstances attendant upon the fatal injury." Section 537.090, RSMo 1986, provides that "aggravating circumstances attending the death may be considered by the trier of the facts". 2
Such damages are punitive in nature and their purpose is to punish the defendant and deter future wrongdoing. Blum v. Airport Terminal Services, Inc., 762 S.W.2d 67, 73 (Mo.App.1988); Williams v. Excavating & Foundation Co., 230 Mo.App. 973, 93 S.W.2d 123 (1936).
Aggravating circumstances are not present if there is mere negligence; it requires a showing of willful misconduct, wantonness,...
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