Kinzel v. West Park Inv. Corp.

Decision Date14 December 1959
Docket NumberNo. 46927,No. 1,46927,1
Citation330 S.W.2d 792
PartiesArthur F. KINZEL, Plaintiff-Appellant, v. WEST PARK INVESTMENT CORPORATION, a Corp., Defendant-Respondent
CourtMissouri Supreme Court

Frank Mashak, St. Louis, for appellant.

Charles F. Hamilton, F. Douglas O'Leary, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent.

HOUSER, Commissioner.

This is a suit by a tenant, Arthur F. Kinzel, against his landlord, West Park Investment Corporation, for personal injuries sustained in a fire which originated in the rented premises. Plaintiff prayed for $75,000 damages. From a judgment for the defendant, following a jury trial, plaintiff has appealed.

Plaintiff and his wife rented Apartment No. 10, one of twelve apartments in defendant's building. Apartment 10 was on the third floor front, west side. The monthly rental included the item of electricity used by plaintiff.

Plaintiff's theory is that defendant, having contracted to supply electricity to him as a part of the rental agreement, reserved control over the electrical wiring system in plaintiff's apartment; that defendant owed plaintiff a duty to maintain the wiring system in a reasonably safe condition; that the electrical wiring 'in said apartment house, and more particularly in the apartment occupied by plaintiff,' was in a defective and dangerous conditon; that defendant was notified of the defective condition in ample time to correct and remedy it, but that defendant failed to correct the defective condition; that a fire was caused by the defective wiring, and as a result plaintiff sustained severe burns.

Plaintiff and his wife testifed that they 'always' had trouble with the lights in their apartment. They would go off two or three times a month, sometimes every week. They would stay off as long as an hour, or until the janitor could be notified and replace the fuses. Sometimes they would go off in the entire apartment; sometimes in the living room, and then in the kitchen. Sometimes the lights in the apartment next door would go out. Ofter the lights would go out in half the building. Sometimes all of the building would be out of lights. The receptacles in the walls all sparked. You could see a spark when you made the connection with a plug, and it would spark again when you made the disconnection. Sparks about an inch long would 'fly out of there.' The sockets were loose. There was a light socket in the west wall of the living room above the baseboard. Sparks would fly out of that socket. They always had trouble with that socket. It was out of order. It did not work. It 'was getting worse all the time.' A floor lamp was connected to that socket. An overstuffed chair was located a matter of inches from it. The screws came loose in the receptacle that held the switch for the ceiling light in the living room. The switch was not tight. They never used the socket in the bedroom. It was not working * * * was always out of order. The light would flicker, and it would spark. The receptacle in the sunroom began sparking after they moved in. When you would try to plug it in sparks would fly from it. Plaintiff's wife got a shock from the receptacle in the sunroom. She was shocked several times while connecting an electric fan, and while ironing. When she plugged into the receptacle 'sparks would fly out of there' and she would get a shock. Once when connecting the washer to the socket in the basement she received a shock in her right arm which completely paralyzed it for two or three days. A friend of plaintiff's wife plugged in her electric iron to press a dress. The sparks flew out of the socket and she received a 'terrific' shock. 'A lot of fuses' would blow out and the lights go off. When you plugged something in, the fuses would blow. Sometimes they would blow without plugging in. Fuses would blow two or three times a month. In addition to the frequent notice given the janitor about these conditions plaintiff and his wife testified that they sent a letter to defendant in the latter part of July, 1955 complaining that the wiring was bad, telling about the sparks and switches, and the blowing of fuses; that they received an answer from defendant promising to fix the wiring, but that no repairs were made. On the evening of September 17, 1955 plaintiff and his wife went to a social meeting, returning to their apartment shortly after midnight. They turned the lights on when they entered the apartment, and turned them off when they went to bed. Mrs. Kinzel had an electric fan connected for a while, but it was disconnected before she went to sleep. The floor lamp was disconnected. At the time they retired nothing was plugged into the socket or receptacle on the west wall of the living room or into the socket on the opposite side of the partition in the bedroom. On the previous day sparks had come out of the receptacle in the west wall of the living room. About 5:30 a. m. September 18, 1955 plaintiff's wife was awakened by heat from a fire which was in progress in the living room. She awakened her husband. The west wall, the ceiling, and part of the north wall of the living room were in flames. Flames were 'shooting * * * coming * * * out of the west wall and part of the ceiling' of the living room; 'shooting up the west wall,' the flames were 'shooting right out of the wall,' 'leaping up the wall to the ceiling' on the opposite side of the armchair. It was necessary for plaintiff to go through the flames to reach an exit. In so doing he was badly burned.

Defendant's evidence indicated that defendant had received no notice from plaintiff of such difficulties with the lights; that the trouble in the building had been corrected months before the fire by the installation of a new switch box, after which no complaints were made by any of the tenants; and that the fire did not originate in the living room wall, and that immediately after the fire the fuses were intact and had not blown.

The sole point on plaintiff's appeal is that the court unduly restricted and limited plaintiff in the presentation of his case by excluding the testimony of plaintiff's witness Gladys Stinson. This lady had lived in the building for 14 or 15 years. At the time in question she occupied Apartment No. 7, a back apartment on the second floor, west side. She testified that she had difficulty with the lights in her apartment many times after defendant assumed the management and control of the building. Defendant's counsel objected 'to any difficulty she may have had in her apartment.' The court sustained the objection, commenting that 'We are only concerned with this one apartment.' Counsel for plaintiff then stated 'Your honor, I want to show that the wiring in this house was bad, and of course, she has knowledge of it, and she can testify what the general condition was, and of what notice the landlord had about the defective wiring.' The court ruled that plaintiff would be held 'to this one apartment * * * unless you can bring in expert testimony to show the wiring was bad; she is no expert.' In the colloquy which followed defendant's counsel indicated that his objection was that trouble in Stinson's apartment was immaterial to any difficulty in Kinzel's apartment, and the court again sustained the objection. At the conclusion of the testimony given by the second succeeding witness the following...

To continue reading

Request your trial
27 cases
  • Lvcva v. Secretary of State
    • United States
    • Nevada Supreme Court
    • 4 Septiembre 2008
    ...and definitely establish what the evidence will be, its purpose and object, and its admissibility (quoting Kinzel v. West Park Investment Corporation, 330 S.W.2d 792, 796 (Mo. 1959)); Milenkovic v. State, 86 Wis.2d 272, 272 N.W.2d 320, 326 (App.1978) ("An offer of proof need not be syllogis......
  • Fletcher v. City of Independence
    • United States
    • Missouri Court of Appeals
    • 28 Enero 1986
    ...was not probative of the issue. The exclusion of the evidence therefore was not prejudicial to the defendant. Kinzel v. West Park Investment Corp., 330 S.W.2d 792, 795-96 (Mo.1959). IV The Damages The issue of damages was submitted by an instruction on the model of MAI 4.01. That form of in......
  • Elam v. Alcolac, Inc.
    • United States
    • Missouri Court of Appeals
    • 1 Noviembre 1988
    ...evidential source for the proof. The mere statements and conclusions of the interrogator are not enough. Kinzel v. West Park Investment Corporation, 330 S.W.2d 792, 795[1-4] (Mo.1959). If by testimony, then the witness should be placed on the stand and the questions propounded and the answe......
  • State v. Dixon
    • United States
    • Missouri Court of Appeals
    • 24 Mayo 1983
    ...Umfrees, 433 S.W.2d 284, 286 (Mo. banc 1968). Mere statements and conclusions of counsel are not sufficient. Kinzel v. West Park Investment Corp., 330 S.W.2d 792, 796 (Mo.1959); Duncan v. Price, 620 S.W.2d 70, 71 (Mo.App.1981); Hawkins v. Whittenberg, 587 S.W.2d 358, 363 (Mo.App.1979). It h......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT