Lamb v. Levitt Realty & Investment Co.

• Decision Date: 01 June 1937
• Docket Number: No. 23681.,23681.
• Court: Missouri Court of Appeals
• Parties: LAMB v. LEVITT REALTY & INVESTMENT CO.

106 S.W.2d 509

LAMB v. LEVITT REALTY & INVESTMENT CO.

No. 23681.

St. Louis Court of Appeals. Missouri.

June 1, 1937.

Rehearing Denied July 6, 1937.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be published in State Reports."

Action by Lorelle Lamb against the Levitt Realty & Investment Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

William R. Schneider, of St. Louis, for appellant.

Max Sigoloff, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for damages on account of injuries alleged to have been sustained by plaintiff on March 17, 1932, through the inhalation of monoxide gas discharged by a mechanical refrigerator furnished plaintiff by defendant, while plaintiff was a tenant in the defendant's apartment building, located at 3705 Washington avenue, in the city of St. Louis.

The trial, with a jury, resulted in a verdict and judgment for plaintiff, for $7,000, and defendant appeals.

Plaintiff and another young lady, Rose Pohlman Ambruster, who worked with plaintiff at J. D. Carson Furniture Company, jointly rented from defendant apartment No. 304 of the apartment building, located at 3705 Washington avenue, about six months before plaintiff suffered the injuries for which she sues. The apartment was rented to them as a furnished apartment, and among the furnishings was an Electrolux refrigerator. This refrigerator was operated by a flame fed by illuminating gas. The flame was located at the bottom of the refrigerator cabinet. The gas which created the flame entered a flue and was then discharged through a horizontal nozzle, which in turn produced a horizontal flame for the burner of the refrigerating mechanism. About two inches back of the nozzle was a screen constructed of brass mesh which served the purpose of filtering the air from dust and flying particles, and furnished pure air for the combustion of the burner flame. At or near the flame was a mechanical device which automatically shut off the flow of gas in the event the flame was extinguished.

The evidence for the plaintiff shows that, if the air-filtering screen became clogged with dirt and impurities, or if the flue carbonized, it restricted the flow of air through the flame nozzle, producing improper combustion, which was evidenced by changing the color of the flame from blue to yellow; that, as a part of the rental contract, defendant agreed to maintain and repair the equipment in the apartment; that pursuant thereto plaintiff reported to I. M. Levitt, who was defendant's president and manager of the apartment building, that the refrigerator was not working properly, and he had the defendant's janitor go up to the apartment to make the needed repairs on the refrigerator.

Plaintiff bases this action on the alleged negligence of the defendant in making these repairs in such manner as to permit monoxide gas to be discharged into the apartment, thereby causing plaintiff to sustain what is termed "monoxide gas poisoning."

Plaintiff testified that shortly before 6 o'clock in the evening on March 17, 1932, three days after these repairs were made, she and her roommate, Rose Pohlman Ambruster, went home together in order to dress for a dinner engagement that evening; that the doors and windows of the apartment were all closed and were not opened by plaintiff because of the fact that she expected to leave very shortly; that she noticed that the room was terribly stuffy and close; that Miss Ambruster first went into the bathroom to dress, and when she had finished plaintiff went into the bathroom for the same purpose; that when she came out of the bathroom she noticed that Miss Ambruster had fallen asleep and that since they had a little time before they had to leave for their dinner engagement she also sat down to rest; that she next remembered awakening around 10 o'clock with an intense headache and feeling very drowsy; that since it was then too late for their dinner engagement they concluded to go to bed, and succeeded with some difficulty in pulling down the Murphy in-a-dor bed; that she felt so bad that she did not take off her clothes but fell asleep immediately; that she was awakened in the morning by the electric alarm clock, and attempted to get up to go to work, but on arising was very dizzy and had a severe headache; that she had difficulty in walking and seemed to be weaving around the room; that she and Miss Ambruster opened the door leading to an outside balcony and when the fresh air struck her she began to vomit and continued vomiting throughout the entire morning; that on the evening of the day that she reported to Mr. Levitt that the refrigerator was out of order he told her that the refrigerator had been repaired by defendant's janitor.

Plaintiff further testified as follows: "There was an Electrolux refrigerator in our apartment on and prior to March 17, 1932. It was in the apartment when we moved in. We rented the apartment furnished from Mr. Levitt. He was to furnish us all the furniture, electricity, gas refrigeration, linens and silver. I had a conversation with Mr. Levitt prior to March 17, 1932, with reference to this refrigerator. Several months prior to March, 1932, we had some trouble with the refrigerator not freezing. We reported it to Mr. Levitt at that time and he promised to take care of it. About three days before March 17th we reported to Mr. Levitt that the freezer was not freezing. He promised to have it taken care of. Mr. Levitt told me on my coming in from work that the refrigerator had been taken care of on that same day. That was three days prior to March 17, 1932. I told Mr. Levitt that the refrigerator was not freezing, and he promised to take care of it. Prior to March 17th, the colored janitor had made repairs in the apartment. On this occasion when I reported the condition of the refrigerator three days before the accident, he sent his colored janitor up to take care of it. I know that from what Mr. Levitt told me."

Rose Pohlman Ambruster gave about the same version as to what occurred at the apartment as did the plaintiff.

Ben Newman...