Meyer Jewelry Co. v. Professional Bldg. Co.
| Decision Date | 02 December 1957 |
| Docket Number | No. 22645,22645 |
| Citation | 307 S.W.2d 517 |
| Parties | MEYER JEWELRY COMPANY, a Corporation, Respondent, v. PROFESSIONAL BUILDING COMPANY, a Corporation, Appellant, U. S. Engineering Company, a Corporation (Defendants). |
| Court | Missouri Court of Appeals |
Lowell L. Knipmeyer, Knipmeyer, McCann & Sanders, Kansas City, for appellant.
Robert S. Burns, Kansas City, for respondent.
This action was instituted by the plaintiff, Meyer Jewelry Company, for property damage against the defendants U. S. Engineering Company and Professional Building Company. The amended petition alleges that plaintiff occupied a portion of the first floor and basement of a building operated by defendant Professional Building Company and that it owned, maintained and exercised complete control over the plumbing, water and sewage systems in the aforesaid building; that the defendant Professional Building on February 5, 1953, engaged the defendant U. S. Engineering Company to install a new sewer pipe in the basement of the aforesaid building and in the premises occupied by the plaintiff; that the defendant U. S. Engineering Company was the agent of defendant Professional Building in installing the new sewer pipe; that it was the duty of the defendants to keep the water systems in such condition so as not to damage plaintiff's property.
Under Count I of plaintiff's petition, it is alleged that on the night of February 5, 1953, the defendants did repair work on the sewage system in a portion of the premises occupied by plaintiff as a storeroom and in so doing negligently and carelessly turned off the water system servicing the portion of the premises occupied by plaintiff and then negligently and carelessly turned the water system back on without a previous investigation as to whether the faucets to a sink in said storeroom were opened but instead negligently and carelessly left a faucet or faucets in said storeroom open and turned on and negligently and carelessly allowed said faucet or faucets to run and to overflow that portion of the premises occupied by plaintiff as a storeroom. Under Court I damages were sought in the amount of $4,128.15.
Under Count II it was alleged that on the night of February 5, 1953, the defendants did repair work on the sewage system of the premises occupied by plaintiff and negligently and carelessly turned off the water system to that portion of the premises occupied by plaintiff and then during the early morning of February 6, 1953, carelessly and negligently turned on said water system without a previous investigation as to whether faucets or other water outlets in the portion of the basement premises occupied by plaintiff were open or closed and carelessly and negligently allowed a faucet to remain open and to overflow, flooding that portion of the basement premises occupied by plaintiff as offices. Damages under Count II were sought in the sum of $7,013.66.
Trial was begun on the 22nd day of October, 1956 before the Court, a jury having been waived.
At the conclusion of the trial, the Court took the matter under advisement and on January 31, 1957, entered judgment in favor of plaintiff under Count I as to defendant Professional Building Company and as to defendant U. S. Engineering Company in the sum of $2,780.17; and under Count II rendered judgment against the defendant Professional Building in the sum of $4,754.89, and found the issues for defendant U. S. Engineering Company on Count II.
Thereafter the defendant Professional Building Company took an appeal to this court. The plaintiff did not appeal from the judgment rendered in favor of defendant U. S. Engineering Company under Count II and the defendant U. S. Engineering Company did not appeal from the judgment rendered against it under Count I. The judgment against the U. S. Engineering Company on Count I of the plaintiff's petition, is therefore final. Respondent remitted the sum of $35.06, and thus the amount in dispute is within the jurisdiction of this court.
The Meyer Jewelry Company, respondent, was the distributor and wholesaler of jewelry merchandise and its place of business was located in the Professional Building at 1105 Grand Avenue, Kansas City, Missouri, where it occupied the premises as a tenant of the appellant Professional Building. Respondent occupied a portion of the first floor of the Professional Building and a portion of the basement, which is on the west side of the building, and also a storage room in the basement. The storage room and the other portion of the basement used by respondent were separate and apart and the main area of the basement occupied by respondent was used as a warehousing and order-filling department for merchandise. The storage room was used for storage of various supplies. In the storage room was a sink with two faucets and in the main portion of the basement premises occupied by respondent were two restrooms, a coffee bar and a drinking fountain; there was a sink in the coffee bar with one faucet with two valves.
The Professional Building was enlarging its sewer system with a new eight inch line and this work was being done by the U. S. Engineering Company, under contract. Appellant had no key to the door to the storage room or to the main portion of the basement premises occupied by respondent. Appellant notified respondent that there was to be some plumbing work done during the evening of February 5, 1953, and requested respondent to have an employee present to let the workmen in and out of the storage room. Accordingly respondent notified one of its porters to stay with the workmen until the work was completed. Appellant's representative McDonald stayed on the job so he could turn off the water valves to the attic of the building. Work commenced in the storage room between 6:00 and 6:30 p. m. and the plumbers of the Engineering Company were admitted to the storage room by respondent. At the request of the Engineering Company, McDonald went to the attic of the building and turned the water system off; it was necessary to turn the water off in connection with the work; when McDonald returned to the storage room, water was draining from the faucets. Work continued in the storage room until approximately 10:00 p. m. and when the plumbing work was completed McDonald went back to the attic on the 16th floor of the building and turned the valves back on. When McDonald returned from the attic, it was noticed that there was some water running out from under the storage room door and McDonald then went back to the attic and cut down the valves again. The door to the storage room had been locked and closed at the conclusion of the work and in order to get back into the storage room, it was necessary to remove the door from its hinges. At that time McDonald observed water running over the sink onto the floor. McDonald didn't remember whether water was running out of the faucets or whether they were already turned off, but he stated that the water had to come from the faucets. The water was mopped up and certain merchandise was taken out of the storage room and into the main portion of the basement premises occupied by respondent after the door into the main premises had been unlocked by respondent. Respondent's Vice-President, Hancock, was notified that there was water running out from under the storage room door and upon his arrival at the scene he supervised the removal of some of the wet merchandise, which had been in the storage room, into the main portion of respondent's premises. Hancock checked the faucets in the storage room and determined that the water was off and when he finally went home that night the main area of the basement was completely dry and he heard no water dripping. The removal work continued until about 2:00 in the morning when apparently every one went home. McDonald testified that he did not check the faucets in the storage room; that he didn't remember who turned the faucets off. One of the plumbers testified that he didn't know who turned the faucets on in the storage room, but before the installation could be done it was necessary that the system be drained; that some of the plumbers evidently opened the faucet and drained it, but he doesn't know which one of the plumbers did it, but he does recall the water draining out and told McDonald that the water could be turned back on. At the conclusion of the work in the storage room, respondent's porter closed the door to the storage room. The porter testified that he did not turn the faucets on or off in the storage room; that when he was told by the plumbers that the work was finished, he went back into the main portion of the premises and then went home.
The second loss occurred in the main area of the basement used by respondent. In this area is a coffee bar maintained by respondent for the use of its employees. Respondent never had any difficulty with the faucets in the coffee bar; and it is not definite from the record as to when the second loss was discovered or by whom, but apparently it was discovered by respondent the following morning. After the first loss had been cleaned up, respondent's employees, appellant's employee, and the Engineering Company's employees went home. The clean-up work in connection with the first loss was completed at approximately 2:30 a. m. The water damage in the second loss must, therefore, have occurred some time between 2:30 a. m. and the following morning.
In addition to the coffee bar in the main part of the premises occupied by respondent, there were also a drinking fountain and two restrooms; there was a sink in the coffee bar with one faucet with two valves. As stated, after the first loss was discovered, some of the damaged merchandise was moved to the main portion of the basement premises. No one went in the coffee...
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