Myerson v. Kralemann

• Decision Date: 04 February 1919
• Docket Number: No. 15374.,15374.
• Citation: 208 S.W. 857
• Parties: MYERSON v. KRALEMANN.
• Court: Missouri Court of Appeals

208 S.W. 857

MYERSON v. KRALEMANN.

No. 15374.

St. Louis Court of Appeals. Missouri.

February 4, 1919.

Rehearing Denied February 25, 1919.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

"Not to be officially published."

Action by Philip Myerson against Herman C. Kralemann. From a judgment for plaintiff in the circuit court, on appeal from a justice, defendant appeals. Affirmed.

Paeben & Friday, of St. Louis, for appellant.

Claud D. Hall, of St. Louis, for respondent.

ALLEN, J.

This is an action, instituted before a justice of the peace, to recover for injury and damage to certain goods belonging to plaintiff, while upon premises leased by plaintiff from defendant, and alleged to have been occasioned by defendant's negligence. The statement filed before the justice of the peace contained two counts, but in the circuit court plaintiff took a voluntary nonsuit as to the first count. The trial in the circuit court upon the second count resulted in a verdict and judgment in favor of plaintiff, in the sum of $290.41, and the case is here on the defendant's appeal.

The second count of the statement alleges that at all of the times mentioned therein the defendant was the owner of a certain building known as 930 North Tenth street, in the city of St. Louis; that on September 22, 1914, plaintiff was a tenant of defendant and in possession of the lower floor of said building, where he had a large stock of goods, and defendant was in possession and control of the second floor of the building; and that by reason of the negligence of the defendant large quantities of water came down from the second floor to the first floor of said building, whereby certain property belonging to plaintiff was damaged. An itemized statement of the alleged damage is then set forth, totaling $384.55, followed by a prayer for judgment for that amount.

It does not appear that any answer was filed before the justice of the peace or in the circuit court.

The testimony in plaintiff's behalf shows that plaintiff's store or wareromn was flooded by water from a hydrant or faucet on the second floor of the building, which was then unoccupied, and tends to show that this faucet was left open by children who were in the habit of playing on this second floor. The evidence is that the sink beneath _he faucet had become "stopped up," and that the water overflowed from the sink and escaped to the floor below. There were two stores, or storerooms, on the first floor of the building; i. e., that occupied by the plaintiff and one that was vacant, with a hallway between them. A door opened from the street into this hallway, from which a flight of stairs extended to the second and third floors. It also appears that toward the rear of the building there was a window, a few feet above the ground, which opened upon a landing upon the stairway. It appears that, at the time of the injury to plaintiff's goods, plaintiff was the only tenant in the building, and that defendant had placed the property in charge of one Cohen, a real estate agent, who was attempting to rent other portions thereof.

According to the testimony for plaintiff, some damage was done to his goods on September 19, 1914, by water which came from the second floor. This alleged damage was the subject-matter of the first count of the statement filed herein, as to which plaintiff took a nonsuit. Plaintiff testified that prior to that time he had "more than once" seen boys go to the second floor to play, and that about two weeks prior to the date last mentioned he notified Cohen, defendant's agent, of this, but that Cohen took no action in the matter. Plaintiff's testimony is that when this first damage occurred he found this faucet on the second floor turned on and the water flowing over the sink; that he turned the faucet off and "plugged" it with "small corks." On the same day he notified Cohen of what had occurred and Cohen's son came to the premises that afternoon. Plaintiff further testified that on the morning of September 22, 1914, he found his ware room flooded and his goods damaged; that he found the door leading to the upper floor open, and that the window mentioned above was also open; that the faucet on the second floor was again open, the sink clogged, anti the water towing therefrom upon the floor.

A witness for plaintiff, Mrs. Biermann, testified as to the flooding of plaintiff's premises on September 19, 1914; that the door leading to the second and third floors of the...