Riley v. Woolf Bros.

• Decision Date: 26 January 1942
• Parties: MYRTLE M. RILEY, RESPONDENT, v. WOOLF BROS. INC., A CORPORATION, AND HOMER McWILLIAMS, APPELLANTS
• Court: Kansas Court of Appeals

159 S.W.2d 324

236 Mo.App. 661

MYRTLE M. RILEY, RESPONDENT, v. WOOLF BROS. INC., A CORPORATION, AND HOMER McWILLIAMS, APPELLANTS

Court of Appeals of Missouri, Kansas City

January 26, 1942

Appeal from Circuit Court of Jackson County.--Hon. Thomas J Seehorn, Judge.

Judgment reversed.

Allan R. Browne, W. B. Ennis and C. A. Orr for respondent.

Mosman Rogers & Bell for appellants.

(1) The plaintiff failed to make out a case against the appellants. (a) An abutting property owner is not liable for a condition of the city street not created by his affirmative act. Reedy v. St. Louis Brewing Ass'n, 161 Mo. 523 61 S.W. 859; Callaway v. Newman Mercantile Co., 321 Mo. 766, 12 S.W.2d 491; Russell v. Sincoe Realty Co., 293 Mo. 428, 240 S.W. 147; Wright v. Hines (Mo. App.), 235 S.W. 831; Sheridan v. City of St. Joseph, 232 Mo.App. 615, 110 S.W.2d 371; Shaw v. St. Louis-San Francisco Ry. Co., 223 Mo.App. 1008, 9 S.W.2d 835; Stewart v. Sheidley, 232 Mo.App. 574, 16 S.W.2d 607, 610; Baustian v. Young, 152 Mo. 317, 53 S.W. 921; Breen v. Johnson Drug Co., 297 Mo. 176, 248 S.W. 970; Beck v. Ferd Heim Brewing Ass'n, 167 Mo. 195, 66 S.W. 928; 41 A. L. R. 212; 93 A. L. R. 800. (b) Under no theory could appellants be liable for damages resulting from water leaking from the service pipe under the street. McCord v. St. Joseph Water Co., 181 Mo. 678, 81 S.W. 189; Staples v. Dixon, 88 Me. 362, 34 A. 168. (2) No right of action is created by the ordinance or rules or regulations of the water department. (a) The ordinance is unconstitutional and void in so far as it attempts to create an obligation on the part of the appellants to make repairs or be liable for injuries to the public. Ford v. Kansas City, 181 Mo. 137, 79 S.W. 923; Secs. 20, 21, 30, Art. II, Const. Mo.; Sec. 3, Art. X, Const. Mo. (b) The ordinance was in admissible in evidence against either of the appellants because if any duty was created by the ordinance, it was a duty owing to the city and not to third persons, and the court erred in receiving it in the case. Russell v. Sincoe Realty Co., 293 Mo. 428, 240 S.W. 147; Wright v. Hines (Mo. App.), 235 S.W. 832; Breen v. Johnson Drug Co., 297 Mo. 176, 248 S.W. 970; City of St. Louis v. Connecticut Mut. Life Ins. Co., 107 Mo. 92, 17 S.W. 637; Stith v. J. J. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Ordinance No. 56123, Ordinances of K. C. Mo., 1928, secs. 1059 and 1060; Dixon v. Missouri-Pacific R. Co., 104 Kan. 440, 179 P. 548; 41 A. L. R. 217; 13 R. C. L. 322-324, sec 266. (3) The court erred in giving plaintiff's instruction No. 1 because the instruction is not based on or authorized by the evidence, and because it invites a verdict based on conjecture and speculation in respect to (a) control by Woolf Brothers, Inc., or by Homer McWilliams, of the pipe in question; (b) notice or knowledge on the part of appellants or either of them of the leak in the pipe; (c) causing, allowing or permitting the pipe to be broken and remain broken; (d) use of the service pipe by appellants as owners, occupants and leesees of the premises. An instruction which is not based upon or authorized by the evidence or which invites a verdict based on conjecture and speculation is erroneous. State ex rel. Banks v. Hostetter (Mo.), 125 S.W.2d 835; Gundelach v. Compagnie (Mo.), 41 S.W.2d 1; Gatley v. St. Louis-San Francisco Ry. Co., 332 Mo. 1, 56 S.W.2d 54.

SPERRY, C. Boyer, C., concurs. Shain, P. J., and Cave, J., concur; Bland, J., dissents.

OPINION

SPERRY, C.

Myrtle M. Riley, plaintiff, sued Woolf Brothers, Inc., a corporation, Homer McWilliams, and Kansas City, on account of injuries suffered by her when she slipped and fell on ice within the pedestrian lane on the north side of 11th Street where said street intersects Walnut, in Kansas City, Missouri. Before the case was tried plaintiff settled with Kansas City, and dismissed as to it. The case as to the remaining defendants was tried to a jury and there was a verdict and judgment for plaintiff, against both defendants, in the sum of $ 2500. Defendants have appealed.

Defendants offered no evidence at the trial, and do not contend that the judgment is excessive. They do contend, however, that their demurrer, offered at the close of the evidence, should have been sustained.

There was evidence to the effect that plaintiff, at about 7:30 A. M., on December 8, 1936, while on her way to catch a bus and while walking eastward within the designated pedestrian lane on the north side of 11th Street where same intersects Walnut Street, she slipped, fell, and was injured, on ice which had formed on the street. No contention is made that she was guilty of contributory negligence.

The evidence further tended to establish the following facts: That defendant McWilliams was the owner of a building located on the west side of Walnut Street and on the north side of 11th Street, at this intersection; that defendant Woolf Brothers, Inc., was the tenant and lessee of said building; that there was located, in Walnut Street, east of said building and north of the point where plaintiff fell, a "roadway" box which sat under the surface of the street and through which a water pipe ran; that said water pipe connected with Kansas City's water main, through a "corporation," a foot or two east of said "roadway" box; that there was a metal lid or top on said "roadway" box which had the word "water" on its top side, and which was exposed to view on the surface of Walnut Street and which lid could be raised or opened by the use of a common pick or other such instrument; that when said lid was opened a four foot key could be inserted into the "roadway" box and the water could be cut off in the service pipe above mentioned, between the main and the westward extension of said pipe; that, on the morning that plaintiff fell, at about 7:30 A. M., water was coming out of the top of said "roadway" box and was overflowing onto the street; that there was a large quantity of ice on the street in the vicinity of the box; that said ice extended southward to the point where plaintiff fell; that said icy condition had existed at this point on Walnut Street, and at said intersection and pedestrian lane, for a period of several days prior to December 8, 1936; that the water that was coming into the "roadway" box came from the service pipe above mentioned, between that point and the "corporation," but the exact source of the leak could not be discovered without first digging into the street and exposing the "roadway" box; that the "corporation" is a valve screwed into the city main for the purpose of permitting water to be drawn from the main line and through lateral service pipes leading therefrom; that the flow of water from the main into and through said lateral service pipes could be cut off at the "corporation;" that the "corporation" could not be reached through the "roadway" box but only by digging further back eastward from said box to the main, a distance of a foot or more; and that no one was permitted to dig into the streets of Kansas City by ordinance, without first having obtained a permit from the city so to do.

Witness Randle, a plumber's helper, testified that he was sent by his employer, a plumber, to repair a leak in a service pipe leading into Woolf Brothers, Inc., store, on the morning of December 8, 1936, and arrived in the vicinity at about 8:00 A. M.; that he located the "roadway" box aforesaid, saw water coming therefrom, observed that it came from a pipe which ran from the city main under the surface of the street, (which main ran north and south under the surface of Walnut Street at this point, west of the west rail of the street car track) westerly toward Woolf Brothers, Inc.; and that he went into the basement of Woolf Brothers, Inc., and there located the terminus of said pipe.

There was evidence tending to prove that the streets and sidewalks of Kansas City, (excepting the place where the accident occurred) were free of ice at the time, and the day before, the accident occurred.

The official records of the Kansas City water department were introduced in evidence and tended to prove that a city water inspector had reported to the department on December 7, 1936, that a leak existed in a water pipe at 1026 Walnut Street, the location of Woolf Brothers, Inc., between the city water main and the "stop and waste" on the inside of the basement; that A. D. Jacobson, a licensed plumber, took out an "extension permit" from the city, on December 8, 1936, which authorized him to alter or extend the service at that point; that said permit related to Reg. No. 9619, the pipe through which plaintiff claims the leakage occurred, and the service authorized thereunder was for "Woolf Bros. premises 1026 Walnut;" and that Jacobson reported on said permit; "This service has been altered as follows: service disconnected at main corporation cockthreads sewed off. Water left off." The records further disclosed that a "service permit," bearing the notation thereon, "Renewal," was issued on December 8th or 9th, 1936, wherein it is recited: "A. D. Jacobson, plumber, is authorized to install and connect with main for Woolf Bros. to supply premises No. 1024-26 Walnut . . .;" and that Jacobson reported on said permit, which bears the city inspector's certificate thereon, as follows: "1 in. Corporation Cock in Main Pipe--2 Ft. of 1 1/4 in. Pipe to Stop Box--One Stop Box and Cock in street--20 Ft. of 1 1/4 in. Pipe from Stop Box to stop and waste and the water left on." This report was dated "12-11-1936." This permit was issued to permit repairs on Reg. 9619, as was the first. There was also evidence tending to prove that Woolf Brothers, Inc., were notified of the leak on December 7, 1936.

Other records of the water company, which...