Rodier v. Kline's Inc.

• Decision Date: 01 February 1932
• Parties: JOSEPH RODIER ET AL., RESPONDENTS, v. KLINE'S INC., APPELLANT
• Court: Kansas Court of Appeals

47 S.W.2d 230

226 Mo.App. 474

JOSEPH RODIER ET AL., RESPONDENTS, v. KLINE'S INC., APPELLANT

Court of Appeals of Missouri, Kansas City

February 1, 1932

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

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Otto P Higgins, J. Frank Flynn and Virgil Yates for respondents.

McVey & Freet and John C. Baumann for appellant.

OPINION

BLAND, J.

This is an action in which plaintiffs, sub-tenants in a building owned by the defendant, sue the latter for its alleged neglect in failing to remedy the condition of stoppage in a drain or downspout upon the building, after it knew or could have known of the condition, resulting in rainwater coming into the premises and injuring plaintiffs' stock of goods and equipment.

At the conclusion of plaintiffs' testimony they took an involuntary nonsuit, with leave. Thereafter they filed a motion to set aside the nonsuit. This the court sustained, resulting in this appeal by defendant.

The facts show that on the 15th day of July, 1924, defendant leased the "rear portion of the second floor" of a three story building located in Kansas City, to one McNinch, for a term beginning on the 1st day of September, 1924, and ending on the 31st day of August, 1929. Among other things, the lease required McNinch.

"Will, during the life of this lease, make all repairs of every kind and nature necessary to be done within or appurtenant to the premises, including all stairways and the upkeep and replacement of all glass in windows and skylights or any other glass in or about the premises, except repairs to the roof and downspouts (skylights not included) which shall be made by the lessor."

The lease also provided that McNinch

"Will not hold lessor liable for and will pay all damage to person or property by whomsoever suffered on or about the premises, stairways, approaches, sidewalks or alleys adjacent or pertaining to the same and will defend, indemnify and save lessor harmless against all such damage claims and aganst all costs, attorneys' fees and expenses therewith connected."

The lease further provided:

"Lessor is not obligated to make any repairs, except structural repairs and repairs to the roof and downspouts, and lessor is not to be liable for any damage on account of work or failure of work, if any, herein stipulated to be done by lessor. . . .

"All the covenants, agreements and undertakings in this lease contained, shall be construed as covenants running with the land, and all rights given hereby to and obligations hereby imposed upon the respective parties shall be construed as accruing to and binding upon the heirs, executors, administrators, assigns and successors in interest to the parties hereto, respectively."

On July 26, 1924, a portion of the property that McNinch had leased from defendant was sublet by the former to the plaintiffs, the lease describing the property subleased as the "south room on the second floor, rear, of 1118 Walnut street." This lease was for a term beginning December 1, 1924, and ending on the 31st day of August, 1929. This lease provided that it was "made subject to lease dated July 15, 1924--Klines Inc. and J. R. McNinch."

The evidence shows that plaintiffs operated a violin shop in the premises leased by them from McNinch; that on August 7, 1928, a heavy rain came and that water, falling upon the roof, was dammed up thereon and ran into the room on the third floor of the building above plaintiffs' shop, thence into their room, damaging their stock of goods and the fixtures. The water was damned up by reason of a drain on top of the building, which connected with the downspout, having become clogged with rubbish and a newspaper.

There were several tenants upon the second floor of the building in question, one of whom was Thompson, a photographer. Thompson used the space on the third floor, immediately above plaintiffs' room, for a store room. Prior to August 7, 1928 and, about June 1st, of that year, the southwest portion of plaintiffs' room began to show signs of water coming through the ceiling. After every rain the plaster and paper were stained with water. The rainwater came through two or three times after the first. On one occasion plaintiffs were required to put pans in two or three different places to catch the dripping water. Plaintiffs complained to McNinch, who said he would take it up with the defendant. Nothing was done, so plaintiffs called Mr. Arnold, a representative of defendant. The latter came and said that the matter would be taken care of. This was sometime in June. This condition of leakage was reported to defendant two or three times prior to August 7th. Each time defendant agreed to take care of it.

Mr. Cowan, who was employed as engineer for defendant and whose duty it was to "look after all the machinery and all troubles" about the building in question, testified that there had not been any inspection of the roof or downspout for a period of six months prior to August 7, 1928; that no one during the summer of 1928, prior to said date, asked him to go up on the roof and find out what was causing the leak. However, he testified that he was on top of the adjoining five story building every day and from there could see the roof of the building in question and could see into the mouth of the downspout; that prior to the month of August he had never seen any paper, rubbish or other obstruction in it, nor had he seen any rubbish upon the roof; that the newspaper that was clogging the opening in the drain "wasn't very old."

The evidence shows that 3.37 inches of rain fell between 12:45 and 6:37 A. M. of August 7, 1928; that during that time the highest velocity of wind was forty miles per hour.

It is insisted by defendant that the court erred in sustaining plaintiffs' motion to set aside the involuntary nonsuit for the reason that defendant was relieved of liability for the damage done plaintiffs' stock of goods on August 7, 1928, by the expressed provisions of the lease between it and McNinch. This contention must be sustained. The Supreme Court, in construing a lease similar in many respects to the one in the case at bar, held that the owner of the premises was not liable for damage done to the lessee's stock of goods by rain and water coming through an opening in the roof. [See Gralnick v. Magid, 292 Mo. 391, 238 S.W. 132.] In the Gralnick case the court said, l. c. 400, 401:

"Concede for the sake of the argument, without deciding it, that the words the 'lessor agrees to do repairing' as found in paragraph three, meant that she was to replace the roof or other parts of the building when destroyed by fire, yet we are unable to see in what possible manner that would benefit the lessee...