Rosen v. Kroger Grocery & Baking Co.

• Decision Date: 01 May 1928
• Docket Number: No. 20191.,20191.
• Citation: 5 S.W.2d 649
• Court: Missouri Court of Appeals
• Parties: ROSEN et al. v. KROGER GROCERY & BAKING CO.

5 S.W.2d 649

ROSEN et al. v. KROGER GROCERY & BAKING CO.

No. 20191.

St. Louis Court of Appeals. Missouri.

May 1, 1928.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Action by Joseph Rosen and another against the Kroger Grocery & Baking Company. From a judgment for plaintiff after an unavailing motion for a new trial, defendant appeals. Reversed and remanded.

Leahy, Saunders & Walther, of St. Louis, S. M. McKay, of De Soto, and Lyon Anderson, of St. Louis, for appellant.

E. C. Edgar, of De Soto, and R. E. Kleinschmidt, of Hillsboro, for respondents.

BENNICK, C.

This is an action in two counts for damages alleged to have been sustained by plaintiffs through the negligence of defendant in the maintenance of an ice box and the drain attached thereto, in a building occupied by the latter as a grocery store, in the city of De Soto. The case was tried to a jury, resulting in a verdict in favor of plaintiffs on both counts, the damages under the first count being assessed at the sum of $300, and under the second at $100. From the judgment duly rendered in conformity thereto, defendant, after an unavailing motion for a new trial, has perfected this appeal.

Plaintiffs are husband and wife, and are the owners of two adjoining brick buildings, both of which face to the east. The one to the north is a two-story building, and is occupied by plaintiffs themselves, who conduct a dry goods store therein; while the other, a one-story building to the south, was leased by plaintiffs to defendant for a term commencing April 1, 1922, and was occupied and used by the latter as a grocery store from such date until February 3, 1926. The two buildings are separated by a division wall, thirteen inches in thickness, the north side of which is constructed of soft brick, and the south side of hard brick.

Having in mind the above preliminary statement as to the parties to, and the situs of, the controversy, the following portion of plaintiffs' petition becomes pertinent:

"Plaintiffs say that during the time defendant occupied said building, it owned and maintained a large wooden ice box or cooler, in which it at all times kept large quantities of ice; that said ice box or cooler was located by defendant in the aforesaid one-story brick building against the aforesaid brick division wall, and was so placed and located against said brick wall, and the drain pipes or other arrangements made by defendant for draining the waste water from said ice box or cooler were so negligently and carelessly placed and arranged by defendant, that instead of carrying said waste water away from said wall and out of said building, all of the said waste water was allowed to seep, soak, and run into the aforesaid brick division wall, thereby wetting the foundation, brick, mortar, and plastering of said wall, and the paper on said wall; that said wall was, by reason of being wet and water-soaked as aforesaid, so weakened and damaged as to cause great danger of said building falling, and caused great damage to the entire building above mentioned; that said injury and damage to said building was caused by the negligence and carelessness of defendant as aforesaid, and could have been avoided had defendant exercised reasonable or ordinary care in the matter; that by reason of the premises, plaintiffs have suffered damages in the sum of $1,000. * * * "For second cause of action, plaintiffs state that at the time said ice box and cooler was placed against the aforesaid brick division wall, between the two above-mentioned brick mercantile buildings, they had a large quantity of clothing in the shelves against the said brick wall on the opposite side of said wall from the aforesaid ice box or cooler; that when the waste water from said ice box or cooler ran into and soaked through said division wall it soaked and ran into the above-mentioned clothing, and same was water-soaked and thoroughly wetted, causing said clothing to mould and mildew and render said clothing unfit for sale or use, and same is a total loss to plaintiffs to their damage in the sum $500."

The answer filed by defendant to each count of said petition was a general denial.

It appears that, when defendant began the occupancy of the premises leased from plaintiffs, it placed a wooden ice box near the center of and against the north or division wall, to which reference has heretofore been made. Such box stood about seven feet in height, and had a capacity for two hundred pounds of ice, which amount was consumed daily. Arrangements were made at the time of the installation of the ice box for draining the water therefrom through a two-inch pipe, which connected with the bottom of the box through a funnel, and extended partly above, and partly under, the floor until it emptied into a cesspool which had been constructed in the back yard. This cesspool had concededly been built at plaintiffs' order; and, while the fact is perhaps not conclusively established from plaintiffs' own evidence, it strongly appears that they also caused the drain pipe to be installed, especially in view of the fact that, by the terms of the lease executed by them to defendant, they obligated themselves to keep in good repair the supply pipes for water leading to the premises, and the drainage pipes leading therefrom.

During the first two years of defendant's occupancy of the premises, the drain that had been thus constructed served to carry off the water from the ice box satisfactorily; but thereafter, plaintiff Joseph Rosen, on those occasions when he would be in defendant's place of business, began to observe that the floor in front of the ice box was constantly wet, and that sawdust was kept upon the floor for a distance of six feet from the ice box. In November, 1925, plaintiffs discovered for the first time that water had seeped through the division wall back of the ice box, and had damaged the articles of merchandise which were kept in shelves along that portion of the wall. This situation was immediately reported to defendant's assistant superintendent, who promised to make an investigation, and, after doing so, informed plaintiffs that the fault lay in the ice box, two legs of which had become rotten, and that it would be necessary to order a new one.

On February 3, 1926, defendant moved its store from the premises, and the testimony of several draymen who assisted in carrying out the ice box in question was that it was wet, and that, when they picked it up, the two legs that had rested against the division wall fell off. That there was evidence at such time of decay in the back of the box was admitted by defendant's local manager....