S. W. Noggle Wholesale & Mfg. Co. v. Sellers & Marquis R. Co.

• Decision Date: 07 February 1916
• Docket Number: No. 11806.,11806.
• Citation: 183 S.W. 659
• Parties: S. W. NOGGLE WHOLESALE & MFG. CO. v. SELLERS & MARQUIS ROOFING CO. et al.
• Court: Missouri Court of Appeals

183 S.W. 659

S. W. NOGGLE WHOLESALE & MFG. CO. v. SELLERS & MARQUIS ROOFING CO. et al.

No. 11806.

Kansas City Court of Appeals. Missouri.

February 7, 1916.

Rehearing Denied March 6, 1916.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by the S. W. Noggle Wholesale & Manufacturing Company against the Sellers & Marquis Roofing Company and the Clarke School for the Deaf. Judgment for plaintiff against both defendants, and they appeal. Reversed as to defendant School, and as to defendant Roofing Company reversed and remanded for a new trial.

Haff, Meservey, German & Michaels, of Kansas City, for appellant Sellers & Marquis Roofing Co. Holmes, Holmes & Page, of Kansas City, for appellant Clarke School for the Deaf. Horace H. Blanton, of Kansas City, for respondent.

TRIMBLE, J.

This action is for damages to plaintiff's stock of merchandise caused by negligence in leaving open and unprotected a hole cut in the roof of the building plaintiff occupied, whereby water from a rainstorm during the night of August 14, 1907, flowed upon and injured said stock.

All three of the litigants are corporations. The defendant the Clarke School for the Deaf is the owner of the building, and, for brevity, will be hereinafter referred to as the School, or as the owner. The other defendant, the Sellers & Marquis Roofing Company, hereinafter called the Roof Company, is engaged in the business of laying gravel roofs, which consist of heavy overlapping felt or tar paper laid upon the roof sheeting and having hot pitch poured thereon, which, while in a molten state, is in turn covered with gravel.

In April, 1905, plaintiff took possession of the building in question under a five-year lease which contained no covenant to repair on the part of the owner. That portion of the building which fronted on Delaware street, in Kansas City, was five stories high, while the rear portion fronting on Wall street was only four stories. At the time of and prior to the lease the whole building was covered with a four-ply tar paper roof. And in the roof of the five-story portion was a sag or depression caused by the settling at that point of the rafters or other timbers under the sheeting on which the tar paper was laid. In May, 1907, the defendant School, upon the receipt of a written proposition from the Roof Company to put upon the five-story portion "a first-class four-ply gravel roof for the sum of $75 and guarantee against leakage from natural wear for five years," accepted said proposition and authorized the same to be done. According to the evidence of defendants, the Roof Company's contract had to do only with placing the gravel roof upon the building as it existed, and said company was under no obligation to repair the rafters or sheeting, or to eliminate the sag therefrom. The Roof Company put a fourply gravel roof on the five-story portion, but, as it was put on without raising the rafters or sheeting, and, indeed, without disturbing the old tar paper roof, of course the sag remained in the new roof as before; the new roof conforming to the contour of the old. The owned accepted the job as complete and satisfactory and paid the price agreed upon for it. No water came through a it, and, so far as the construction and texture of the roof so laid and its ability to prevent water from going through are concerned, the roof was a good roof.

While this roof was being laid plaintiff's president, Mr. Noggle, became apprehensive that it was not proper construction to leave the sag in the roof, because after a rain water would stand therein until it evaporated and he was fearful that this would cause the roof to eventually rot, or that the water would finally seep through. At various times thereafter, and prior to August, 1907, Mr. Noggle voiced his apprehensions to Mr. Page, the owner's agent, who looked after the building. Mr. Page, however, had no such apprehensions, and told Mr. Noggle that the Roof Company's guaranty was back of the roof if the water did affect it. The evidence of defendants' witnesses, who were expert in the roofing business, was that the sag did not produce a dangerous condition; that the roof constructed in May, 1907, was a first-class four-ply gravel roof and needed no further attention.

On August 9, 1907, the owner's agent, Mr. Page, in response to requests from plaintiff to put a roof on the four-story portion, wrote a letter to the defendant Roof Company asking for an estimate for a roof over said four-story part. The Roof Company answered this orally by proposing to cover the four-story portion for $77. This proposition was orally accepted by the owner's agent, Mr. Page, but just when the acceptance was made and the contract closed thereby is not clear. It was somewhere after the 9th and before the 14th of August, 1907.

On the morning of August 14, 1907, the Roof Company, pursuant to said contract, sent a gang of men under their foreman, Mr. Chick (who was also the foreman under whose supervision the roof on the five-story portion had been laid), to lay a roof on the four-story part. They began this work and finished it in a day or thereafter, and the owner's agent, Mr. Page, paid the Roof Company the $77 for it. No complaint is made as to the manner of doing this work, nor did any of the damage result from any defect in this roof. But during the first day the men were at work on this roof — that is, in the afternoon of August 14, 1907 — the foreman, Mr. Chick, borrowed a saw, and, going upon the roof of the five-story portion, cut a longitudinal hole in the roof and sheeting at one end of the sag in order to make a valley or drain therefrom leading from the sag to the gutter so as to carry off the water which would otherwise stand in the sag. Night came before it was finished, and the hole, so plaintiff's evidence shows, was negligently left uncovered, and a rainfall occurring that night damaged plaintiff's goods, for which this suit is brought.

A referee was appointed to hear and pass upon all questions of law and fact. He heard the evidence, and found that plaintiff was damaged in the sum of $1,841 and recommended a judgment for that amount against both defendants. The court overruled all exceptions to the referee's report and, after approving same, rendered judgment in accordance therewith. Both defendants have appealed.

The judgment cannot be permitted to stand as against the defendant School, for the reason that the petition pleads that its negligence consisted in employing the Roof Company when it "knew, or by the exercise of ordinary care could have known, that the Roof Company was negligent and unskillful." In other words, the School is charged with negligently having a servant which it knew or should have known was unskillful and negligent. Plaintiff tried to show that the portion of the petition relating to the negligence of the owner in selecting an incompetent servant may be considered as surplusage, and the petition treated as charging that the School was negligent, in that it, through its servant, attempted to obviate the effect of the sag by cutting the valley, and in doing so left it open. But that is not the meaning of the petition as against the School. No other negligence is charged against the owner except negligence in the selection of a servant. Hence, unless there is evidence of such negligent selection, the judgment cannot stand against the defendant School. It is elementary that, where specific negligence is alleged, that negligence must be proved; otherwise the judgment cannot endure. Roscoe v. Metropolitan Street Ry. Co., 202 Mo. 576, 101 S. W. 32; Orcutt v. Century Building Co., 201 Mo. 424, 99 S. W. 1062, 8 L. R. A. (N. S.) 929; McGrath v. St. Louis Transit Company, 197 Mo. 97, loc. cit. 105, 94 S. W. 872. There is no evidence at all that the Roof Company was incompetent or unskillful, nor that the School was negligent in employing said company.

The only basis in the findings of the referee for a judgment against the School is the finding that the School, through its general agent, Page, instructed Chick in August, 1907, to repair the sag by cutting a valley in the upper roof. The referee found that the Roof Company was not negligent in putting on the roof of May, 1907, and found that said roof "was a first-class four-ply gravel roof, as required by said contract." The referee nowhere found that the contract in August, 1907, to put the roof on the four-story part, included as a part of it the remedying of the sag. Indeed, the finding of the referee, in effect, is that it did not, since the referee finds that the two separate contracts for the two roofs were made, and in describing the August contract the referee says nothing about it including any repair of the sag, but says that the Roof Company put a gravel roof on the four-story part pursuant to the last contract, and that "while said men were putting on said last-mentioned roof" plaintiff complained to Page of the sag in the roof over the five-story part, and "that in consequence of said complaints" the said Page "instructed said Chick to repair said low place or sag by cutting a valley," etc. It is clear, therefore, that the only ground upon which the referee held the School liable was that Page directed Chick to cut the hole in the roof and put in a valley. But the petition does not put plaintiff's case as to the School on that ground, but upon the specific charge that the School was negligent in its selection and employment of the Roof Company. Hence for this reason, if for no other, the judgment, as to the defendant School will have to be reversed. Whether it should be reversed and the cause remanded is a matter to be yet discussed.

The negligence causing the injury was not in cutting the hole but in leaving it open after it was cut. The owner landlord was not negligent in making the contract of May, 1907, nor did the injury result from the putting on of...