Sjodin v. Lund

Decision Date01 September 1967
Docket NumberNo. 39859,39859
PartiesAnna SJODIN, Respondent, v. George LUND, Appellant, Ray L. Paroli, Respondent.
CourtMinnesota Supreme Court

Syllabus by the Court

1. (a) In a negligence action by plaintiff against the owner of a building and a plumber who installed a new heater in the building, when it is implicit in the verdict that the jury found the owner but not the plumber negligent, we cannot disturb the verdict where there is evidence to support the jury finding. (b) The evidence supports the action of the trial court in refusing to order indemnification against the plumber in favor of the owner. (c) There was no need for the trial court to characterize the owner's negligence as passive, since the jury found him to be the sole tortfeasor.

2. On motion for judgment notwithstanding the verdict the single question is whether any competent evidence reasonably tended to sustain the verdict. Held, the question of whether the plaintiff assumed the risk was for the jury. On the question of contributory negligence there is no showing in the record that at the time of the accident plaintiff was not acting as a reasonable, prudent person.

3. Where the court properly reserved the question of indemnification to itself, there was no error in its refusal to permit the owner to discuss the matter on final argument.

4. On the question whether a basement was a common basement, Held, there was evidence from which the trial court could conclude as a matter of law that it was a common basement under the supervision of the owner.

5. The granting of a view of the premises by a jury is in the sound [277 Minn. 474] discretion of the trial court. Under the record here no abuse of that discretion appears.

6. Where, during the view of the premises, one or more of the jurors discovered a water heater in the coalbin, and where the trial judge, who was present with the jury, was informed of this and immediately instructed the jury to disregard the heater, Held, that the juror's conduct was not prejudicial to the owner in the light of the court's admonition.

Montague, Applequist, Lyons, Nolan, Donovan & Knetsch and Charles T. Barnes, Duluth, for appellant.

MacDonald & Munger, Duluth, for respondent Sjodin.

Eckman & Eckman, Duluth, for respondent, Paroli.



Appeal from a judgment of the district court.

On November 9, 1962, the plaintiff, a widow, then 71 years old, was injured in the basement of the building where she lived in Duluth, when a discarded water heater fell upon her. The premises were owned by one of the defendants, George Lund.

In October 1962, plaintiff had reported to the owner that the water heater was leaking. He examined it, confirmed that it was leaking, and contacted the other defendant, Ray L. Paroli, a Duluth plumber, who agreed to replace it with a new one.

Plaintiff testified that the plumber came to the premises with his helper; that she opened the basement door to let them in; and that they disconnected the old heater and moved it over near a floor catch basin to drain and replaced it with a new one. There is some dispute in the evidence as to whether the old heater was removed from the catch basin area to a nearby corner in the basement. The owner testified that he assumed from past dealings with plumbers that the old heater would be removed from the basement by the plumber. The latter said, however, that unless the owner requested the removal of an old heater it was his practice to leave it on the premises. In any event, the old heater was not removed from the basement.

It is undisputed that the owner did not return to the premises following installation of the heater, nor does it appear that any claim was made that he was informed that the heater was still in the basement before plaintiff was injured. Plaintiff's only contact with the owner after installation of the new heater was when she informed him the following day that the new heater was leaking. He contacted the plumber, who returned to the premises about 2 days later and remedied the leak.

The plumber testified on cross-examination under the rules that, after receiving a call from the owner in October 1962 to replace the leaky hot water heater, he and his helper went to the building (on October 16) and replaced the old heater with a new one. When asked what he did with the old heater, he said that he '(s)et it in the corner of the basement.' He described the old heater as having approximately a 30-gallon capacity, being about 5 feet high, with a shipping weight of between 135 and 139 pounds, and having 3 legs. He also was asked, 'You don't recall when it was, but you are sure you put it in that corner?' His reply was, 'Yes.' He was further questioned, 'Now, you are sure you didn't put it over the drain, the drain into the sewer?' He replied, 'Yes, I always put it over the drain to drain it, and then after you drain it then you move it.' When asked if he put this one over the drain, he said he did it with every one he put in.

He also said he tested the new heater and it worked, and that plaintiff came down and he showed her how it operated. He said that when he came back 2 days later to tighten the leaky relief valve, the old heater was '(s)tanding in the corner where I put it.'

Later, on direct examination, he stated that in installing the new heater he first shut off the water supply; then put a hose on the old heater to drain the water into a catch basin until the tank was about half empty; and with his helper's aid then slid the heater up to the catch basin where it would drain faster. After placing the old tank over the drain the witness said they then installed the new one in the place from which the old one was removed, which took about 35 minutes, and then 'proceeded to clean the basement up' and 'moved the old heater from the catch basin over into the corner.'

The case was tried before a jury, which rendered a verdict for the plaintiff against the owner Only, but in favor of the plumber. Thereafter the owner moved for judgment notwithstanding the verdict or in the alternative for judgment in his favor and against the plumber for complete indemnification for the verdict against the owner, or, if these motions were denied, for a new trial on all the issues as to all parties. The motion was denied in all respects. Judgment was entered in favor of plaintiff against the owner who appeals.

He assigns nine errors on appeal. With respect to the first three, which he argues jointly, the owner contends (a) that the record does not support the jury verdict against him Only and in favor of the plumber; (b) nor does it support the action of the trial court in refusing to order indemnification in his favor; (c) that the court erred in refusing to hold that his negligence, if any, was passive.

He argues that in order for the jury to find for plaintiff against either defendant it must have found that the proximate cause of her injuries was negligence in leaving the discarded heater in the basement; that there was no question that it was left in the basement by the plumber; and that no one claims that the owner had anything to do with placing it in what the jury found to be a dangerous position.

1. (a) An examination of the evidence in the light most favorable to the prevailing parties satisfies us that there was evidence to support the verdict against the owner and in favor of the plumber. There is evidence that the old heater stood in the basement from October 16 until November 9, when plaintiff was injured. The owner apparently takes the position that the plumber put the old heater over the drain and left it in the alleged dangerous place it was in until it fell on plaintiff, over 3 weeks later. The plumber testified, however, that he put it in the corner after it drained and when he came back 2 days later to fix the leak it was standing in the corner where he put it. Thus we have a question of fact for the jury. The court instructed that it was the owner's duty to maintain the area involved in a reasonably safe condition; and that this duty included a duty to use reasonable care to inspect, discover and repair dangerous conditions. It also instructed the jury that it was the plumber's duty to put the discarded heater in a...

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4 cases
  • Larsen v. Minneapolis Gas Co.
    • United States
    • Minnesota Supreme Court
    • December 13, 1968 determining whether the evidence, viewed in the light most favorable to the jury's finding, will sustain it. Sjodin v. Lund, 277 Minn. 473, 476, 152 N.W.2d 718, 721. We concur in the trial court's conclusion that the finding is sustained by the evidence. There was testimony that vibrator......
  • Filas v. Daher
    • United States
    • Minnesota Supreme Court
    • May 17, 1974
    ...notwithstanding the verdict is whether there is any competent evidence reasonably tending to sustain the verdict. Sjodin v. Lund, 277 Minn. 473, 152 N.W.2d 718 (1967); Peterson v. Minnesota Power and Light Co., 206 Minn. 268, 288 N.W. 588 (1939). The motion accepts the view of the evidence ......
  • Wilkes v. Commissioner of Public Safety
    • United States
    • Minnesota Court of Appeals
    • January 12, 2010
    ...383, 390 (Minn.App. 1992). But "the granting of a view is in the sound discretion of the [district] court." Sjodin v. Lund, 277 Minn. 473, 480, 152 N.W.2d 718, 723 (1967). When asked by the district court why he had not brought a motion at least putting respondent on notice of the possibili......
  • Brown v. Arthur Schuster, Inc.
    • United States
    • Minnesota Supreme Court
    • May 10, 1974
    ...verdict, the applicable standard is whether there is any competent evidence reasonably tending to sustain the verdict. Sjodin v. Lund, 277 Minn. 473, 152 N.W.2d 718 (1967); Peterson v. Minnesota Power & Light Co., 206 Minn. 268, 288 N.W. 588 (1939). This court has stated that a motion for j......

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