Vairo v. Vairo
| Decision Date | 08 December 1936 |
| Docket Number | No. 23895.,23895. |
| Parties | VAIRO v. VAIRO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; J. W. McAfee, Judge.
"Not to be published in State Reports."
Action for negligence by Basil Vairo against Josephine Vairo. From a judgment for plaintiff, defendant appeals.
Reversed.
George A. Hodgman, of St. Louis, for appellant.
Russell J. Horsefield, of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action for damages for personal injuries. Among the unusual features of the case is the fact that it is brought by an adult, unmarried son against his mother with whom he had always made his home. It appears, however, that the mother has the protection of a policy of liability insurance which her son had secured on her account, so that the case lacks any element of personal enmity or ill will between the nominal contending parties.
The injury to plaintiff was received in the family home at 3238 Minnesota avenue, in the city of St. Louis. The property was owned by defendant, and had been acquired by her some nine years before the time of the happening of the accident in question on August 8, 1933.
Defendant was a widow, and had been a widow for 29 years, her husband having died when plaintiff was about 7 years of age. He was about 36 years of age when his injury was received, and from the moment of his birth had continuously made his home with his mother. They two constituted the family proper, the only other member of the household being a practical nurse, who had lived on the premises for approximately 5 months, and whose duty it was to look after the health and well-being of defendant, who had been confined to her home under the care of a physician for the whole of that period.
Though the testimony was that plaintiff paid "board" to defendant in the sum of $10 a week, he was unquestionably not a "boarder" in the sense in which the term is commonly employed to designate the status of a stranger who is taken into a home and supplied with a room and meals therein for a fixed monetary consideration and between whom and the owner or proprietor of the home no family ties exist. To the contrary, plaintiff concededly assisted his mother with her business affairs, such as the placing of her insurance; he went to the store for her from time to time when the weather was bad; he collected certain of her rents for her; he took care of her small bills with money which she would hand over to him; he customarily sprinkled the lawn for her on summer evenings after his return home from his day's work; and he took her out riding with him in his automobile. In short, he appears to have been a very attentive and dutiful son, who not only made regular contributions towards the expenses of the household, but in addition assumed the obligations as well as many of the prerogatives of the "man of the house."
On the evening in question, plaintiff watered the lawn until about 9:45 o'clock, at which time he put the hose away and went up to the front porch where defendant was sitting engaged in conversation with a neighbor. As he approached, she asked him to go down into the basement and turn on fresh water for a collection of tropical fish which she was keeping in the basement in an ordinary bathtub which plaintiff, incidentally, had himself obtained for her at a downtown plumbing supply house of which he was an official.
In compliance with his mother's request, plaintiff went down the stairway into the basement, turned on the lights, walked over to the rear of the basement where the tub had been installed, and turned the faucet so as to allow fresh water to run into the tub. After the water had run sufficiently to serve his purpose, he turned the faucet off, but noticed that it still continued to leak. In an endeavor to prevent further leakage, he applied a little more pressure to the lever, and in so doing the porcelain encasing it was caused to break and crumble in his hand, a portion of the porcelain entering his palm and severing the tendons which supply the index finger.
Plaintiff had known that the faucet had been leaking for as much as 6 or 8 months and had called his mother's attention to it on a number of occasions, suggesting to her that the plumbing in the house ought to be looked after. He was aware, of course, that there was no danger to be apprehended from the mere fact that the faucet dripped a little, and during the whole period that the particular faucet had been in need of repair or replacement he had had occasion to turn it on and off at intervals, though not within the last 3 or 4 weeks preceding the accident. He testified that when he went down into the basement and attempted to use the faucet on the evening in question he had no knowledge of its condition, and did not know whether it had meanwhile been repaired or replaced by defendant. He testified further that, despite the fact that he was employed in the wholesale plumbing supply business, he knew nothing about plumbing work, and had never had anything to do with the repair of the plumbing in his mother's property, all of which had been regularly attended to by a regular plumber brought into the house from time to time for that purpose.
Aside from the fact that the faucet leaked, plaintiff had never noticed anything wrong about it, and he testified explicitly that he had never observed any cracks or discoloring in the surface of the porcelain indicative of the fact that it was defective or likely to break if used. Of the same general import was defendant's own testimony in her deposition which was read as a part of plaintiff's case, all of which was to the effect that, while she herself had seen markings on the handle such as are commonly to be found on all old porcelain, she was not aware that the handle was cracked, or that the faucet was in anywise defective, save for the fact that it leaked and was "kind of hard to turn off."
Counting upon the theory that his legal status was that of a boarder and invitee in his mother's home, plaintiff charged negligence on defendant's part, in that she had failed and neglected to...
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