Eberson v. Continental Investment Co.

109 S.W. 62, 130 Mo. App. 296, 1908 Mo. App. LEXIS 231

• Court: Missouri Court of Appeals
• Decided: March 31, 1908
• Status: Published

Opinion

GOODE, J.

In the summer of 1902, plaintiff was a tenant of the defendant company, occupying a double brick building Nos. 901, 903 North Second Street in the city of St. Louis. The premises were used by plaintiff for a paint factory and. for the sale of paints. The lease provided, among other things, that defendant should keep the building in good condition and in the event of partial destruction by fire should speedily restore it to as good condition as it was in previously. 'The stipulation especially included an agreement on -the part of defendant to keep; the roof in good order. On June 13, 1902, the roof was destroyed by fire to an extent that exposed the contents of the building, including plaintiff’s paint and other merchandise, to the elements. Defendant employed a firm of contractors, Hogg & Reid, to make permanent repairs to the damaged roof. The fire had burned about an elevated skylight or cupola with glass sides, destroying that portion of the roof and a space around the skylight; perhaps a strip of roof about twelve feet long and as wide. Part of the remainder of the roof was so charred that it had to be torn away and reconstructed, and so the ■contractors removed a space sixty feet long and extending over the width of the building. Plaintiff swore his 'goods-suffered very little damages from the fire, practically none; because the Salvage Corps of the City Fire Department spread tarpaulins over his property and protected it from water thrown by the fire engines. But on a previous trial he had given testimony that considerable damage was sustained by the first fire in consequence of advertising matter being totally lost and cans being caused to rust. The goods were on the second floor and basement, according to the testimony, though we suppose the basement means the ground floor. As the fire was only in the roof, the goods were not burned and were, as said, practically undamaged by the water used in extinguishing the fire. It was raining heavily about the time, and plaintiff was apprehensive his property might be injured by a rain during the repairing of the roof. He had several conversations with Mr. Hogg, one of the contractors, in regard to whether his goods would be protected during the repair work and Mr. Hogg assured him they would be; that all requisite precautions would be taken to keep them from getting wet. Plaintiff’s business was never checked after the fire, but he continued to carry it on without interruption, just as he had before, relying on the assurances of the contractor that proper precautions would be taken to keep the rain from get-' ting into the building. During the night of June 27th, or the morning of the 28th, there was a very heavy and unusual fall of rain, accompanied by a high wind. This storm overcame the measures taken by the contractors to protect plaintiff’s premises and the rain beat into the building, flooding it with water and seriously damaging plaintiff’s property. The contractors had spread tarpaulins over the roof above plaintiff’s office, which was on the second floor, but seem to have done nothing to'protect the other portions of the building, depending on getting the roof constructed with sufficient rapidity to prevent damage. One of the contractors said it did not look like rain the evening before the damage was done, and it is obvious they took the risk of rain, but they assert plaintiff authorized this course. There was testimony of experts tending to prove that by taking proper precautions the rain could have been kept out of the building and plaintiff’s property saved. The cause was here on appeal before and other facts may be found in the opinion then rendered (118 Mo. App. 67).

This action was instituted to recover for the damage done the property, on the ground of negligence on the part of defendant’s agents, the contractors, in allowing the roof to remain in such a condition during the repair work that the property was exposed to the elements. The defense, besides a general denial of the averments of the answer, consisted of a plea that the contractors left a portion of the roof uncovered and unprotected with plaintiff’s leave, license and consent, and that the rain which fell on his property came through the portion of the roof thus left unprotected; that plaintiff accepted the risk of whatever injury might result from leaving the roof open. There was another plea that the injury sustained was caused by plaintiff’s own negligence contributing thereto, in that he allowed his property to remain in the building in such condition that it was exposed to the rain which fell on it. The issues were left to the jury which returned a verdict in plaintiff’s favor for $2,725, and judgment having been entered in accordance with the verdict, defendant appealed.

After the damage occurred, plaintiff asked that the amount of loss be appraised, rather indicating at the time that he expected to hold the contractors responsible. One of defendant’s officers, and also its agent who had charge of the property, were in favor of appraising the damage, and after some discussion between the parties, the contractors appointed an appraiser by the name of Fritsch and defendant appointed one named Purdy. An attempt was made to show Fritsch was appointed by defendant, but the evidence inclines the other way. It is true though that Dor-na itzer, defendant’s agent, as well as Goodlove, its secretary, wanted an appraisement and Dormitzer told Fritsch that if neither the contractors nor the defendant paid him for his services, he (Dormitzer) wonld pay him. The two appraisers thus chosen went to the premises and plaintiff indicated in a general way what property had been damaged, pointing out portions of it. But in the main the different articles damaged were pointed out, not by plaintiff himself, but by his superintendent. Each of the appraisers made an itemized list of the property with an assessment of the damage done to the different classes, amounting in the aggregate to $2,671. These lists were copied, or another list made fdom them, in plaintiff’s office and he swore he saw the latter list prepared. When he was on the stand testifying as to the amount of his damages, the court, over the objection of defendant, allowed him to refresh his memory from this list. Plaintiff testified he had no clear recollection, independent of the list, as to what property was damaged and had to refresh his memory from the list. It is assigned for error that plaintiff was permitted to use the list of damaged property made out by the appraisers to refresh his memory. The argument for defendant on this point is that as plaintiff did not point out all the different articles, but left that task mainly to his superintendent, and as plaintiff testified he had no recollection of what goods were injured without the aid of the list, his memory was really a blank on the subject andhis testimony concerning the amount of damages was wholly hearsay — ■ simply a reading to the jury of the articles found by the appraisers to have been injured, with their estimates of the loss to each class of articles. As said, the list from which plaintiff refreshed his memory was made up in this way: while the appraisers were looking through the stock, each made a memorandum of the damaged articles and the amount of loss. They came into plaintiff’s office, where he was, with these memoranda, and from- them they Avrote out, in bis presence, tbe memorandum which he used on the witness stand to refresh his memory. Plaintiff swore all he did ivas to point out to the appraisers a lot of goods that had been damaged, hut his superintendent was with them more than he was. He swore further the memorandum thus made out Avas the only thing which enabled him to refresh his memory and he was simply testifying from the memorandum made by the appraisers as to what their conclusions were as to his damages. After thus testifying regarding his knowledge, or lack of knowledge, plaintiff took up, item by item, the articles listed on the appraisers’, memorandum and testified as to the damage done to the different classes of goods. He reiterated the amounts set down by the appraisers; but supplemented this testimony on cross-examination, with the statement that they appraised the loss too Ioav. Before proceeding further with this point, we will take up one which goes more directly to the merits.

Counsel for defendant insists his client is not liable for the damage done by rain to plaintiff’s property and especially to property carried into the building-after the fire. We think this question was adjudicated on the former appeal; but as it has been renewed and earnestly pressed, we have re-examined it with care. If defendant as landlord was bound to protect plaintiff as tenant against any loss from negligence in repairing the roof, the duty of protection would extend to any property which the exigencies of plaintiff’s business of dealer in paints, might require him to have in the building while the roof was being repaired, and we do not see that he would be any more careless in taking-goods in during the progress of the work than in failing- to remove such as were already in. But suffice to say on this point, the court left it to the jury to say Avhether or not plaintiff was guilty of contributory negligence in placing goods in the building while the roof was undergoing repairs. The decisions are inconsistent on the question of a landlord’s liability for loss to a tenant occurring from the negligence of a contractor employed by the former to make repairs; and those - cases which affirm liability disagree as to the reasons for the rule. A standard treatise cites cases said to hold the landlord, if not himself chargeable with negligence in the matter, is not answerable to the tenant for injury due to the contractor’s negligence; that is to say, if the landlord procures a skilful contractor and takes due care to stipulate for the tenant’s protection in letting the contract, he is not responsible. [18 Am. and Eng. Ency. Law (2 Ed.), 237.] These cases are: Blake v. Woolf (1898), 2 Q. B. Div. 426; Wiese v. Remme, 140 Mo. 289, 41 S. W. 797; Mahon v. Burns, 9 Misc. (N. Y.) 223; O’Connor v. Schneppel, 12 Misc. (N. Y.) 356; Morton v. Thurber, 85 N. Y. 550; Brennan v. Ellis, 70 Hun (N. Y.) 472. In another paragraph the same treatise says there is excellent authority for the vieAY that the landlord, if he undertakes repairs, owes the tenant the duty of executing them carefully and cannot escape responsibility for the performance of this duty by employing'a contractor; citing O’Rourke v. Fiest, 42 N. Y. App. Div. 136; s. c., 24 Misc. (N. Y.) 762. This text-work comments on the conflict of decision in the New York cases dealing with the question and might have commented on the clash of opinion in other jurisdictions. The general rule is that a proprietor, whether landlord or not, who lets a contract for work to a competent person exercising an independent employment, to be done according to' the latter’s methods and free from the control of the proprietor, is not answerable for negligence in performing, the work, unless it is subject to unusual danger if precautions are not taken. [1 Thompson, Comm. Neg., sec. 621.] In Bush v. Steinman, 1 Bos. & Pul. 404, it was held an ownér of land was liable for all injury inflicted by tbe negligence of employees engaged in doing work on tbe land, tbougb they were servants of an independent contractor. Tbis decision introduced a distinction between tbe liability of a landowner in tbis regard and that of other persons wbo let out work to independent contractors. But tbe doctrine bas been generally rejected and tbe case overruled. [1 Thompson, sec. 620.] Tbe text-work just cited says tbe modern view is that if one engages a contractor to do an act which may be done in a lawful manner, and tbe contractor, in doing it, unecessarily commits a>nuisance whereby injury results to a third person, tbe employer of tbe contractor is not liable; but' that if tbe injury directly results from tbe work tbe contractor is engaged to do, tbe employer is liable equally with tbe contractor. [1 Thompson, sec. 645.] Tbe learned author then proceeds in succeeding sections, to discuss tbe various exceptions to tbe general rule that a proprietor is not ordinarily responsible for tbe consequences of tbe negligence of an independent contractor. [1 Thompson, cb. XX.] We are concerned with tbis question only in so far as it relates to tbe liability of a landlord for loss resulting to bis tenant in tbe course of repairs made by a contractor and in consequence of tbe latter’s negligence. In Wiese v. Remme, 140 Mo. 289, a landlord bad employed a contractor to build an outhouse on premises let to a tenant. In doing tbis work tbe contractor carelessly left an excavation unguarded for several months. It filled with water and a child of tbe tenant fell into it and was drowned. In an action against the landlord be was exonerated on tbe ground that tbe work was not of a dangerous character, did not necessarily create a nuisance and, as far as tbe evidence showed, had been let to a competent contractor. In Burns v. McDonald, 57 Mo. App. 599, tbe same rule of decision was followed. It does not appear in tbe opinion in said case that tbe action was by a tenant, but by referring to tbe original record we found it was. Tbe defendant had employed a plumber to make repairs on tbe premises and tbe plumber removed a grate from a bole in a passageway, thereby leaving tbe bole exposed. Tbe tenant fell through tbe trap-door, was injured and sued for damages. Tbe court held tbe lessor was not responsible, ranging tbe case under tbe general rule above quoted, that a party who employs a competent contractor to do work is not answerable for tbe contractor’s negligence. Other cases bolding tbe same doctrine in actions between landlords and tenants are those first above cited. We- will .state some of the grounds on which- lessors have been held responsible to tenants for losses resulting from tbe fault of contractors employed to make repairs on tbe tenement. In tbe following cases tbe landlord was said to be responsible if be failed to stipulate with tbe contractor that tbe latter should protect- tbe tenant or failed to take other measures to see care was used in the performance of tbe work. [Sulzbacher v. Dickie, 8 Daly (N. Y.) 659; 51 How. Pr. 500, 519; O’Rourke v. Fiest, 42 N. Y. App. Div. 136; Robbins v. Atkins, 168 Mass. 45.] The landlord is liable if tbe work contracted for is inherently dangerous or will necessarily cause a nuisance. [Brown v. Peate, 1 Q. B. Div. 221; Sulzbacher v. Dickie, 51 How. Pr. 500; Norwalk Gas Co. v. Norwalk, 63 Conn. 496; 1 Thompson, Neg., 648, 652 inclusive.] Sometimes tbe person to whom tbe work is let is treated as tbe agent of tbe proprietor and not as an independent contractor, and tbe landlord held answerable as a principal. [Worthington v. Parker, 11 Daly (N. Y.) 545.] In other cases tbe liability is based on tbe mere relationship of landlord and tenant. [Nahm v. Newspaper Co. (Ky.), 87 S. W. 296; Maloney v. Brady, 14 N. Y. Supp. 794; 18 N. Y. Supp. 757.] A lessor has been held answerable to tbe lessee because the former covenanted to make repairs, it being ruled that such a covenant hinds the lessor to see the repairs are so made as not to injure the tenant. [Blumenthal v. Prescott, 75 N. Y. Supp. 710; Prescott v. Lecont, 82 N. Y. 411; Peerless Mfg. Co. v. Bagley, 126 Mich. 225; Lasker Real Estate Co. v. Hatcher, 28 S. W. 404.] And if the lessor undertakes to have repairs made when he has not covenanted to do so, he has been held responsible for the negligence of a contractor employed to do the work. [Wertheimer v. Sanders, 95 Wis. 573; Wilber v. Follansbee, 97 Wis. 577.] In Illinois the lessor has been held answerable for the contractor’s negligence, because entire possession and control of the premises was not turned over to the latter during the progress of the work. [Glickauf v. Maurer, 75 Ill. 289; Anderson v. Moore, 108 Ill. App. 106.] The case of Wiese v. Remme, 140 Mo. and Burns v. McDonald, 57 Mo. App. supra, stand in the way of the application of some of the foregoing rules of decision. They exclude liability on the ground of the relation of lessor and lessee, or the bare fact that the lessor undertook to have repairs made, or because he. did not relinquish the entire possession of the premises to the contractor, or on the theory that the contractor was the lessor’s agent. But those two cases did not involve a covenant by the lessor to make repairs, or the fact that the work was necessarily dangerous to the tenant unless unusual precautions were taken. If a covenant by the lessor is looked to as ground for his liability for injury due to an independent contractor’s fault, the question occurs, whether a simple covenant to repair without more, can be interpreted to render the proprietor liable if he employs a competent contractor and the work requires no unusual precautions to prevent injury to the tenant. Of course the covenant may be in terms broad enough to place responsibility on the lessor by explicit words or clear inference — may bind him to answer for all damage occurring in the course of the work. [Water Co. v. Ware, 16 Wall. (U. S.) 566.] When the covenant is not so broad, it can be argued the tenant takes the risk of injury from the contractor’s negligence, just as he would if he, and not the lessor, let out the work. Ordinarily a proprietor, a tenant, or any one else who engages a contractor to repair a building, does no more to secure safety in the performance of the work than to let it to a competent person, and is not expected to do more. But when the work is dangerous to a tenant, unless unusual precautions are observed, the lessor can be held liable — a doctrine consistent with the general principles of the law of torts; and under the facts of this case we need not rest our decision on any less stable basis, even though a bare covenant to repair may be enough to make the covenantor liable for the default of a contractor. [1 Thompson, Neg., 652; 1 Shear, and Redf., Neg. (5 Ed.), 175; Woodman v. Railroad, 149 Mass. 335.] The evidence shows the repairs to the roof in question were extensive and the weather extremely inclement when the contract for them was let. The work greatly endangered plaintiff’s property and precautions to protect it, according to the evidence, would have been expensive and have gone much beyond those commonly incident to putting on a roof. The contractor was, of course, bound to take ordinary care and adopt the customary expedients for the protection of the occupants of the building. But in the present instance a temporary roof and other safeguards were necessary; and there is testimony the ucontractor was not bound, according to the usual course of business, to adopt such expedients. It would be unreasonable to hold defendant might perform its covenant to make these repairs which required precautions of extraordinary expense and labor, by simply turning the job over to a contractor, without stipulating the precautions should be taken or agreeing to compensate the contractor for tbe increased cost. For this reason it is the opinion of the Avriter, that defendant justly may be held answerable for the loss occurring during the performance of his covenant, and Avithout ignoring the precedents in this State or those best considered of other jurisdictions. The same doctrine Avas followed in Pye v. Faxon, 156 Mass. 471, on facts not materially different from those before us.

We will now resume consideration of the alleged error of permitting the plaintiff to use the appraisers’ list while testifying. The rule regarding the use qf a memorandum to refresh a witness’ memory is applied under two conditions;'first Avhen the witness’ memory of what occurred is either revived or refreshed by looking at the memorandum; that is to say, when he is able to testify from the memory he has of the facts; second, when he has no present memory about the matter which is either revived or refreshed from the memorandum; but originally knew the facts and Avhile he knew them, made or verified a record of them. [1 Wigmore, Evidence, secs. 735 to 764, inclusive, and cases cited; 1 Greenleaf, Evidence (Lewis Ed.), secs. 437, et seq.; Wharton, Evidence (3 Ed.), secs. 516, et seq.] In the latter instance, though the witness has no independent knowledge or recollection at the time he is testifying, he may swear the memorandum is correct to his knowledge; and, according to many authorities, it may then be read to the jury as a statement, or as auxiliary to the witness’s testimony [1 Wigmore, sec. 754 and citations; 1 Greenleaf, sec. 437, note .3; 1 Wharton, sec. 520.] If a witness has a recollection which is either revived or refreshed by reading a memorandum or document, it is immaterial who made the document, or whether it was made under the supervision, or even in the presence of the witness. The essential fact is that after looking at it, the witness has a present memory of the facts. [1 Wigmore, sec. 758, et seq.; Hill v. State, 17 Wis. 675.] And perhaps this is true, too, when the witness has no present recollection, but knows he once verified the document to be used as a memorandum and found it accurate. Let ns see if the list made by the appraisers and from which plaintiff in the present case testified, falls within either of the two classes of memoranda by which a witness’ testimony or recollection may be assisted. It is apparent that plaintiff did not know, or claim to know, and that in the nature of things he could not know with any certainty, the list of the damaged articles put down by the appraisers was correct. This is true because he neither went through the stock with the appraisers and saw What articles they noted as damaged, nor did he afterwards take their lists and verify them by a comparison with the stock. The extent of his knowledge was that from the two lists the appraisers made while going through the stock, they afterwards made up a third list in his presence from which he testified. Hence plaintiff’s testimony was incompetent to identify this list as an accurate statement of the damaged goods. His testimony was also incompetent to prove the amount of damage set opposite each item was correct, because he had not observed the different articles, either when the appraisement was made, or afterwards, for the purpose of determining whether the appraisement was correct. It folloAVS that plaintiff’s testimony was incompetent to prove the appraisers’ list so as to make it evidence.

The next question is whether his state of mind regarding the damage was such that he might use the list to give him present memory, either by causing him to recollect what he had entirely forgotten, or to refresh an imperfect recollection. It is true he said the list was correct; but it is manifest from his whole testimony on the voir dire that he had no such knowledge. He knew, in a general way, what goods had been damaged, but the appraisers’ list went into figures and par-, ticulars, and he did not pretend he recollected the number of each class of articles; even after he saw the number on the written list. He had no -knowledge of the details as they were shown on the memorandum, either from seeing the appraisers at work, or verifying their notings. Hence when he read from the memorandum, his testimony was pure hearsay as to the quantity of the respective goods , which were damaged. And he did not agree with the appraisers as to the damage assessed, but said his own judgment was, the loss was greater. Yet he did not give an independent estimate of the loss, but contented himself with swearing to the estimate made by the appraisers. We do not think this was testimony in any proper sense, but a rehear sal by the witness of what the appraisers had done. Wharton, says (secs. 521, 522) an unverified copy of notes made by some one else is not admissible; citing Lovell v. Wentworth, 39 Ohio St. 614. Further, that where a person made entries in an account book as they were read to him by another from memorandum kept by the latter, within whose knowledge alone is the correctness of the charges, the entries are inadmissible to refresh the memory, unless the witness can swear he knew at the time they were true, citing Thomas v. Price, 30 Md. 483; Richmond v. Atkinson, 58 Mich. 413. And, further, that a memorandum may be used to refresh the memory although the document was not made by the witness if he saw the paper shortly after the event and verified the accuracy of the entries, citing, Coffin v. Vincent, 12 Cush. 98; Hill v. State, 17 Wis. 675, See, too, White v. Wilkinson, 12 La. Ann. 359; Bradley v. Davis, 26 Maine, 45; Railroad v. Adler, 56 Ill. 345. But it is said this testimony, even though incompetent, was not harmful to the defendant because the appraisers testified to the same facts. We cannot agree to this proposition. One of the main issues in the case was the amount of loss sustained by plaintiff, and tbe evidence regarding the issue was extremely conflicting. It was in evidence the plaintiff had himself admitted, immediately after the loss occurred, that it would not exceed $50; yet the verdict of the jury was a trifle higher than the amount of the appraisement. The weight of the evidence relevant to the issue was involved, and it may be that the plaintiff’s incompetent testimony inclined the scale in his favor.

The judgment is reversed and the cause remanded.

All concur.