Mermod, Jaccard & King Jewelry Co. v. Hellmuth, Obata & Kassabaum, Inc.

615 S.W.2d 93, 1981 Mo. App. LEXIS 2761
CourtMissouri Court of Appeals
DecidedApril 7, 1981
DocketNo. 41486
StatusPublished
Cited by2 cases

This text of 615 S.W.2d 93 (Mermod, Jaccard & King Jewelry Co. v. Hellmuth, Obata & Kassabaum, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mermod, Jaccard & King Jewelry Co. v. Hellmuth, Obata & Kassabaum, Inc., 615 S.W.2d 93, 1981 Mo. App. LEXIS 2761 (Mo. Ct. App. 1981).

Opinion

SMITH, Presiding Judge.

Plaintiff, Mermod, Jaccard & King Jewelry Company appeals from the action of the trial court in granting judgments in accordance with defendants’ motions for directed verdict in a case in which the jury returned a verdict in favor of plaintiff and against both defendants in the amount of $52,-029.93. We affirm.

Plaintiff’s action arose from a fire which occurred in premises leased from defendant Helmsley by defendant Hellmuth, Obata, and Kassabaum, Inc. (H.O.K.) an architectural and engineering firm. The fire occurred on the second floor of the Syndicate Trust-Century Building. Plaintiff, a retail jewelry business, was located on the first floor of that building beneath the H.O.K. premises. The fire was a major conflagration and the fire department utilized vast quantities of water to extinguish it. As a result of the fire and the efforts to extin[94]*94guish it, plaintiff sustained substantial smoke and water damage to its premises. Plaintiff sought recovery upon the theory that defendants, five years before the fire when the second floor offices were being renovated for H.O.K.’s occupancy, dismantled and disabled an existing sprinkler system which would have extinguished or controlled the fire if the system had been operating at the time of the fire and which would have made it unnecessary to utilize more than a small amount of water to extinguish the fire. It was alleged that this action of defendants constituted negligence and was the proximate cause of the property damage sustained by plaintiff.

The parties have briefed a number of issues, including their dispute as to the effect of the trial court’s action in sustaining the defendants’ motions “on the grounds set forth in [their] motion at the close of all the evidence.” These grounds encompassed twenty-seven separately numbered paragraphs in H.O.K.’s motion and nine separately numbered paragraphs in Helmsley’s motion. Relying upon Fowler v. Terminal Railroad Association of St. Louis, 372 S.W.2d 497 (Mo.App.1963) plaintiff contends that the court’s action did not specify the grounds for the court’s action which resulted in hardship and confusion to plaintiff and this court and made the order rebuttably presumptively erroneous. This it is claimed casts the burden upon defendants to support the trial court’s action. Defendants argue that the order is specific and plaintiff bears the burden of demonstrating error. We need not resolve the dispute for regardless of who has the burden the order of the trial court was correct in law and should be affirmed.

We need deal with only one issue— whether the evidence established the existence of a duty from defendants to plaintiff. Plaintiff places its reliance upon Washington University v. Aalco Wrecking Co., 487 S.W2d 487 (Mo.1972) and Fireman's Fund Insurance Co. v. Aalco Wrecking Co., 466 F.2d 179 (8 Cir. 1972) cert. den. 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973). These cases, both arising from one fire, recognized the common law doctrine that:

“If an owner of property negligently allows the spread of a fire on his premises, he may be liable for injury to others even though he has no connection with the fire’s origin.” Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., supra, [5].

Before discussing the scope of this common law doctrine it is advisable to establish the factual areas in which the parties are in agreement. First, there is no evidence that defendants wei;e responsible, negligently or otherwise, for the fire. The only evidence of the cause was established by plaintiff’s expert as arson by an unknown person or persons. Secondly, the evidence establishes that neither defendant was aware of the fire until after the damage had occurred and that no action of defendants at the time of the fire contributed to its spread or the damage suffered by plaintiff. Thirdly, the evidence clearly established, and plaintiff concedes, that no statute nor ordinance required a sprinkler system in H.O.K.’s premises or precluded the removal of the system allegedly in place and in operation at the time the H.O.K. space was renovated. Finally, there was no evidence of any statutory or ordinance violation of any kind by either defendant prior to or at the time of the fire, and the H.O.K. premises were in full compliance with all building and fire code requirements at the time of renovation and prior to the fire.

We do not believe that either of the Aal-co cases, supra, addresses the issue in this case of the scope of the duty of the owner or occupier of premises to his neighbor as it relates to fire. Both cases proceeded on the question of whether a breach of duty occurred. Neither delineated the circumstances under which a duty arises. The duty to take preventive action against reasonably anticipated dangers as established by the courts of this state arises if there is some probability or likelihood, not a mere possibility, of harm occurring. Tharp v. Monsees, 327 S.W.2d 889 (Mo.banc 1959) [2-5]; Irby v. St. Louis County Cab Co., 560 S.W.2d 392 (Mo.App.1977) [5-9]. In the Aalco cases the evidence warranted a find[95]*95ing of violation of an ordinance which required the presence of a watchman at a demolition site. Each also recognized that a demolition site is highly susceptible to fires, creating a known danger. The failure to provide a watchman was found to be a violation of duty and negligence per se in the Washington University v. Aalco case. The existence of demolition created a duty in both cases to protect against a known danger. The scope of this common law duty as it pertains to the spread of fires and when it arises has been more completely delineated in cases from other jurisdictions.

The leading case in this regard is Centraal Stikstof Verkoopkantoor N.V. v. Pensacola Port Authority, 205 F.Supp. 724 (D.C. Fla.1962) affd. 316 F.2d 189 (5 Cir. 1963). That case involved a wooden warehouse owned by defendant which burned spreading the fire to a nearby warehouse containing goods belonging to plaintiff. The negligence charged was the failure of defendant to have fire fighting equipment, alarms or a watchman to prevent the spread of fire. The court after setting forth the law stated:

“In this case the Court finds that the complaint fails utterly to show a duty owing from defendant to plaintiff to maintain fire extinguishing apparatus, alarms and watchman. Nowhere in the common law has the Court been able to find a duty on a property owner to provide these things merely because it is possible that the adjacent property, being combustible, could catch fire. This is valid in the absence of allegation that the premises contained dangerously inflammable or explosive materials or that the defendant used fire for its own purposes on the premises. Such allegations raise a distinctly different standard. The imposition of such a duty here could lead to results at once harsh and unreasonable.” 1. c. 727.

Of similar import is Comfort v. Stadelman Fruit, Inc., 285 Or.

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615 S.W.2d 93, 1981 Mo. App. LEXIS 2761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mermod-jaccard-king-jewelry-co-v-hellmuth-obata-kassabaum-inc-moctapp-1981.