130 Mo. App. 296 | Mo. Ct. App. | 1908
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 testi
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 sec
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
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,
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 dam
The judgment is reversed and the cause remanded.