Shanander v. Western Loan & Building Co.

BARTLETT, J. pro tem.

This is an appeal from a judgment in an action wherein a jury rendered a verdict against appellant for damages to personal property in the sum of $1,500.

The facts are not in dispute and are briefly these. Respondent was a lessee of an apartment in an apartment house which contained 72 units. Water was supplied to the tenants which was brought to this building by pipes. When respondent left her apartment on September 18, 1948, at about 6:15 p. m., her apartment was dry and in good order. She returned between 2 and 3 o’clock in the morning and found her apartment dripping wet as were her personal effects located there. The manager of the apartment house, between 2 and. 3 o’clock of that same morning, was called to the apartment above the one occupied by respondent and found water pouring out of a break in the cold water pipe leading from the floor to the faucet in the bathtub. He immediately shut off the water in the entire apartment house. An examination disclosed that the break had taken place underneath a curving edge of the bathtub where it was hidden from view. A metal flange concealed in a nut into which the pipe fitted had broken permitting the pipe to pull out and water to flow out of the pipe onto the floor. The appellant had had no notice of any fault in this plumbing up to this time.

The complaint was based on two causes of action. The first one was on negligence of the landlord in the manner in which it managed, operated and maintained its apartment building. The second did not allege negligence but alleged that appellant maintained on its premises large quantities of water and other fluids which, on the date of the accident, it “suffered, caused and permitted’’ to flow upon and over the personal effects kept by respondent in her apartment.

The court refused all instructions offered relating to negligence and instructed the jury that, as a matter of law, the defendant was liable for damages suffered as a proximate result of the accident and that the only question submitted to them was the amount of respondent’s damages, if any. The only question, therefore, before us on this appeal was whether or not this was a case of absolute liability. Respondent’s theory as to why it was, is clearly set forth in an instruction which the

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court, including the words in Latin, gave to the jury. It was as follows: “You [are] instructed that the water which did the injury to plaintiff, if any, was not a natural stream flowing across defendant’s premises, but was brought upon the premises by artificial means. And the rule is general that, where one brings a foreign substance upon his premises, he must take care of it and not permit it to injure his neighbors. The law upon the subject is tersely expressed in the maxim,