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Vollkommer v. Menge

Decided: May 28, 1937.

CATHERINE VOLLKOMMER, PLAINTIFF-RESPONDENT,
v.
AUGUST G. MENGE, EXECUTOR OF THE ESTATE OF FREDERICK BUGASCH, DECEASED, DEFENDANT-APPELLANT



On appeal from a judgment of the First District Court of Jersey City.

For the appellant, Carey & Lane.

For the respondent, Henry Pass and William Boorstein.

Before Justices Trenchard, Bodine and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. The gist of this action is the negligent performance of a landlord's gratuitous undertaking to repair the demised premises. There was a judgment for plaintiff; and defendant appeals. A prior judgment of nonsuit was reversed, and a venire de novo awarded, upon the ground that, due to an erroneous conception of the apposite legal principles, material evidence offered by plaintiff was barred. 116 N.J.L. 82.

The single point raised by the reasons for reversal is whether there is any basis in the proofs for the finding of negligence chargeable to the landlord. We think there is.

Evidence was introduced tending to show the following

matters of fact: On August 15th, 1930, the tenant, of whose family plaintiff was a member, rented the apartment in question. On October 20th, 1932, the tenant advised the landlord's agent for the collection of rents that "something was wrong with the stove" and the attached boiler, as evidenced by "noise" and "rumbling" when the stove was fired. On November 1st, 1932, the landlord, accompanied by the agent, called at the premises and learned from the tenant that the condition complained of had not abated. The landlord said he would "send a plumber." A day or two later, a plumber visited the premises and undertook the making of such repairs as were necessary to remedy the defects of both stove and boiler. He remained at work an hour or more. He had "his tools with him;" and plaintiff testified that, after attaching a valve to the boiler, he "worked inside of the range; he took a pipe and put a wire in it;" and that she knew (from observation) "he had a pipe and took a wire and put it through it, and then he attached it again" to the range. The pipe that was "taken off," and again attached after the plumber had "run a wire through" it, led "from the left part of the boiler to the left side of the stove." The repair work required the "dumping" of "the fire in the stove." Some time later, the landlord's agent inquired whether the plumber had made the repairs, and, upon receiving an affirmative reply, he inspected the apparatus. Thereafter, the tenant had "a small wood fire" in the stove "off and on" until November 6th ensuing, when the range exploded after it had been fired, and thereby the injuries made the basis of the suit were sustained. After the plumber had finished his work, the "rumbling continued * * * a little bit in the pipes still. * * * The noise was still there." Between the firing of the stove and the explosion, water dripped from the faucets in the sink adjoining the range.

A licensed plumber, who qualified as an expert, described this happening as "a water-back explosion of the range;" and he testified, in response to a hypothetical question embodying the evidence thus presented, that "the explosion was caused by the deposit of lime or rust in the circulation pipes or water-back

of the range, either of the two." And he also expressed the opinion that, "under the conditions, the pipes should have been removed and the water-back taken out and thoroughly cleaned of lime deposits." While he said the explosion could have occurred under other conditions, it was plainly a question of fact whether such conditions existed in the instant case. It is also to be observed that, while the landlord testified that the plumber usually employed to do his repair work, one Kull, had not ...


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