James Sheehan & Co. v. Babberis

Boot, J.

Appellant and respondent occupied portions of the same building, in the city of Seattle. The premises occupied by respondent were on the ground floor, and were used as a saloon, while those occupied by appellant were in the second story of said building immediately above those occupied by respondent, and were used as a restaurant. One Jack Barberis, who was the principal stockholder of appellant; obtained a lease on the entire building for a term of years. Before the matters complained of herein by respondent, said Jack Barberis and certain other parties formed the appellant corporation, the said Barberis putting into said corporation, as payment for his portion of the stock, all of the property he then owned in connection with said restaurant, including the lease aforesaid, the latter, however, not being formally assigned in writing. For a year or more, respondent claims that appellant negligently permitted-water to seep through the ceiling and run down into that portion of the building occupied as a saloon, greatly to the damage of respondent’s property and business. This' action was brought to recover damages therefor. From a judgment in favor of respondent, this appeal is taken.

Appellant maintains that the evidence does not show that the leakage and seepage was due to any negligence on the part of the appellant, and that there is nothing to show that it was other than accidental. One of respondent’s witnesses testified as follows:

“Sometimes the water would come down three or four times a week — sometimes twice a week. Once, there, it came down every day for a week or so; then it continuously kept coming down — sometimes in the back part of the room, and sometimes in front of the bar. So there was times that I couldn’t go up to tell Mr. Barberis, and I sent somebody up. ... It started, I believe; in January, 1903, and! continued until 1904; then Mr. Sheehan had the place remodeled, and a new ceiling put in, and everything.”

One of the former stockholders and officers of appellant testified as follows:

“Q. These complaints kept coming right along to you ? A. Well, they came right along two years — I don’t remember — every two or three days or week or two weeks they telephone, would be coming up!, because he says the water is running down. Of course, always I can say it is by accident that that water goes down; you see, because we had the plumber over it, to fix it. There was something wrong all the time. The water goes down, you see.”

There was considerable other evidence going to the fact and extent of said leakage, seepage and the damage occassioned to respondent thereby. This evidence was amply sufficient to justify the jury in believing that there must have been carelessness or neglect on the part of appellant, and to sustain the verdict. There was sufficient evidence to show that all property rights and interests in and by virtue of the lease which Jack Barberis had received were turned over to appellant corporation. The latter paid the rent, and usually with the checks of the corporation.

Finding no reversible error in the record, it is ordered that the judgment of the trial court be affirmed.

Mount, O. J., Dunbar, Hadley, Fullerton, and Crow, JJ., concur.