Derboven v. Stockton

• Decision Date: 20 December 1972
• Docket Number: Nos. 25406 and 25411,s. 25406 and 25411
• Citation: 490 S.W.2d 301
• Parties: Joseph Littleton DERBOVEN, a minor by His Next Friend Ernest Derboven, et al., Appellant-Respondents, v. Elbert H. STOCKTON and Ruth M. Stockton, Respondents-Appellants, and Ray Curtis, Respondent.
• Court: Missouri Court of Appeals

Page 301

490 S.W.2d 301

Joseph Littleton DERBOVEN, a minor by His Next Friend Ernest Derboven, et al., Appellant-Respondents, v. Elbert H. STOCKTON and Ruth M. Stockton, Respondents-Appellants and Ray Curtis, Respondent.

Nos. 25406 and 25411.

Missouri Court of Appeals, Kansas City District.

Dec. 20, 1972.

Motion for Rehearing and/or Transfer Denied Jan. 22, 1973.

Application to Transfer Denied March 12, 1973.

William O'Donnell Lee and Hunter, Chamier & Lee, Moberly, David Collins, Hadley E. Grimm and Collins & Grimm, Macon, for appellants-respondents, Derboven.

Hulen, Hulen & Tatlow, Moberly, for respondents-appellants, Stockton.

Channing D. Blaeuer, John L. Port, Moberly, for respondent, Curtis.

DIXON, Judge.

This case, written on reassignment, involves an appeal from a judgment in a death action against the landlord defendant and a cross appeal by the plaintiff from a judgment in favor of the tenant defendant. The appeal involves complex issues both procedural and substantive which can best be presented against the detailed background both factual and procedural.

The trial of this wrongful death action in the court below resulted in a jury verdict of $15,000 in favor of plaintiffs against Elbert H. Stockton and Ruth M. Stockton, defendants and lessors of the Randolph Tavern where the thirty-three year old decedent, Ruby Elizabeth Derboven, perished in a fire which had its origin in an act of arson. The plaintiffs were the husband and two minor sons of the decedent. The jury returned a verdict in favor of the defendant, Ray Curtis, the lessee and proprietor of the tavern at the time of the decedent's death. This appeal has been taken by the defendants Stockton from the judgment against them. The plaintiffs appeal that part of the judgment favorable to the defendant Curtis.

The defendants Stockton had owned the Randolph Tavern for eleven years prior to leasing it to Ray Curtis on January 1, 1968. The lease divided the maintenance responsibilities--the lessor agreeing to care for the 'exterior and primary structure' and the lessee agreeing to maintain the 'interior' of the leased building.

The defendant Curtis opened the tavern for business on February 9, 1968, seven days before the decedent was killed; and both Curtis and the defendants Stockton testified that they were thoroughly familiar with the premises prior to that opening date. The Randolph Tavern sold beer but no prepared foods and had a capacity of about twenty-five people.

On February 16, 1968, while the decedent was seated near the rear of the tavern Bill Coleman entered carrying a bucket containing about four gallons of gasoline. He proceeded to hurl the gasoline against the east wall and upon a bowling machine located near the front of the barroom. Coleman then ignited the gasoline and fled through the front door. Three of the patrons also managed to escape through the front door, but the remaining twelve people in the tavern, including the decedent, were killed.

The barroom of the Randolph Tavern was, in relevant detail, rectangular in shape--about eighteen feet in width from east to west and about forty feet in length from the south or front exterior wall to the north or rear interior wall. There were two possible routes of exit from that room. The first, a doorway located in the center of the front wall, was the main entrance to the tavern which was used by all patrons and deliverymen. That door was hinged so that it would open inwardly and could not be made to swing outward. The second possible route of exit was from the northeast corner in the rear of the barroom area. There an opening with no door in the rear interior wall gave access to a small utility area containing a refrigerator and water heater. This utility area was about nine feet in width, east to west, and about four feet in depth, south to north. On the rear wall of the utility area was an interior door which, when opened, provided access to a hallway which was eighteen feet long and led to the rear of the building. An exterior door at the end of the hallway opened to the alley behind the building. The opening to the utility area, the interior door, and the exterior door provided a straight path of exit from the barroom into the alley without changing directions or turning corners. Both the interior door and the exterior door were hinged in such a fashion that it was necessary for one exiting to pull the doors open, and it was impossible to pass through either door by pushing it open. Eight of the twelve bodies found after the fire, including the body of the decedent, were in the utility area and six of those eight bodies were 'piled' against the interior door.

Including the arsonist, there were sixteen persons in the tavern when the fire commenced. Four escaped through the front door. The last to escape from the front door was a 70-year-old man seated approximately eight feet from the front door. All the others, except the arsonist who was apparently first out, were closer to the door. The fire was near the center of the room, and the decedent was seated within a distance of six to eight feet from the north or rear wall. All of those who were killed moved toward the north wall from their positions prior to the fire and to the route of exit through the rear hall. Six bodies were piled against the interior door, including decedent. Two more were close to the six and within the areaway or cubbyhole. Four more were at varying distances from the rear door, but all were north of the center of the room where the fire damage was the greatest. The plaintiffs below alleged that the maintenance of the doors in this fashion was a breach of the duty imposed upon defendants by statute, ordinance, and the common law; and that as a result of this breach of duty, plaintiffs sustained damages.

Over the defendants' objection, Section 320.070 of the Revised Statutes of Missouri (all references are to RSMo 1969 unless otherwise noted) was read before the jury. That section provides:

'All the doors for ingress and egress to and from all public schoolhouses and all other public buildings, and also of all theaters, assembly rooms, halls, churches, factories with more than twenty employees, and of all other buildings or places of public resort whatever, where people are wont to assemble, excepting schoolhouses and churches of one room and on the ground floor, which shall hereafter be erected, together with all those heretofore erected and which are still in use as such public buildings and places of resort, shall be hung as to open outwardly from the audience rooms, halls or workshops of such buildings or places; provided, that said doors may be hung of double-jointed hinges so as to open with equal ease outwardly and inwardly.'

Furthermore, Sections 106.1, 108.0 and 108.36 of the 'Abridged Building Code' adopted by reference as an ordinance of the City of Moberly were entered as plaintiffs' exhibits and read to the jury over defendants' objection. Those sections provide as follows:

'The legal use and occupancy of any building or structure existing on (date of adoption of this code), or for which it had been heretofore approved, may be continued without change when such use is not detrimental to the general safety and welfare of the public, provided the building is not enlarged in height or area and the exit facilities are adequate for a new building of the same use and occupancy load.' Sec. 106.1 BOCA Abridged Building Code.

'Every building and structure and part thereof hereafter erected shall have adequate exitways providing safe and continuous means of egress to a street, or to an open space with direct access to a street as herein provided. The owner or lessee of every existing building and structure shall be responsible for the safety of all persons in or occupying such premises with respect to the maintenance and adequacy of means of egress therefrom.' Sec. 108.0 BOCA Abridged Building Code.

'. . . All exit doors shall be hung to swing in the direction of exit travel without obstructing the required width of exitway. All exit doors shall be fitted with hardware, locks, and fastenings which can be readily opened from the inner side without the use of keys except as herein provided for dwellings and for assembly and institutional buildings. Draw bolts, hooks and other similar devices shall be prohibited on all required exit doors . . .' Sec. 108.36 BOCA Abridged Building Code.

The ordinance sections above were not pleaded in the plaintiffs' original petition, but were pled in an emended petition filed on the first day of the trial just prior to swearing of the jury. The defendants introduced into the record the sections that had been the basis, in part, for the plaintiffs' claim of negligence in the original petition. Those sections differed from the sections cited in the amended petition in that they were non-self-executing. They provided as follows:

'606.1 Owner Responsibility.--The owner or lessee of every existing building and structure shall be responsible for the safety of all persons in or occupying such premises with respect to the adequacy of means of egress therefrom.'

'606.21. Inadequate Exits.--In any existing building or structure, not now provided with exit facilities as herein prescribed for new buildings and in which the exits are deemed inadequate for safety by the building official, such additional provision shall be made for safe egress as he shall order.'

Sections 606.1 and 606.21 had never been formally adopted by the City as ordinances.

The evidence indicated that the Building Inspector of the City of Moberly did inspect the Randolph Tavern just prior to its opening in February of 1968; but no certificate of occupancy and compliance was issued, although the business was permitted to open subsequent to the inspection. The Building Inspector testified that there was 'no reason to issue a certificate when there has been no changes made in the...