Rimco Realty & Investment Corp. v. La Vigne

• Decision Date: 21 October 1943
• Docket Number: 17059.
• Citation: 50 N.E.2d 953,114 Ind.App. 211
• Court: Indiana Appellate Court
• Parties: RIMCO REALTY & INVESTMENT CORPORATION v. LA VIGNE et al.

50 N.E.2d 953

114 Ind.App. 211

RIMCO REALTY & INVESTMENT CORPORATION v. LA VIGNE et al.

No. 17059.

Appellate Court of Indiana, in Banc.

October 21, 1943

Gerald A. Gillett and Kal Waller, both of Hammond, for appellant.

A E. & J. E. Tinkham and Charles Levin, all of Hammond, for appellees.

ROYSE Chief Judge.

Appellees sued appellant in the Lake Superior Court for damages to their personal property resulting from a fire in an apartment house owned by appellant and leased to appellees. The cause was venued to the Newton Circuit Court where it was tried by the court without the intervention of a jury, resulting in a finding and judgment in favor of appellees in the sum of $1,630.

The assignment of errors here is that the trial court erred in overruling appellant's demurrer to the complaint and in overruling its motion for a new trial.

The complaint was in eleven paragraphs. The material allegations of the complaint are substantially as follows: That appellant owned a three-story building, the first floor of which was used by retail stores and the second and third were divided into apartments to be used for living quarters. There were twenty-eight such apartments, and the tenants had a common right in the halls and stairways of said building; that there were more than fifty rooms in said living quarters; that there were no exterior fire escapes on said building. Appellees were tenants in one of said apartments. Appellant constructed controlled and maintained a garbage chute made of wood in said building, which chute extended vertically from the basement to the third floor and had openings on each floor that the apartment of appellees was immediately adjacent to said chute on the third floor; that appellant directed the tenants to use said chute for garbage and refuse; that the trays in said chute were allowed to become full of waste deposits and were not emptied frequently enough; that early in the morning of December 2, 1938, a fire originated in said chute and spread to the apartment of appellees, destroying personal property consisting of household goods, jewelry, clothing, etc.; that after appellant, through its agents, had knowledge of said fire it failed to warn appellees of the existence of said fire and did not call the fire department of the City of Hammond until after the fire was out of control; that appellant failed to keep a competent watchman on duty between the hours of nine P. M. and six A. M.

Appellant's demurrer, omitting the caption and signatures, is as follows: "Comes now the defendant in the above entitled cause and demurs to paragraphs one to eleven, each separately and severally and both inclusive of the plaintiffs' complaint herein filed and, for ground of demurrer, says:". This is followed by the signature and then a memorandum containing sixteen specifications.

Clause 5 of § 2-1007, Burns' 1933, § 111, Baldwin's 1934, provides as one of the causes for demurrer "That the complaint does not state facts sufficient to constitute a cause of action". Clause 6 of said section provides in part as follows: "That when a demurrer to any complaint is filed on the ground that the complaint does not state facts sufficient to constitute a cause of action, a memorandum shall be filed therewith, stating wherein such pleading is insufficient for want of facts". The memorandum cannot be used to supply defects in the demurrer. Keltner v. Patron, 1933, 204 Ind. 550, 553, 185 N.E. 270. No cause for demurrer having been specified, the trial court did not err in overruling the purported demurrer.

The second assignment alleges the trial court erred in overruling appellant's motion for a new trial. This motion for a new trial is not set out in appellant's brief, neither are the separately numbered specifications supported by propositions set out under "Propositions and Authorities", as required by Rule 2-17-(f). However, we believe appellant has made a good faith effort to comply with this rule and we will consider all specifications not waived for failure to discuss under the heading "Points and Authorities".

It is first contended by appellant that the finding and decision of the court is not sustained by sufficient evidence and is contrary to law.

This court will not weigh the evidence. Gary Railways Company v. Michael, 1941, 109 Ind.App. 672, 34 N.E.2d 159; Carlson, Administrator v. Kesler et al., 1935, 103 Ind.App. 350, 198 N.E. 451, 199 N.E. 889. It will only consider that evidence most favorable to the decision of the trial court. Wachter v. Dewes, 1940, 108 Ind.App. 469, 29 N.E.2d 1001; Menzenberger et al. v. American State Bank, 1935, 101 Ind.App. 600, 198 N.E. 819.

With these rules in mind we proceed to a consideration of the evidence. There is evidence in the record that the building involved was three stories high, the first floor being used for retail stores and the second and third stories containing twenty-six separate living apartments, the tenants of which had a common right to the use of the halls and stairways; that these living quarters on the second and third floors contained more than fifty rooms; that there was a vertical shaft approximately 2 1/2x2 1/2 made of wood in the building extending from the basement to the third floor. This shaft was used by the tenants at the direction of and with the knowledge and consent of appellant to dispose of garbage and other waste material, and on the morning of December 2, 1938, waste and refuse had been allowed to accumulate in this chute. At about 1:15 A. M. on said date a fire originated in this chute and traveled up to the third floor. There was an explosion from gasses in the chute; that it is not likely there would have been such an explosion if there had been no chute; that while it cannot be positively ascertained as to what caused the fire, it is probable that it was caused by spontaneous combustion; that there was no watchman on duty at the time of the fire. Appellees' apartment was adjacent to the chute on the third floor and the contents of their apartment was destroyed by fire and water.

Under this evidence the building here involved, is a tenement house, as defined in our statute, § 20-502, Burns' 1933 § 9306, Baldwin's 1934. Garbage chutes are prohibited in tenement houses. § 20-573, Burns' 1933, § 9377, Baldwin's 1934. Said building also comes under the provisions of § 20-104, Burns'...