Birmingham Ry., Light & Power Co. v. Buff

• Decision Date: 20 December 1917
• Docket Number: 6 Div. 436
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. BUFF.
• Court: Alabama Supreme Court

77 So. 388

201 Ala. 94

BIRMINGHAM RY., LIGHT & POWER CO. v. BUFF.

6 Div. 436

Supreme Court of Alabama

December 20, 1917

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by C.A. Buff, as administrator of the estate of Washington M Childress, against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The first count alleges that the defendant occupied in the conduct of its business a building three stories or more in height, not including the basement, and that on said day while plaintiff's intestate was in the service or employment of defendant, and was engaged in or about the work for which he was employed by defendant to do in an upper story of said building, to wit, the fourth story thereof said building caught fire, and as a proximate consequence thereof plaintiff was so burned, etc., that he was caused to fall, jump, or be thrown from said building to the street below, and to die. Plaintiff avers that defendant negligently failed to furnish said intestate with a reasonably safe place in which to do and perform the work for which defendant had employed plaintiff's intestate to do, and which he was engaged in or about doing in said upper story of said building on the occasion aforesaid, and as a proximate consequence of said negligence, the death of plaintiff's intestate was caused. The other counts sufficiently appear.

The charge made the basis of the seventh assignment of error is as follows:

The law does not impose on the tenant of a building the duty of constructing an external escapeway from said building.

Tillman Bradley & Morrow, of Birmingham, for appellant.

Harsh, Harsh & Harsh and Percy, Benners & Burr, all of Birmingham, for appellee.

SAYRE J.

The complaint in its several counts shows that the building, occupied by defendant and on the fourth floor of which plaintiff's (appellee's) intestate was engaged in and about the work for which he was employed by defendant, caught on fire whereby plaintiff--we presume the pleader intended to say plaintiff's intestate--was so burned, asphyxiated, or otherwise injured that he was caused to fall, jump, or be thrown from the building to the street below and to die.

The first count, framed under the common law, declared upon defendant's negligent failure to furnish intestate with a reasonably safe place in which to do and perform the work for which he was employed. The only objection taken to the count in a manner requiring notice is that a reasonable degree of care in the premises alleged did not exact of defendant the duty of providing against the unforeseen and unusual danger of a fire. The old common-law rule, adopted of course with reference to the buildings of the time, was that where a building was properly constructed for the use to which the occupant was putting it, and was not peculiarly exposed to fire from the character of the work carried on within it, the occupant was not required by any duty he owed to his employés therein to provide against so remote a contingency as the destruction of the building by fire otherwise than by the ordinary means of stairways, halls, doorways, and windows. Jones v. Granite Mills, 126 Mass. 84, 30 Am.Rep. 661; Pauley v. Steam Gauge & Lantern Co., 131 N.Y. 90, 29 N.E. 999, 15 L.R.A. 194. Pretermitting at this point statement as to how that rule has been affected by the appearance of the modern skyscraper and-- apart from the provision of section 7095 of the Code--the alleged necessity for specially constructed fire escapes upon such buildings, it suffices to say that a degree of care to conserve the safety of its building for employés therein, whatever the character of the building, was required of defendant, and that under our system of pleading the most general allegation of default therein is permissible. The demurrer to the first count of the complaint was properly overruled.

Like considerations lead to the conclusion that the court did well to overrule the causes of demurrer alleged against the second and fourth counts of the complaint, which counts charged negligence under the superintendence clause of the Employers' Liability Act.

Count 5 of the complaint was evidently framed under section 7095 of the Code, which reads as follows:

"7095. Fire Escapes.--Any owner, proprietor, or manager of any hotel, office building, school building, store, or manufacturing building, which is more than two stories high, now erected, who shall fail for six months after the adoption of this Code to have securely fixed and conveniently arranged so as to be accessible to persons lodging in, working in, or occupying such building, *** good and sufficient fire escapes or ladders for each story of said building, shall be guilty of a misdemeanor," etc.

The count alleges that "defendant in the conduct of its business" occupied the building, and "that the said building was an office building, store, or manufacturing plant, and was more than two stories high, and defendant had been in possession of and using said building for more than six months immediately preceding and up to the time of said death, and wrongfully failed to have securely fixed and conveniently arranged so as to be accessible to said intestate, who as such employé of defendant was working in or occupying an upper story of said building at the time of said fire in said building, good and sufficient fire escapes or ladders for the said story of said building on which said intestate was on the occasion aforesaid, and as a proximate consequence of said wrong said intestate's death was caused." The effort, we take it, and the parties so consider it in their briefs, was to charge a violation of the statute, and the point of the demurrer is that the count fails to show that defendant was the owner, proprietor, or manager of the building.

The statute, though it operates to provide a remedy for persons injured by a violation of its terms, is highly penal. While its purpose is not to be defeated by a construction too narrow and strict, yet it imposes a duty unknown to the common law, punishes a neglect of that duty criminally, and it scarcely needs to be said, its condemnation cannot be extended by implication to persons who do not fairly come within its terms. Schott v. Harvey, 105 Pa. 222, 51 Am.Rep. 201. The intention of a penal statute must be found in the language actually used, interpreted according to its fair and obvious meaning. "It is not permitted to the courts, in this class of cases, to attribute inadvertence or oversight to the Legislature when enumerating the classes of persons who are subject to a penal enactment, nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute." United...