Brodde v. Grosenick
| Decision Date | 03 October 1961 |
| Citation | 111 N.W.2d 165,14 Wis.2d 341 |
| Parties | Emil BRODDE and John Brodde, Plaintiffs-Appellants, v. Gilbert E. GROSENICK and Elmer Grosenick, Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Wolfe, O'Leary & Kenney, Robert W. Wolfe, Milwaukee, Edwin W. Knappe, Milwaukee, of counsel, for appellant.
Joseph P. Meyeroff, Nathaniel D. Rothstein, Milwaukee, for respondent.
Three issues are raised: (1) Whether the owner and operator of the tavern failed to provide and maintain a spark arrester as required by the Milwaukee city ordinance; (2) should the defendant Gilbert E. Grosenick, the tavern operator, have known that to burn refuse and paper in the incinerator under the conditions then existing would create an unreasonable risk of fire to nearby dwellings; and (3) after starting the fire in the incinerator, did the tavern operator make an adequate and efficient inspection of the chimney for spark emission?
It is not seriously disputed, and the trial court found, that sparks which emanated from the defendant's incinerator chimney set fire to the plaintiffs' dwelling, causing damage in the stipulated amount of $6,740.31. Defendant's tavern, located on West Center street in the city of Milwaukee just east of 18th street, had an incinerator in the basement attached to a chimney, which was capped by a spark arrester. The top of the chimney was about 25 feet from the ground. Plaintiffs were owners of a 2 1/2-story dwelling on 18th street and to the north of the tavern. The distance from the chimney to the plaintiffs' dwelling was about 40 feet, there being another dwelling in between. The neighborhood is an old section of Milwaukee containing frame houses with wooden roofs, as plaintiffs', and some commercial buildings, like the defendant's.
On Sunday morning, September 6, 1959, between 10:30 and 11:00 o'clock, the defendant's porter started to burn a garbage can and one-half of the Saturday night's refuse and debris in the incinerator. At that time, the wind from the southwest was 15 to 16 miles an hour, blowing from the chimney towards the east end of plaintiffs' dwelling. The temperature was about 80 degrees.
About a year before the fire, upon order of the fire department the defendant had replaced the spark arrester on his chimney and it had been inspected from the ground by a member of the fire department and approved. There was testimony some of the neighbors had on days previous to the fire noticed soot and cinders emanating from the chimney and had called the tavern. On the morning of the fire, one neighbor, whose wash was setting dirty from flying soot and ashes, called the tavern and later when she discovered the plaintiffs' house burning, notified the fire department. The defendant and his employees denied ever receiving any complaints. The fire department had no record of having received any complaints. There was testimony the mesh of the spark arrester was one-half inch in size and it was the rule or practice of the fire department to approve such size mesh unless complaints were received and if complaints were made a smaller mesh would be required. There was no credible evidence that the incinerator was not properly maintained.
Plaintiffs strenuously contend that the defendants were negligent as a matter of law because the spark arrester did not comply with sec. 47-6 of the Milwaukee ordinance which they claim was a safety ordinance having the same force and effect as a safety statute. This ordinance provides:
'The owner of any chimney or smokestack used in connection with heating or power boilers or furnaces, or for burning of waste or refuse, from which there is emitted sparks or burning embers shall provide on such chimney or stack an approved arrester, screen or other device that will prevent such emission.'
The construction of this ordinance is required in the determination of the first issue. Plaintiffs contend two conditions must be met: (1) The arrester must be approved, and (2) that it will prevent all emission of sparks or burning embers.
The defendants take the position: (1) That the arrester was approved by the fire department whose duty it was to enforce the statute, and (2) that the statute only requires an arrester which will impede, check or reduce the emission of sparks, and an arrester which would totally prevent sparks from escaping would affect the proper functioning of the incinerator.
It has been stated in several cases that a spark arrester has not yet been manufactured that will totally eliminate sparks and burning embers. A spark arrester which would totally eliminate sparks would affect the efficiency of the incinerator, and the size of the mesh must bear a relationship to the size of the furnace, height of the chimney and other factors. Menominee River Sash & Door Co. v. Milwaukee & Northern R. Co., 1895, 91 Wis. 447, 65 N.W. 176; Atkinson v. Goodrich Transportation Co., 1884, 60 Wis. 141, 18 N.W. 764; Oregon Box & Mfg. Co. v. Jones Lumber Co., 1926, 117 Or. 411, 244 P. 313; Mt. Emily Timber Co. v. Oregon-Washington R. & Nav. Co., 1916, 82 Or. 185, 161 P. 398; City of St. Louis v. Hertzeberg Packing & Provision Co., 1897, 141 Mo. 375, 42 S.W. 954, 39 L.R.A. 551. While these cases are old and spark arresters, no doubt, have since been improved, the testimony in this case is to the effect a spark arrester, as its name implies, will arrest sparks but will not wholly prevent them. We cannot hold, in view of the evidence and of the nature and purpose of spark arresters, the ordinance was intended to require the impossible. Such a requirement would be unreasonable and render the ordinance void. The ordinance must be given a practical and reasonable construction.
True, the word 'prevent' is sometimes used to mean totally stop or totally eliminate, but in the context of this ordinance it must be construed to mean 'to hinder, to check, or to retard.' Because of the use of the word 'approved' in the ordinance, we cannot find an intent expressed that an owner of a building must at his peril determine the type and size of the screening. The approval of the type and efficiency of an arrester for each particular chimney was left to the fire department which is better qualified to apply the standard to a particular chimney than a lay person. It may be true in this case, as argued by the plaintiffs, that a spark arrester having a smaller screening should have been required by the fire department, but it is not a breach of the ordinance for the defendants to have relied on the fire department's approval. The trial court, therefore, was correct in granting a nonsuit against the plaintiffs on this issue. The plaintiffs' proof at that time consisted only of the fact sparks were emitted from the chimney and set fire to the plaintiffs' house. This proof might have been sufficient if the plaintiffs were correct in their interpretation of the ordinance because a breach of a safety ordinance would be negligence per se.
The burden of proof was on the plaintiffs to prove noncompliance with the ordinance. The case of Bonnell v. Chicago, St. Paul, Milw. & Ohio R. Co., 1914, 158 Wis. 153, 147 N.W. 1046, relied on by the plaintiffs, involving spark arresters on locomotives and placing the burden of proof of compliance upon the owner or operator thereof, is not applicable and has not been extended to dwellings and commercial establishments. The construction of arresters on locomotives is peculiarly within the knowledge of the railroad company and the average person cannot obtain information concerning their construction. The reason for the rule, as applied to movable locomotives with their force-draft system and chimneys relatively close to the ground, does not apply to arresters on stationary chimneys, which in most cases are higher and farther away from inflammable or burnable objects and whose nature is commonly known. See Spaulding v. Chicago & Northwestern Railway Company, 1872, 30 Wis. 110 and 33 Wis. 582.
On the second issue, the trial court in its opinion stated ...
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