Carrigan v. Stillwell

• Decision Date: 01 January 1903
• Parties: CARRIGAN v. STILLWELL.
• Court: Maine Supreme Court

54 A. 389

97 Me. 247

CARRIGAN

v. STILLWELL.

Supreme Judicial Court of Maine.

Jan. 1, 1903.

(Official.)

Exceptions from Supreme Judicial Court, Penobscot County.

Action by William Carrigan against Cleveland S. Stillwell to recover for the death of plaintiff's intestate, who was burned to death in the defendant's building on October 16, 1901. It was claimed that the defendant was liable because he had not provided any fire escape on the building. The defendant filed a general demurrer to the declaration, which was sustained by the court below, and plaintiff excepts. Sustained.

At the hearing upon the demurrer at nisi prius the defendant contended that the plaintiff's declaration was defective for the following reasons:

First. That there was no allegation in the declaration that the death of the plaintiff's intestate was immediate.

Secondly. That it is a condition precedent to any liability of an owner of a building for failure to provide it with suitable fire escapes that said owner should first receive from the municipal officers or fire engineers written notice of their determination as to the sufficiency of said fire escapes, as provided in Rev. St. c. 26, § 28, and that no liability is incurred for failure to provide fire escapes until 60 days after the receipt of said notice, and that there was no allegation in the plaintiff's declaration of the performance of this condition.

Thirdly. That under the statute the duty to provide a building with fire escapes rests upon the tenant or occupant, and not upon the owner.

Argued before WISWELL, C. J., and WHITEHOUSE, POWERS, PEABODY, and SPEAR, JJ.

F. J. Martin, H. M. Cook, and M. McCarthy, for plaintiff.

C. H. Bartlett, for defendant.

WISWELL, C. J. This is an action under chapter 124, Pub. Laws 1891, to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the fault of the defendant. The defendant filed a general demurrer to the declaration, which was sustained pro forma by the court at nisi prius, and the case comes here upon the plaintiff's exception to this ruling. It will only be necessary to consider the objections to the declaration that are urged by counsel in support of his demurrer.

1. It is contended that the declaration contains no such sufficient allegation of the immediate death of the deceased as is necessary in actions under this statute, under the construction thereof by this court in Sawyer v. Perry, 88 Me. 42, 33 Atl. 660, and Conley v. Portland Gas Light Company, 96 Me. 281, 52 Atl. 656. The negligence complained of was the failure of the defendant to provide and maintain suitable fire escapes upon a building owned, controlled, and under the management of the defendant, by reason whereof, it is alleged, the deceased, being properly in the third story of the building at the time that the fire broke out therein, and without fault upon her part, lost her life. The allegation is that the deceased, by reason of such fault of the defendant, "was then and there burned to death and consumed by said fire, and then and thereby lost her life."

It is, of course, well settled that the statute under which this action was brought gives only a right of action to the personal representative of a deceased person whose immediate death was caused by the negligence or fault complained of, and it necessariiy follows that the declaration must contain a sufficient averment of such immediate death. But it is not necessary that any particular words should be used if it necessarily appears from the averment that the death of the deceased was immediate. Even in criminal pleading it is well settled that a statutory offense may be sufficiently set out without using the precise language of the statute, by the employment of language which is the full equivalent thereof. In this case we think that the necessary meaning of the allegation above quoted is that the immediate death of the deceased, within the meaning of the statute, was caused in the manner described. Not that the deceased received injuries from which she subsequently, however shortly thereafter, died, but that she then and there lost her life by being "burned to death and consumed."

2. The action is against the defendant, as owner of the building described. The declaration contains sufficient averments as to the defendant's ownership; that the building was one in which a business was carried on "requiring the presence of workmen above the first story"; that it was the duty of the defendant to provide and maintain suitable fire escapes for such building; that the defendant failed to perform this duty; and that by reason thereof the deceased, without fault upon her part, lost her life. The contention of the defendant is that this building was at the time of the fire in which the deceased lost her life in the possession of a tenant; that it was the duty of the tenant, if of anybody, to provide fire escapes; and that, therefore, this action cannot be maintained against the owner. Strictly, the question does not arise upon demurrer, because it does not appear from the declaration that the building was in the possession of a tenant at the time of the fire. But, as the question will necessarily arise later, if such was the case, and as both sides have fully argued it, we deem it proper and advisable to decide the question now, in view of our conclusion.

The duty of maintaining fire escapes upon certain buildings was created by statute. By Rev. St. c. 26, § 26, as amended by chapter 89, Pub. Laws 1891, "every building in which any trade, manufacture, or business is carried on, requiring the presence of workmen above the first story," as well as certain other classes of buildings, "shall at all times be provided with suitable and sufficient fire escapes, outside stairs, or ladders from each story or gallery above the level of the ground, easily accessible to all inmates in case of fire or of an alarm of fire." The next two sections of the chapter provide that in towns having no organized fire department the municipal officers, and in cities, towns, and villages having an organized fire department the board of fire engineers, shall annually make an inspection of the safeguards required by the preceding section, pass upon their sufficiency and state of repair, and direct such alterations, additions, and repairs as they adjudge necessary, and shall give written notice to the occupant of such building, "also to the owner thereof, if known," of their determination as to the sufficiency of the precautions and safeguards required, and as to the alterations, additions, and repairs that they adjudge necessary. By the next section a penalty is provided for any owner or occupant who neglects to comply with such order of these officers within the time allowed, and for any owner who lets or occupant who uses such building in violation of this order.

The question is whether, by these sections of the Revised Statutes, the...