Chimine v. Baker

• Decision Date: 27 May 1903
• Citation: 75 S.W. 330
• Parties: CHIMINE et al. v. BAKER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

75 S.W. 330

CHIMINE et al. v. BAKER et al.^*

Court of Civil Appeals of Texas.

May 27, 1903.

Appeal from District Court, Harris County; Wm. H. Wilson, Judge.

Bill by James A. Baker and others against Albert Chimine and others. From a judgment in favor of complainants, defendants appeal. Affirmed.

Jas. A. Breeding, for appellants. Baker, Botts, Baker & Lovett and Ford, Stone & Ford, for appellees.

FLY, J.

This suit was instituted by James A. Baker, R. S. Lovett, L. M. Rich, W. L. Foley, and A. L. Abrahams and his wife, Carrie B. Abrahams, against Albert Chimine, Alfred Chimine, and A. Pennington, to restrain them from the erection of a building being constructed of combustible material within the fire limits of the city of Houston, near houses owned by them. A trial was had by jury, which resulted in a verdict and judgment for appellees.

The evidence established that appellants had begun the construction of a storehouse, with combustible material and material not fireproof, beside and in close proximity to storehouses owned by the above-mentioned plaintiffs, except W. L. Foley. The houses mentioned are within the limits established by the city of Houston, wherein it is made unlawful, by an ordinance, to build or erect houses of combustible material or material that is not fireproof. The erection of the house by appellants would greatly depreciate the value of the property owned by appellees.

The second and third assignments of error complain of the action of the court in overruling numerous special exceptions, which are numbered and copied. No particular errors are indicated. It has been so often held that such assignments of error will not be considered, that it would seem that they would not be so prepared. Keowne v. Love, 65 Tex. 152; Railway v. Leak, 64 Tex. 654; Yoe v. Montgomery, 68 Tex. 338, 4 S. W. 622; Paschal v. Owen, 77 Tex. 583, 14 S. W. 203.

Through the first assignment of error, appellants complain of the overruling of a general demurrer, which goes to the very foundation of the suit, and presents for review the vital questions connected with actions of this character. It was alleged in the petition that, under the authority granted it by its charter, the city of Houston had passed ordinances in 1897 and 1899 prescribing fire limits, in which the erection or placing of any building of combustible material, or any material not fireproof, within certain limits, was prohibited, and penalties fixed for violations of the same; that appellants were constructing a building within said limits of wood and other materials not fireproof and incombustible, in immediate contact with the building and improvements of appellees. The petition proceeds: "Plaintiffs further show that the erection of said building, if the same is permitted to be erected, will be a nuisance, and will subject the valuable buildings and improvements of plaintiffs' property to imminent danger of destruction by fire, and will increase the fire risk on said buildings, and increase the cost of insurance on the same against loss by fire; that it will decrease the value of plaintiffs' property and render the same less salable; diminish the income therefrom, and render the use thereof unsafe and uncomfortable; will increase the cost of insurance on stocks of goods or other property placed therein, thereby and otherwise making the same less desirable and valuable as rent property; that the front end of the defendants' building, as is shown by the framework thereof, has no support except wooden posts, and plaintiffs are informed and believe that, in case of a fire in said building, it would be unsafe for firemen or others wishing to extinguish it to enter said building, on account of the liability of said posts to burn and give way and cause said building to fall, and on account of other defects in said building, rendering the same liable to fall in case of fire. Plaintiffs further say that the injuries to their property and to plaintiffs by the erection of said building would be permanent, continuous, and irreparable, and that they are entirely without adequate remedy at law." It was also alleged that they had applied to the mayor, city council, and chief of police of the city of Houston to enforce the ordinance, but they had refused to do so.

It is the contention of appellants that the ordinance is unreasonable, in prescribing that none but buildings made of "fireproof" or "incombustible" materials should be constructed within the fire limits, and, reason and experience teaching that no such material can be obtained that is suitable for the construction of buildings, it is practically a prohibition of the erection of houses within such limits. The terms "fireproof" and "combustible materials," used in the charter and ordinance, should not be given a literal construction, but a liberal and reasonable one, and the meaning assigned to them in the ordinary and common acceptation of the terms. Experience has shown that during great conflagrations, such as swept the cities of Chicago and Boston a number of years ago, buildings of granite, marble, and steel crumbled into dust before the intense heat, and met with absolute destruction. And yet those buildings were known and accepted as being composed of incombustible or fireproof materials. The term "fireproof," in insurance cases, where used in connection with safes in which books and inventories are to be kept, has been defined as being of materials that will usually resist the action of fires, and not those that will successfully withstand fires under all circumstances. Ins. Co. v. Hird (Tex. Civ. App.) 23 S. W. 393; Underwriters' Fire Ass'n v. Palmer (Tex. Civ. App.) 74 S. W. 603; Sneed v. Assurance Co. (Miss.) 18 South. 928. As said by the Supreme Court of Mississippi in the lastcited case: "To impart to the words `fireproof safe' such signification as would require a safe incapable of injury by fire, to itself or its contents, or one which by the action of any fires could not be rendered useless as a safe, and whose contents, under any combination of circumstances, should and could never be destroyed by the intensity of heat to which the safe and its contents might be exposed, would be to require of the insured, in the vast majority of insurance cases, that which could not have been in the contemplation of the parties in entering into the contract of insurance." The words "fireproof" and "incombustible materials" are often used in connection with houses that are not absolutely proof against fires, but are intended as referring to houses built of brick, stone, iron, or other material, on the outside, so as to form barriers that will resist the action of ordinary fires.

The ordinance of which complaint is made is authorized by the charter of the city of Houston, which empowers the city council to "prohibit the erection, building, placing, moving, or repairing of wooden buildings within such limits in said city as they may designate and prescribe; * * * and may direct, require and prescribe that all buildings within the limits so designated and prescribed shall be made or constructed of fireproof materials." The ordinance uses the words "combustible material or any material not fireproof." The words are practically the same used by the Legislature in the special charter of 1897 granted to the city of Houston. To inquire into the reasonableness of the ordinance would be to inquire into and attack the reasonableness of a law enacted by the Legislature of the state. The ordinance is not dependent for its vitality on some power incidental to some general power granted to the city, but it follows the language of the legislative grant for that specific purpose almost to the letter. After the power of courts to sit in judgment on the reasonableness of city ordinances resting for their authority on some general grant of power had been conceded, Judge Dillon says: "Where the Legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the Constitution, an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature." Dill. Mun. Corp. § 328. The text is supported by numerous authorities. In the case of A Coal Float v. City of Jeffersonville (Ind.) 13 N. E. 115, it is said: "While the reasonableness of an ordinance is a question of law for the decision of the court, an ordinance cannot be held to be unreasonable which is expressly authorized by the Legislature. The power of a court to declare an ordinance unreasonable, and therefore void, is practically restricted to cases in which the Legislature has enacted nothing on the subject-matter of...