Coleman v. Hall

• Decision Date: 17 September 1968
• Docket Number: No. 52984,52984
• Parties: John Leo COLEMAN, Appellant, v. Howard M. HALL, Edna V. Hall and Central National Bank & Trust Company, Executors of the Estate of Howard M. Hall, Deceased, Appellees. Treasa COLEMAN, Appellant, v. Howard M. HALL, Edna V. Hall and Central National Bank & Trust Company, Executors of the Estate of Howard M. Hall, Deceased, Appellees. Gene L. NEEDLES, Administrator of the Estate of Thomas Joseph Coleman, Deceased, Appellant, v. Howard M. HALL, Edna V. Hall and Central National Bank & Trust Company, Executors of the Estate of Howard M. Hall, Deceased, Appellees.
• Court: Iowa Supreme Court

Page 329

161 N.W.2d 329

John Leo COLEMAN, Appellant, v. Howard M. HALL, Edna V. Hall and Central National Bank & Trust Company, Executors of the Estate of Howard M. Hall, Deceased, Appellees.

Treasa COLEMAN, Appellant, v. Howard M. HALL, Edna V. Hall and Central National Bank & Trust Company, Executors of the Estate of Howard M. Hall, Deceased, Appellees.

Gene L. NEEDLES, Administrator of the Estate of Thomas Joseph Coleman, Deceased, Appellant, v. Howard M. HALL, Edna V. Hall and Central National Bank & Trust Company, Executors of the Estate of Howard M. Hall, Deceased, Appellees.

No. 52984.

Supreme Court of Iowa.

Sept. 17, 1968.

Theodore T. Duffield, Des Moines, for appellants.

John Paul Jones, Des Moines, for appellees.

STUART, Justice.

Plaintiffs sought damages for injuries to John Coleman and Treasa Coleman and for the wrongful death of Thomas Coleman which occurred in an apartment house fire. Their separate actions against Howard Hall, owner, and Giles and Helena Hulse, tenants, were consolidated for trial. It is alleged the fire was started by Giles Hulse's cigarette. The claims against Hall were based on allegedly defective conditions in the apartment building. The trial court directed a verdict in favor of Hall. As the appeal involves only the cause of action against Hall, he will be referred to as defendant. Plaintiffs claim the court erred: (1) in sustaining specified paragraphs of defendant's motion in limine; (2) in sustaining defendant's motion to strike certain specifications of negligence; (3) in sustaining defendant's motion for a directed verdict.

I. The trial court's ruling on defendant's motion in limine prevented plaintiffs from offering any evidence or making any reference to specifications of negligence based on sections 413.38, 413.39 and 413.40, Code of Iowa. These statutes were enacted after the apartment building was constructed and relate to safety requirements for stairways and halls 'hereafter erected'.

On this appeal plaintiffs state their position as follows: 'It is not the claim of plaintiffs that failure to comply with these statutes is negligence per se, because they were not by their provisions retroactive statutes. It is the claim of plaintiffs, however, that the jury has a right to know what is presently required by the law of the State of Iowa in this regard for the purpose of making an informed judgment as to what acceptable standards are.'

In support of their position plaintiffs cite two cases from the U.S. Court of Appeals, District of Columbia Circuit. In Edmonds, Inc. v. Vojka, 118 U.S.App.D.C. 109, 332 F.2d 309 (1964), evidence of a nonretroactive building code formulated long after the building in question was erected was admitted. The court said: 'We think the evidence was admissible as relevant to the degree of care required; but to avoid jury confusion the court should itself have made clear that nonconformance with the standards of the code was not evidence of code violation.' 332 F.2d at 311.

The same court reached the same conclusion in Curtis v. District of Columbia, 124 U.S.App.D.C. 241, 363 F.2d 973 (1966), from which Judge Prettyman dissented.

This apartment was constructed in 1918. It does not comply with sections 413.38, 413.39 and 413.40. The legislature specifically excluded existing buildings from their requirements. If we permitted the jury to consider present day statutory requirements as bearing upon an owner's common law standards of due care, we would in effect be requiring him to reconstruct and remodel his building to meet changing safety standards, which the legislature refused to do.

We concur in the reasoning of Judge Prettyman's dissent and the opinion of the New Jersey Court in Ellis v. Caprice, 96 N.J.Super. 539, 233 A.2d 654, 661--662, where the court said:

'Plaintiffs urge that even if this section of the statute was inapplicable, it was nevertheless admissible to show recognized standards of construction. We disagree. A statute which establishes a standard of conduct may be considered as evidence of negligence on behalf of one for whose benefit it was enacted if its breach was the efficient cause of the injury of which he complains. (Citations.) Since the statute was inapplicable to defendant's building, it was not admissible for this purpose. Further, in the circumstances of the case, any probative value it possessed would have been more than offset by the possibility of prejudice arising from its submission to the jury.' See also Kaylor v. Magill, 6 Cir., 181 F.2d 179, 181. The trial court was correct in sustaining defendant's motion in limine relating to evidence of sections 413.38, 413.39 and 413.40.

II. The trial court also refused to permit evidence of or reference to section 413.81 of the Iowa Housing Law which states in part: 'The owner of every multiple dwelling on which there are fire escapes shall keep them in good order and repair, and whenever rusty shall have them properly painted with two coats of paint.'

In sustaining the part of the motion in limine which relates to 413.81, the trial court stated: '* * * defendant's affidavit which supports said motion recites that the structure is not equipped with any fire escape, and no counter-affidavit has been filed by plaintiffs'. Plaintiffs contend this section was intended to apply not only to fire escapes in their most technical meaning but to that designated a stairway by the owner rather than a fire escape.

For several reasons we are unable to agree with plaintiffs' interpretation of section 413.81. The wording of the statute limits fire escape to something on the building made of iron. If it intended to include stairways as well as fire escapes, the legislature would have used 'egress' as in section 413.36 or 'exit' as defined in section 103.2 of the chapter on fire escapes and other means of escape from fire. The requirements for stairs and halls are found in sections 413.38, 413.39 and 413.40.

In any event, defendant's affidavit stated there were 'no separate fire escapes installed or a part of the structure, other than the front and back stairways'. This was unchallenged. If plaintiffs believed the back stairway to be a fire escape rather than a stairway, they should have resisted the motion on this factual issue. Failure to assert this argument in the form of a counter affidavit or offer evidence to this effect leaves plaintiffs with no ground to quarrel with the court's ruling. R.C.P. 80(b) and 116; Chandler v. Taylor, 234 Iowa 287, 295--296, 12 N.W.2d 590, 595.

III. Plaintiffs claim the trial court erred in sustaining defendant's motion to strike the specifications of negligence which allege failure to provide the apartment building with reasonably proper fire warning devices, reasonably proper fire control equipment, and self-closing doors for the apartments to prevent the escape of smoke and fire into the hallway. In their appeal, plaintiffs chose to argue only the last of the three aforementioned subparagraphs. We consider the other two waived.

It is contended the landlord owed a common law duty to the tenants to guard against fire hazards by providing self-closing doors on the apartments. Defendant concedes Iowa precedents have required a landlord to exercise reasonable care to maintain those portions of the premises over which he retains control in reasonably safe condition. Stupka v. Scheidel, 244 Iowa, 442, 448, 56 N.W.2d 874, 877; Primus v. Bellevue Apartments, 241 Iowa 1055, 1060, 44 N.W.2d 347, 350, 25 A.L.R.2d 565; and citations.

We do not believe this standard of care imposes a common law duty on a landlord to maintain self-closing doors in apartment houses. No cases have been cited so holding.

IV. The trial court eliminated all specifications of negligence before trial except: 'A. In failing to provide the apartment building with reasonably proper escape routes and apparatus.' and 'M. In failing to keep a light burning in the hallway as required by section 413.60, Code of Iowa.' Plaintiffs do not claim there was evidence to support 'M'. Therefore, if the trial court erred in directing a verdict it is because there was substantial evidence to support 'A'.

On appeal plaintiffs rely on sections 103.1 and 103.3, Code of Iowa, claiming they create a duty on defendant to equip the building with a means of escape from fire by a fire escape or second stairway and that the back stairway was so defective he failed to properly discharge this statutory duty.

Defendant claims the petition contained no specifications of negligence predicated upon a failure to comply with the provisions of said sections. It is true there was no reference in the petition to sections 103.1 and 103.3, however, we believe specification 'A' was broad enough to cover such claim. We take judicial notice of applicable Iowa statutes and the petition need not refer to the code section by number. R.C.P. 94; State ex rel. LeBuhn v. White, 257 Iowa 606, 608, 133 N.W.2d 903, 904. As the petition was not directly attacked, it will be liberally construed in order to effectuate justice and the pleader will be accorded the advantage of every reasonable intendment. Reed v. Harvey, 253 Iowa 10, 13, 110 N.W.2d 442, 443--444.

Section 103.1 provides: 'Every church, school, hotel, theater, amphitheater, asylum, hospital, nursing home, college or university building, lodge hall, club room, public meeting place, and all other structures in which persons congregate from time to time, whether publicly or privately owned, shall have at least two means of exit from each story. All such buildings shall be equipped with such protection from fire, and means of escape therefrom, as in this chapter provided.

'After the thirty-first day of December, 1957, every such new or remodeled building, except private one- or two-family dwellings and farm buildings, shall have at least two means of exit from each story and shall be equipped with such protection from fire, and means of escape...