Collins v. Twellman

• Citation: 126 S.W.2d 231,344 Mo. 330
• Decision Date: 15 March 1939
• Docket Number: 35551
• Parties: Margaret Collins, Appellant, v. Ernest H. Twellman, Executor of the Estate of Christ Frieling
• Court: United States State Supreme Court of Missouri

126 S.W.2d 231

344 Mo. 330

Margaret Collins, Appellant, v. Ernest H. Twellman, Executor of the Estate of Christ Frieling

No. 35551

Supreme Court of Missouri

March 15, 1939

Appeal for Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.

Affirmed.

Eagleton Waechter, Elam & Clark for appellant.

(1) If the building in question came within the purview of Section 13757, Revised Statutes 1929, which requires all buildings three or more stories in height and used as hotels, boarding and lodging houses, or tenement houses, to be equipped by the owner with stationary iron or steel stair fire escapes on the exterior thereof, the conceded failure of the owner, Christ Frieling, to have such building so equipped cast liability upon him, under the evidence in this case, for the injuries sustained by plaintiff when burned in the fire which occurred in said building on September 17, 1931, and plaintiff made a submissible case for the jury. Yall v. Snow, 201 Mo 511, 100 S.W. 1; Coutant v. Snow, 201 Mo. 527, 100 S.W. 5; Johnson v. Snow, 201 Mo. 450, 100 S.W. 5; Magill v. Boatmen's Bank, 288 Mo. 489, 232 S.W. 448; Newell v. Boatmen's Bank, 279 Mo. 663, 216 S.W. 918; Ranus v. Boatmen's Bank, 279 Mo. 332, 214 S.W. 156; Burt v. Nichols, 264 Mo. 1, 173 S.W. 681. (2) What is now Section 13757, Revised Statutes 1929 (carried forward from Laws 1917, p. 492), was approved and effective at a later date than what are now Sections 13096 and 13097, Revised Statutes 1929 (carried forward from Laws 1917, pp. 302-303). Laws 1917, pp. 302-303, 307, 492, 591. What is now Section 13757, Revised Statutes 1929, contains and revises the entire subject matter of stair fire escapes upon buildings three stories or more in height and used for hotels, boarding and lodging houses, and tenement houses, and, being in conflict with, repugnant to, and inconsistent with the provisions of what are now Sections 13096 and 13097, Revised Statutes 1929, supersedes and repeals by necessary implication said Sections 13096 and 13097. Yall v. Gillham, 187 Mo. 393, 86 S.W. 125. A later general act may impliedly repeal an earlier special act relating to the same subject matter, the ultimate determination of the question of such implied repeal depending upon the question of the legislative intention. Schott v. Continental Auto Ins. Underwriters, 326 Mo. 92, 31 S.W.2d 7; State ex rel. Crutcher v. Koeln, 332 Mo. 1229, 61 S.W.2d 750; 59 C. J., p. 910, sec. 514.

Julius T. Muench and Norman Begeman for respondent.

The demurrer to the evidence was properly sustained and the motion to set aside the involuntary nonsuit was properly overruled because the statute under which plaintiff-appellant brought suit was not applicable to the respondent's testator or the building involved. Sections 13091 and 13097, Revised Statutes 1929, being special acts, and more recently enacted than Section 13757, Revised Statutes 1929, modify the latter, and prevail in relation to the building in question. State ex rel. Buchanan County v. Fulks, 296 Mo. 614, 247 S.W. 129; State ex rel. v. Clayton, 226 Mo. 292, 126 S.W. 506; State ex rel. v. Crawford, 303 Mo. 652, 262 S.W. 341; State ex rel. v. Gehner, 315 Mo. 1126, 280 S.W. 416; Tevis v. Foley, 325 Mo. 1050, 30 S.W.2d 68; De Hart v. School District, 214 Mo.App. 651, 263 S.W. 242; Lazonby v. Smithey, 151 Mo.App. 285, 131 S.W. 708; State ex inf. Barrett v. Imhoff, 291 Mo. 603, 238 S.W. 122; Yall v. Gillham, 187 Mo. 393, 86 S.W. 125; Gasconade County v. Gordon, 241 Mo. 569, 145 S.W. 1160; State v. Davis, 314 Mo. 373, 284 S.W. 464; 59 C. J., 1059.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant, Margaret Collins, instituted suit against respondent, seeking to recover $ 50,000 as damages for injuries sustained when a three story building, owned by respondent, burned. At the time of the fire appellant was a tenant in the building. At the close of plaintiff's case the trial court sustained a demurrer to the evidence and plaintiff took an involuntary nonsuit. Later she filed a motion to set the nonsuit aside. This motion was overruled and from the judgment entered plaintiff appealed.

Plaintiff charged that the building was being used as a boarding and lodging house; that she occupied a room on the third floor; that the building burned about one or two o'clock on the morning of September 17, 1931; that she was severely burned while attempting to leave the building by means of a stairway inside the building. The charge of negligence was that the building was not equipped with an iron or steel stair fire escape attached to the exterior of said building and with stairways located inside thereof, all as required by Section 13757, Revised Statutes 1929 (Mo. Stat. Ann., p. 6978). The respondent's contention at the trial was, and here on appeal is, that the building did not come within the meaning of Section 13757, supra, but that Section 13097, Revised Statutes 1929 (Mo. Stat. Ann., p. 4155), should govern. Respondent denied that the building was being operated as a boarding, lodging, or tenement house, but contended that it was being operated as a hotel within the meaning of the laws of Missouri. The evidence disclosed that seventeen rooms in the building were rented on a weekly basis. Section 13091, Revised Statutes 1929 (Mo. Stat. Ann., p. 4152), provides in part:

"That every building or other structure, kept, used, maintained, advertised or held out to the public to be a place where sleeping accommodations are furnished for pay to transient or permanent guests, in which ten or more rooms are furnished for the accommodation of such guests, whether with or without meals, shall for the purpose of this article be deemed a hotel. . . ."

Section 13097, supra, reads in part as follows:

"Certain hotels to provide rope to each room, etc. -- Every hotel which is not over three stories in height and which is not provided with such fire escapes as described in section 13096 shall provide in every bedroom or sleeping apartment on the second and third floors a manila rope at least five-eighths of an inch in diameter and of sufficient length to reach the ground, with knots or loops not more than fifteen inches apart, and of sufficient strength to sustain a weight and strain of at least five hundred pounds."

Section 13096, Revised Statutes 1929 (Mo. Stat. Ann., p. 4154), requires hotels of more than three stories to have outside iron stair fire escapes. Section 13757, supra, reads in part as follows:

"It shall be the duty of the owner, proprietor, lessee, trustee, or keeper of every hotel, boarding and lodging house, tenement house, schoolhouse, opera house, theater, music hall, factory, office building, except fireproof office buildings in which all structural parts are wholly of brick, stone, tile, concrete, reinforced concrete, iron, steel or incombustible material, and which are not used for lodging purposes in the State of Missouri, and every building therein where people congregate or which is used for a business place or for public or private assemblages, which has a height of three or more stories, to provide said structure with iron or steel stair fire escapes attached to the exterior of said building and by staircases located in the interior of said building. The fire escapes shall extend from the upper story to the ground, pavement or sidewalk with iron or steel ladder from the upper story to the roof."

Section 13757, supra, will be found under Article I of Chapter 113, head title, "Public Safety." Article I of that chapter deals specifically with fire escapes. Section 13097, supra, will be found under Article VII of Chapter 93, head title, "Food and Drugs." Article VII of that chapter deals with hotels.

A full history of this legislation up to the year 1901 will be found in the case of Yall v. Gillham, 187 Mo. 393, 86 S.W. 125. We need not repeat the history of these various acts prior to that decision. Suffice to say that in the Yall case this court held that the Legislature, by the act of 1901, page 219, which may be termed an ancestor of what is now Article I of Chapter 113, supra, prescribed what fire escapes were to be erected on hotels, inns, etc. Section 2 of that act repealed the so-called rope fire escape law. Plaintiff in the Yall case relied solely on the law requiring a rope ladder, and this court held that plaintiff could not recover damages because that law had been repealed. Subsequently the Legislature repealed Section 2 of the 1901 act. In the year 1909 the Legislature enacted substantially what is now Article VII of Chapter 93, 1929. Sections 13096 and 13097 of Chapter 93 and Section 13757 of Chapter 113 cannot be harmonized. The first two sections mentioned require outside iron stair fire escapes on hotels over three stories in height, while hotels three stories or less are permitted to have rope ladder fire escapes. Section 13757, supra, provides that all buildings of three stories or more, where the public are invited, such as hotels, inns, boarding houses, factories, office buildings, etc., shall have outside iron or steel stair fire escapes.

Since the sections cannot be harmonized we must determine the legislative intent as to what section shall govern. In arriving at a conclusion on this question we cannot overlook the action of the Legislature after the Yall case was decided. The fire involved in the Yall case occurred on February 9, 1902. The act of 1901 was in force. The case was decided by this court in March, 1905. This court held that Section 2 of the 1901 act repealed the law permitting rope ladder fire escapes by expressly prohibiting their use. The Legislature of 1903 repealed Section 2 of the 1901 act. [See Laws 1903, p. 251, sec. 2.] After the decision in the Yall case, holding that ...