Evers v. Davis

• Citation: 90 A. 677,86 N.J.L. 196
• Parties: EVERS v. DAVIS.
• Decision Date: 24 April 1914
• Court: New Jersey Supreme Court

90 A. 677

86 N.J.L. 196

EVERS

v. DAVIS.

Court of Errors and Appeals of New Jersey.

April 24, 1914.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Action by William H. Evers, administrator, against Annie T. Davis. Judgment for plaintiff, and defendant appeals. Reversed.

J. R. Bowen, of Jersey City, for appellant. Frank M. Hardenbrook, of Jersey City, for respondent.

GARRISON, J. Upon the trial of this cause, which was an action of negligence brought by an administrator to recover damages for a death that was attributable to the absence of fire escapes upon a tenement house owned by the defendant, the trial court conceived the idea that the proper action was not an action of negligence, but "an action based on a violation of the statute," the statute in question being the Tenement House Act of 1904 (P. L. 1904, c. 61). Under this conception of the plaintiff's statutory rights the trial court permitted an amendment of the complaint by which its allegations of negligence were stricken out, and in their place the nonperformance of a statutory duty was charged. The effect of this amendment and of the trial theory that induced it was the overruling of a line of testimony offered by the defendant and the denial of requests to charge, which rulings were admittedly erroneous if the action of negligence originally brought by the plaintiff was the proper remedy.

A little more in detail the facts of the case were as follows: On November 11, 1912, the defendant became the owner of "a three-story and basement tenement," which was unprovided with fire escapes. On December 28, 1912, the building took fire, and plaintiff's intestate died of injuries attributable to the absence of fire escapes. The Tenement House Act of 1904, by its thirty-sixth section, provides that every nonfireproof tenement house "more than three stories in height" shall be provided with fire escapes from each apartment. By the 189th section it is provided that every person who shall violate any provision of the act shall be subject to certain penalties, to be recovered by the State Board of Tenement House Supervision under a proceeding prescribed by the 193d section. No other remedy or right of action is given by the statute. In order to enforce this penalty it would be necessary for the state board to show that the defendant's three-story and basement tenement was a tenement more than three stories in height, and this it could only do by showing that the basement should be counted as a story. Upon this point the language of the statute is as follows:

"Sec. 9. A basement is a story partly, but not more than one-half below the level of the grade and for the purposes of this act shall be counted as a story, if more than five feet above the grade, unless otherwise specifically stated."

"10. A cellar is a story more than one-half below the level of the curb and for the purposes of this act shall not be counted as a story, unless otherwise specifically stated."

Inasmuch as there was a pitch of at least six inches from the level of the ground at the building line to the curb, the question whether or not the basement should be counted as a story depended upon the point of measurement indicated as "grade" in section 9. The trial court resolved this question against the defendant by charging that the "grade" mentioned in section 9 was the curb level, a ruling with the correctness of which we are not now concerned, excepting to point out its crucial character.

The meritorious defense that the defendant was prevented from making by the course pursued at the trial was that the tenement house property had been in the family for many years, and that it had never been equipped with fire escapes for the reason that under the construction placed upon the statute by the State Board of Tenement House Supervision, and according to the measurements made by its inspectors, the building did not come within the statute as requiring fire escapes.

The last of these inspections and measurements before the fire was made on May 26, 1910, and by an inspection made after the fire it was shown that no change had taken place in the grade, building, or curb between these two dates. The record of the inspection of May 26, 1910, was in court in the custody of the proper officer of the state board, but was not allowed to be put in evidence, nor was the witness permitted to testify as to the rules of the board under which such reports of inspectors were filed with its secretary. We need not stop to consider whether or not these exclusions were erroneous if the sole object of the testimony was to prove the actual height of the basement. Apart from this question the existence of such official record was obviously relevant and material upon other aspects of the case regarded as an action of negligence—notably to show the construction that had been placed upon the language of the statute by the official board that under the legislative scheme was charged with the duty of making such a construction, and that by such construction and the official measurements made thereunder the negligence of the owners of the building, including that of the defendant, was at least a question for the jury.

It would be profitless to consider the ruling out of this evidence in the light of an error made in the trial of an action of negligence, for the reason that the defendant's case was met by the abandonment of the issue joined in that form of action and the substitution therefor of another and different issue to which the rejected evidence was thought to have no application. While the defendant's first witness was on the stand the court addressed to counsel for the plaintiff this question:

"Let me ask you, Mr. Hardenbrook, whether you want to try this case upon the theory you have brought it on, or whether you are relying on the question of a mere breach of duty and consequent injury. Because in the one case this would be clearly relevant testimony, if it was on the case made by your complaint that they were negligent in not putting it there."

To which counsel replied:

"I do not wish to base the case on negligence, but on the statutory requirement and not rest the case on the ground of negligence."

When the defendant's second witness was on the stand, court interrupted counsel for the defendant, who had spoken of negligence, by saying:

"It [i. e., the action] is not based on negligence; it is based on a violation of the statute."

At the close of the testimony the court granted a motion to amend the complaint so that it should not charge any element of negligence nor be susceptible to any defense based upon that style of action.

The defendant's motion for a direction was met by the declaration that:

"With respect to the point that there is no negligence established the answer to that is this: That the action is not for negligence now."

Finally the court refused to charge the following request:

"If you find that the building was of such character as, under the law, required fire escapes, you must further find that the negligence of the defendant in failing to provide fire escapes was the cause of the death of the decedent, or the plaintiff cannot recover."

And in connection therewith made this statement for the record:

"My conception of an action of this kind is— I want to get it on the record—my conception is the conception that is voiced by the dictum of the Court of Errors and Appeals in Fielders v. North Jersey Street Railway Co., to the effect that, assuming the party injured in a given case to be one of a class for whose benefit a duty has been by statute or ordinance imposed upon the opposite party, and assuming that the evidence shows an actual breach of that duty, it would seem the sole remaining inquiries should be whether the violation of the imposed duty was the proximate cause of the injury, and, if so, whether any faulty conduct of the injured party was the contributing cause."

"That is my conception of the action, and that is the conception upon which the plaintiff in the case proceeds, upon which his complaint rests, and if I am wrong about that, why there is nothing for the court to do but to reverse me; that is all; and I want to have it squarely brought up, and I therefore write it right in the record in...