Frontier Steam Laundry Company v. Connolly
| Decision Date | 07 December 1904 |
| Docket Number | 13,591 |
| Citation | 101 N.W. 995,72 Neb. 767 |
| Parties | FRONTIER STEAM LAUNDRY COMPANY v. JAMES P. CONNOLLY |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: GUY R. C. READ JUDGE. Reversed.
REVERSED.
B. N Robertson, for plaintiff in error.
W. H Herdman, contra.
LETTON, C. AMES and OLDHAM, CC., concur. SEDGWICK, J., dissenting.
This is an action to recover the value of certain articles of personal property which had been delivered to the plaintiff in error, the Frontier Steam Laundry Company of the city of Omaha, for the purpose of being laundered, and which were destroyed by fire which spread to the premises of the steam laundry company from an adjoining building. The delivery of the goods to plaintiff in error for the purposes claimed is admitted by the pleadings, but the plaintiff in error asserts that it exercised due care and caution in the possession and preservation of the property, and that without its fault or negligence a fire which originated on the adjoining premises spread to its premises and destroyed the goods. It denies that it is responsible for the fire, or that it has been guilty of negligence in any manner in the care of the property. A paper marked "Reply" found among the files does not appear to have been filed, but since at the time of the trial leave was given to file a reply, and since the court in its instructions treated the issues as if this paper had been filed, we will consider the case as if the issues had been made up by the filing of the reply. The reply alleges that the negligence charged consisted in this: that the premises were within the fire limits of the city of Omaha, that the buildings had windows within 40 feet of each other which were not covered by fireproof doors or shutters, as required by ordinance No. 4858 of the city of Omaha; that, by reason of the defendant's failure to cover said windows with fireproof shutters, the fire entered the defendant's premises and destroyed the plaintiff's property; that the fire entered only through the windows, and that, had the windows been covered with fireproof shutters, the fire would not have entered, and the goods of the plaintiff would not have been destroyed.
It may be questioned, under the evidence in this case, whether or not the ordinance which was introduced in evidence and which provided that fireproof shutters should be placed on the windows of brick buildings was of any force or effect as against the plaintiff in error, since the building appears to have been constructed long prior to the passage and approval of the ordinance, and it being penal in its nature could not be retroactive in its effect. This question, however, has not been distinctly raised in the case, and will not be decided. Assuming then that the ordinance was effective as to the premises, it remains to be seen whether or not a violation of its provisions constituted such negligence on the part of the plaintiff in error as would make it liable to persons whose goods were in its custody as bailee, and were destroyed by fire communicated through the unprotected openings. The only remedy provided by the ordinance for a breach of its provisions is a penalty of not less than $ 10 nor more than $ 100. It may be said that generally the penalty provided for a breach of the condition of an ordinance is the only one recoverable, but there is a further principle which is applicable in such cases, and that is that evidence of the violation of an ordinance usually tends to show actionable negligence where the consequences have ensued from its violation which are contemplated by the ordinance. Omaha Street R. Co. v. Duvall, 40 Neb. 29, 58 N.W. 531. Wherever a statute or ordinance creates a duty or obligation though it does not in express terms give a remedy, the remedy which is properly applicable to that obligation follows as an incident, but whether a liability arising from the breach of a duty prescribed by a statute or ordinance accrues for the benefit of an individual specially injured thereby, or whether such liability is exclusively of a public character, must depend upon the nature of the duty enjoined and the benefits to be derived from its performance. Taylor v. Lake S. & M. S. R. Co., 45 Mich. 74, 7 N.W. 728; Hayes v. Michigan C. R. Co., 111 U.S. 228, 240, 28 L.Ed. 410, 4 S.Ct. 369; 2 Cooley, Torts (3d ed.), 658; Cook v. Johnston, 58 Mich. 437, 25 N.W. 388. If the duty imposed by the ordinance is clearly intended for the protection and for the benefit of individuals or of their property, the violation of the rule prescribed tends to show negligence for which a recovery may be had; but where the duty is plainly for the benefit of the public at large, then the individual acquires no new rights by virtue of its enactment, and a violation of the rule is of no evidential value upon the question of negligence. It is not always easy to draw the...
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