Johnson v. Snow
| Decision Date | 03 November 1903 |
| Citation | 76 S.W. 675,102 Mo.App. 233 |
| Parties | JOHNSON, Appellant, v. SNOW et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor Judge.
Defendants are the owners in fee of lot 38 and part of lot 37, city block 986, city of St. Louis, upon which they, prior to July 25, 1899, erected two dwelling houses known as Nos. 2700 and 2702 Olive street. On July 25, 1899, they leased the buildings to William Gillham and Catherine Gillham for a term of ten years to begin September 1, 1899. The buildings were leased as one building to be used and occupied as a hotel and the lease provided that the buildings were not to be used or occupied for any other purpose without the written assent of the lessors, their heirs or assigns. It further provided that "all repairs deemed necessary by the lessees to be made at the expense of said lessees, with the consent of said lessors and not otherwise." The said lessors, their heirs or assigns were, at all reasonable times and hours, to have the right to enter upon and inspect the state and condition of said premises. The lessees took possession of the premises under the lease on September 1, 1899, and from said date up to and including the ninth of February, 1902 engaged in the business of and were conducting a hotel or lodging-house in said premises as tenants under the lease.
On the ninth of February, 1902, Walter Johnson, plaintiff, was a lodger in the house and occupied an outside room on the third floor. About two o'clock on the morning of February 9 1902, a fire broke out in the premises and Johnson made an effort to make his escape by the only pair of stairs in the premises leading from the third story to the ground floor but was cut off from the stairway by the fire. The premises were unprovided with any outside fire escapes and to save himself from the flames, Johnson was compelled to jump to the pavement, a distance of about thirty feet. As a result of the jump he suffered fractures of the bones of his legs and was otherwise injured. To recover for these injuries this suit was brought.
The petition counts on the failure and negligence of the defendants as owners in fee of the premises to provide exterior fire escapes as required by an act of the Legislature approved March 27, 1901 (Laws 1901, p. 219.) Defendants denied that the obligation to provide an exterior fire escape was on them, and at the close of plaintiff's evidence moved for an instruction that plaintiff could not recover. The court denied the instruction and sent the case to the jury who returned a verdict for plaintiff and assessed his damages at $ 3,500. A motion for a new trial was filed by defendants which the court sustained on the ground that it committed error in refusing to grant defendant's instruction that plaintiff could not recover. From the order sustaining the motion for new trial plaintiff appealed.
Judgment affirmed.
Ernest E. Wood for appellant.
(1) The terms of statute make the fire escape a part of the building itself. It is therefore the duty of the owner to erect it where necessary. Under similar statutes the courts have held that it was the duty of the owner or owners to erect the fire escapes--even where the building was leased in its entirety for a term of years. Landgraf v. Kuh, 188 Ill. 490; Abraham v. Bank, 16 N. Y. St. 750; McLaughlin v. Armfield, 58 Hun 376; Weily v. Mulledy, 78 N.Y. 310; Pauly v. Steam Gauge and Lantern Company, 131 N.Y. 90; Gorman v. McArdle, 67 Hun 484; Huda v. American Glucose Company, 154 N.Y. 474; Schwander v. Birge, 46 Hun 68; Sewell v. Moore, 166 Pa. St. 570; McAlpin v. Powell, 70 N.Y. 126; In re Fire Escapes, 2 Pa. Dist., 298; Rose v. King, 49 Ohio St. 213; Jetter v. N. Y. H. R. Co., 2 Abb. 458. (2) Under the general law of landlord and tenant, the exterior fire escape is such an improvement as the landlord is called upon to make. 11 Wood on Landlord and Tenant (2 Ed.), sec. 381, p. 841; 11 Shearman & Redfield on Negligence (5 Ed.), sec. 702a; 1 McAdam on Landlord and Tenant (3 Ed.), p. 440; Landgraf v. Kuh, 189 Ill. 490; Abraham v. Bank, 16 N. Y. St. 750; McLaughlin v. Armfield, 58 Hun 376.
Collins & Chappell for respondent.
(1) There is no duty under the common law upon any one to equip a building with fire escapes. Pauley v. Steam Gauge & Lantern Co., 131 N.Y. 90; Jones v. Granite Mills, 126 Mass. 84; Keith v. Granite Mills, 126 Mass. 90; Schmalzreid v. White, 97 Tenn. 36; 13 Am. and Eng. Ency. of Law (2 Ed.), p. 82, and note 1. (2) Section 9037 of the Revised Statutes of 1899 has no application to this case. (3) Under the statute of Missouri, the duty of providing outside fire escapes is imposed only upon the person who has the control, possession and occupancy of the building. Laws 1901, p. 219. (a) Statutes are not to be construed with reference to the common law. Endlich on Interpretation of Statutes, sec. 127. (b) A penal statute is to be construed strictly. Huies v. Railroad, 95 N.C. 434. (4) The same rule of strict construction applies to statutes creating rights or fixing liabilities where none would otherwise exist, and to all statutes in derogation of the common law. Wilbur v. Crane, 13 Pick. 284; Rogers v. Currier, 13 Gray 139; West v. Railroad, 63 Ill. 545; Townsend v. Wilbur, 88 Ill. 197; Williams v. Vanderbilt, 145 Ill. 238; Dean v. Railroad, 119 N.Y. 540; Sutherland on Construction of Statutes, 374. (5) The liability is several and not joint, and is imposed upon only one of the classes enumerated in the act. Schott v. Harvey, 105 Pa. St. 122. (6) At common law the duty to keep premises in a safe condition is upon the person in occupancy and control. Murray v. Richard, 52 Hun 613; Keating v. Stevenson, 21 N. Y. App.; 47 N.Y. 837; Railroad v. Walker, 45 Ohio St. 577; Kent v. Rogers, 44 Conn. 291; Proctor v. Railroad, 64 Mo. 112; Lee v. Smith, 42 Ohio St. 459; Burns v. Fuchs, 28 Mo.App. 279; Gibson v. Perry, 29 Mo. 247; O'Neil v. Flanagan, 64 Mo.App. 87. (7) The act can not and is not intended to apply to one who can not comply with its requirements. Maker v. Slater Mill & Powder Co., 1 N.E. 176. (8) Section 4 of the act itself indicates that it was the person in possession or control of buildings erected prior to the passage of the act upon whom the duty of erecting fire escapes was imposed. Wiley v. Mulleby, 78 N.Y. 310; Pauley v. Steam Gauge and Lantern Co., 131 N.Y. 90; Gorman v. McArdle, 67 Hun 484; Huda v. American Glucose Co., 154 N.Y. 474; McLaughlin v. Armfield, 58 Hun 376; Grant v. Slater Mill & Powder Co., 14 R. I. 380; McCulloch v. Ayer, 96 F. 178; Landgraf v. Kuh, 188 Ill. 484.
BLAND, P. J. (after stating the facts as above).
The appeal presents but one question for discussion and solution, viz., whether or not defendants, under the evidence, were obliged by the Act of 1901 to attach an exterior fire escape to the building. The act is as follows:
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