Klingensmith v. Siegal

• Decision Date: 01 April 1929
• Docket Number: Nos. 5581,5582.,s. 5581
• Citation: 57 N.D. 768,224 N.W. 680
• Parties: KLINGENSMITH v. SIEGAL et al. HEFFNER v. SAME.
• Court: North Dakota Supreme Court

57 N.D. 768

224 N.W. 680

KLINGENSMITH

v.SIEGAL et al.

HEFFNER

v.SAME.

Nos. 5581, 5582.

Supreme Court of North Dakota.

April 1, 1929.

Syllabus by the Court.

Where code commissioners, proceeding under authority vested in them by chapter 74 of the Laws of 1893, are shown to have revised the existing statutes on the subject of fire escapes, and to have submitted the revised draft as a part of a bill which was later enacted by the Legislature, such enactment is a ratification of their action, and, for practical purposes, it is unimportant whether the commissioners were authorized to revise the law in question by the addition of new provisions. In re Hendricks, 5 N. D. 114, 64 N. W. 110.

Where a subsequent statute revises the whole subject-matter of former enactments and is intended as a substitute therefor, the subsequent act repeals the former and is alone subject to construction, but the original statutes may be resorted to to aid in construction, if the language used in the revision gives rise to a substantial doubt as to the legislative intention.

Canons of construction are resorted to to aid in ascertaining the meaning of the Legislature, and not to confine a statute within narrower limits than is clearly intended. The doctrine of ejusdem generis is such a rule of construction, and need not be resorted to where the legislative intention is clear.

Section 2977, Compiled Laws of 1913, which provides that all hotels, factories, public halls, offices, and other buildings over two stories in height shall be equipped with fire escapes, is construed and held to require fire escapes upon buildings more than two stories in height, where they are subjected to a use that contemplates the presence of numbers of persons in the upper stories. An apartment or flat building is such a building.

A provision in a city charter, section 3818, par. 39, Compiled Laws of 1913, which confers upon the board of city commissioners power to legislate “for the construction of fire escapes,” is to be construed in connection with section 3799, Compiled Laws of 1913, and, so construed, it is held that the ordinances of the city must be consistent with the state law, and, if not as broad as the general law, the latter governs.

Appeal from District Court, Cass County; M. J. Englert, Judge.

Separate actions by Mildred Klingensmith and by Ethel Weiss Heffner, formerly Ethel Weiss, against Matt Siegal and another; the actions being tried together. Judgment for plaintiffs. From orders denying their motion for judgment non obstante, defendants appeal. Affirmed.Conmy, Young & Burnett, of Fargo, for appellants.

Richardson & Wattam, of Fargo (W. C. Green, of St. Paul, Minn., of counsel), for respondents.

BIRDZELL, J.

The plaintiffs brought separate actions against the defendants to recover damages for personal injuries sustained by them which were occasioned by a fire in an apartment or flat building belonging to the defendants. The two actions were tried together, and judgments favorable to the plaintiffs were entered upon separate verdicts. Thereafter the defendants moved for judgment non obstante. The motions were denied, and the defendants appeal from the orders.

On February 1, 1927, the plaintiffs in these actions, Mrs. Klingensmith and Miss Weiss (now Mrs. Heffner), occupied a small room on the third floor of an apartment building known as the Colonial Apartments at Seventh street and First Avenue South in the city of Fargo. The building was a three-story structure with a full basement, and contained 14 apartments, 2 in the basement and 4 on each floor above. The room occupied by the plaintiffs was a front hall room made by partitioning off the hall toward the front of the building. There was a front apartment on each side of the room occupied by the plaintiffs, and a fire escape was constructed outside the most remote of three windows in each of the apartments. No rope was provided as a fire escape in the room. The distance from the window in the plaintiffs' room to the fire escape was about 18 feet. There were also fire escapes at the rear of the building. The plaintiffs could have gained access to the fire escapes adjacent to their room only by going into the hall and from thence into a front apartment. Early in the morning of February 1, 1927, they were awakened by smoke. There was a paper or rubbish chute communicating with the lower part of the building, through which the smoke seemed to come in volume into the upper hall. They attempted to gain access to the front apartment occupied by the family with whom Miss Weiss was living and working, but were unsuccessful. They returned to their room, and, when it had become intolerable for them to remain there, they broke the glass out of the storm window, then stood on and hung to the window ledge, where they received severe burns. They were later rescued from the balcony beneath the window of their room.

The defendants seek a reversal of the judgments obtained, on the theory that, having complied with the city ordinance of the city of Fargo in the matter of providing fire escapes upon the building in question, they are not liable for the injuries sustained by the plaintiffs; whereas, the respondents contend that, while the defendants might have complied with the city ordinances, they have not complied with the state law, and hence are liable. The appellants advance two main propositions: First, that the building in question is not such a building as is required, under the state law (section 2977, Compiled Laws of 1913), to be equipped with fire escapes, thus raising a question of statutory construction; and, second, that, even though the building might be considered to be within the statute, the statute ceased to be applicable when the city had adopted an ordinance covering fire escapes, pursuant to a delegation of legislative authority contained in the charter for a commission system of government (section 3818, par. 39, Compiled Laws of 1913). We will consider these propositions in the order stated.

The first act brought to our attention is chapter 58 of the Laws of Dakota Territory for 1883 which in its title purports to be an act providing for fire escapes from hotels. Section 1 provides: “That the owners and proprietors of all hotels and other public buildings, in the Territory of Dakota, over two stories in height, are required to provide safe and suitable fire-escapes from all rooms above the second story of such hotel,” etc.

In 1887 another act was passed (chapter 54, Laws of Dakota Territory for 1887), purporting to regulate the “manner of ingress and egress of public buildings, fire escapes,” etc. Section 4, relative to fire escapes, provides: “All factories, public halls, hotels, and all other other buildings in which large numbers of people congregate, which are two or more stories in height, shall be provided by the owners thereof with two or more fire escapes, placed within easy access of the occupants of said building.” This act contained no repealing clause. In 1895 the code commission, authorized under chapter 74 of the Laws of 1893, incorporated in the Political Code as article 18, two sections dealing with fire escapes, which are not identical with either the act of 1883 or 1887. This was adopted by the Legislature in 1895. The marginal note in the Revised Codes of 1895 (section 1717) indicates that section 1 of chapter 58 of the Laws of 1883 is amended. The amendment, however, is only as to the description of buildings included within the requirement. The 1883 act was confined to hotels and other public buildings; whereas, the 1887 act was applicable to factories, public halls, hotels, and all other buildings in which large numbers of people congregate. But the 1895 act struck out the term “public buildings,” added a term which had not appeared in either of the other acts, namely, “offices,” and dropped the qualifying expressions applicable to other buildings, namely, “all” and “in which large numbers of people congregate.” It likewise dropped the expression used in the act of 1883, “and all other public buildings.” That portion of the act of 1895 (Rev. Codes 1895, § 1717), which is under construction, reads: “The owners and proprietors of all hotels, factories, public halls, offices and other buildings in this state, over two stories in height, are required to provide safe and suitable fire escapes from all rooms above the second story of such hotel or other building,” etc., continuing, as in the act of 1883: “And when rooms have no outside windows there shall be affixed to the windows in the hallway leading from such room at least three fire escapes in each window as herein directed. Such fire escape shall consist of at least one good cotton rope not less than one inch in diameter, to be securely and permanently fastened with iron rings or bolts at a point immediately outside or inside of at least one window in each room above the second story; and such rope shall be of sufficient length to reach to the ground; provided, that if the owner or proprietor of any such buildings shall provide good and sufficient iron ladders extending from each of the windows herein mentioned, and from points immediately adjacent to each of such windows, to the ground, and securely and permanently fastened to such building, or shall have the fire escape ladder in each of the rooms and hall windows aforesaid, of sufficient length to reach from such windows to the ground, he will be deemed to have complied with the requirements of this section.”

[1] It is said that, where a code is adopted, the prior law is not regarded as changed unless the intention of the Legislature is clear, and that a change will not be deemed contemplated where there is a mere...