Louisville Trust Co. v. Morgan

• Citation: 203 S.W. 555,180 Ky. 609
• Parties: LOUISVILLE TRUST CO. v. MORGAN. [a1]
• Decision Date: 21 May 1918
• Court: Court of Appeals of Kentucky

203 S.W. 555

180 Ky. 609

LOUISVILLE TRUST CO. v. MORGAN. ^[a1]

Court of Appeals of Kentucky.

May 21, 1918

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by J. H. Morgan, administrator of the estate of Charles C Morgan, deceased, against the Louisville Trust Company and another to recover for death of decedent. From a judgment for plaintiff, defendant Louisville Trust Company appeals. Affirmed.

Garnett & Van Winkle, Fred Forcht, and Edwards, Ogden & Peak, all of Louisville, for appellant.

Milby &amp Henderson, of Greensburg, and A. Scott Bullitt, Keith L Bullitt, and Bruce & Bullitt, all of Louisville, for appellee.

CARROLL J.

There is located in the city of Louisville on Seventh street a three-story building, known as the Seventh Avenue Hotel, and in December, 1915, during a fire originating in and which partially destroyed this hotel, Charles C. Morgan, William Buckner, and C. F. Buckner, who were guests at the hotel, lost their lives as a result of the fire, and this suit was brought by the administrator of Morgan against the Louisville Trust Company, as trustee, owner, and landlord, and C. P. McClary, as tenant and proprietor of the hotel, to recover damages for his death. It appears that the hotel property was owned by the estate of Emma McBurnie, of which estate the Louisville Trust Company was duly appointed, qualified, and acting trustee, and as trustee it leased the property to McClary, who was operating it at the time of the fire as a hotel.

Originally, the suit was brought against the Louisville Trust Company as trustee of the estate of Emma McBurnie, and in its individual capacity as a corporation, but upon motion to require the administrator to elect whether he would prosecute the suit against the trust company in its individual capacity or in its fiduciary capacity, the court ruled that it was not liable in its fiduciary capacity, and thereupon the action proceeded against it in its individual capacity. After the pleadings had been made up there was a trial before a jury and a verdict in favor of the administrator against the Louisville Trust Company for $6,000, and against McClary for $1,000, and from the judgment on this verdict the trust company, but not McClary, prosecutes this appeal. At this point it will be convenient to set out such a description of the hotel building as may be necessary to an understanding of the case:

The original building that composed a part of this hotel was made of brick, three stories high, and fronted on Seventh street, but afterwards a frame addition, extending along the south side of the brick building, was constructed, and the two buildings constituted the hotel at the time of the fire. The office was on the first floor of the brick building, and leading from the office to the second floor of the brick building there was a stairway going into a hall in the second floor of the brick building that extended from the front to the rear of the building. Morgan, and the Buckners, occupied, on the night of the fire, room No. 1 in the frame building, and between this room and the other rooms and the hall in the brick building there was a brick wall extending from Seventh street to the rear of the building. In this wall that separated completely room No. 1 and the other rooms in the frame building from the brick building and the main hallway therein, there were no doors or other openings except one near the front of the building that furnished a means of exit and entrance to and from the main hall of the brick building to the frame building, and in order to go from the office to room No. 1 it was necessary to go up the stairway to the main hall in the brick building, then down the hall towards Seventh street to the door in the brick wall that opened into the frame building, then across the frame building to a little hall, three feet wide, on the south side of the frame building, then down this hall a few feet to a door that opened into another hall, from which hall there was a door opening into room No. 1, and also a door opening into room No. 2; room No. 1 being back of room No. 2. Room No. 1 had in it two doors, one opening into the little hall above mentioned, and the other into room No. 2, and in the rear of room No. 1 there were two windows that looked out on the roof of the one-story dining room and kitchen.

It is difficult to describe, so that it can be understood, the location in the hotel of room No. 1, and the difficulty of getting from the office, or the main hall in the brick building, to or from it, but we have been furnished with plans of the second floor that enable us to confidently say that if the architect of this frame building had endeavored to plan a room that it would be almost impossible to escape from, in case of fire in the frame building, he could not well have succeeded in locating it, and the means of ingress and egress therefrom better than the plans show he did. If there ever was located in a building intended to be and that was used as a hotel a room that might be described as a fire trap, room No. 1 fills the description. Indeed, a stranger, as it appears Morgan and these Buckners were, would find it difficult in the middle of a quiet day to make his way from room No. 1 to the main hall and the office, to say nothing of the almost insurmountable difficulties that would present themselves if a stranger in the night, and in the midst of a fire, should attempt to find his way to a place of safety.

The fire was discovered about 4 o'clock in the morning by a policeman out on the street, who at once turned in the fire alarm, and within a few minutes thereafter the fire department reached the place, but before they got there the hotel clerk, the porter, and a man named Ash had gone through the building to awaken the guests, all of whom, it appears, made their escape except these three men, who were, apparently, the only occupants of the second floor of the frame building. Ash did not testify in the case, but Louis Thompson, the porter, was introduced as a witness, and said, in substance, that the fire originated in the one-story kitchen, and soon enveloped the entire rear end of the frame building, thereby prohibiting escape from room No. 1 through the windows that opened out on the kitchen roof. At the time the porter reached the little hall, into which the door of room No. 1 opened, this hall was full of suffocating smoke, and he did not go to the door of room No. 1 to alarm the inmates, because, as he said, this service had been performed by Ash, whom he heard calling out "Fire," and knocking on the door of room No. 1. When the fire department reached the building some of the firemen made their way into this little hall on the second floor through the fumes and smoke, and, breaking open the door of room No. 2, which was used as a storeroom, they found Morgan and the two Buckners, all of them either dead or in a dying condition on the floor of this room, to which it appears they had gotten from room No. 1 through the door in the partition between these two rooms. There was also some evidence to show that the fireman found the door of room No. 1 unlocked, and an intimation that the occupants may have attempted to make their escape through this door, but, being prevented by the smoke in the hall, they turned to the door leading into room No. 2, hoping that they might make their escape in that way; but there were no doors or openings in that room, except the door leading into room No.

1, and the door leading into the little hall, and so they were compelled to remain in room No. 2, where they were suffocated by the smoke.

Turning now to other matters, it appears that in 1914 the Legislature enacted a law regulating hotels and restaurants, and in this act, which is now section 2095a, subd. 6, of the Kentucky Statutes. it was provided that:

"In all hotels and restaurants two stories high with ten or more sleeping rooms, where sleeping accommodations are furnished to the public, there shall be provided for each twenty-five hundred feet of area or fractional part thereof an efficient chemical fire extinguisher conveniently located in a public hallway outside of the sleeping rooms, and always in condition for use, or a one and one-fourth inch inside stand-pipe with hose connection and a hose of sufficient length always attached in such a hallway, which stand-pipe shall be supplied by a sufficient pressure of water."

It further provided that all hotels and restaurants more than two stories high should be equipped with an iron stairway or fire escape on the outside of the building, and that:

"The way of egress to such fire escapes shall at all times be kept free and clear of any and all obstructions of any and every nature." Subdivision 8.

It further appears that in 1909 the city of Louisville enacted an ordinance known as the Building Code, and in section 153 it was provided that every building three or more stories high, used as a hotel, should have at least one fire escape, and as many more as might be necessary for safety; the location of the fire escapes to be subject to the approval of the inspector of buildings; and in section 183 it was further provided that:

"The doors * * * and passageways * * * shall be arranged * * * to facilitate egress in cases of fire or accident and to afford requisite and proper accommodations for the public protection in such cases."

In accordance with these statutory and ordinance provisions and section 466 of the Kentucky Statutes, giving a cause of action for injuries resulting from the violations of a statute, the trial court instructed the jury that:

"It was the duty of the Louisville Trust Company, when it permitted the building known as the Seventh

...