Lunt v. Post Printing & Publishing Co.

• Citation: 110 P. 203, 48 Colo. 316
• Case Date: July 05, 1910
• Court: Supreme Court of Colorado

110 P. 203

48 Colo. 316

LUNT
v.
POST PRINTING & PUBLISHING CO.

Supreme Court of Colorado

July 5, 1910

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 489 P.2d 308

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 829 P.2d 405

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 847 P.2d 1141

Rehearing Denied July 5, 1910.

Error to District Court, City and County of Denver; Peter L. Palmer, Judge.

Action by Mary Lunt against the Post Printing & Publishing Company, a corporation. Judgment for defendant, and plaintiff brings error. Affirmed.

[48 Colo. 317] Richardson & Hawkins and Stephen W. Ryan, for plaintiff in error.

Waldron & Thompson and John T. Bottom, for defendant in error.

MUSSER, J.

In this action there was a demurrer to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendant. The demurrer was sustained. The plaintiff elected to stand upon the complaint, whereupon the complaint was dismissed, and judgment was rendered in favor of the defendant for costs. From this judgment the plaintiff brought the action here on error, assigning as error the action of the court in sustaining the demurrer to the complaint, dismissing the same, and rendering the judgment in favor of the defendant.

The complaint first alleges the corporate capacity of the defendant; that Frank P. Lunt was the husband of the plaintiff and a member of the fire department of the city and county of Denver and acting in that capacity on the 20th day of September, 1904; that the defendant was occupying a portion of the building, particularly a room in the second story thereof, known as an etching room, near the corner of Sixteenth and Curtis streets in the city of Denver. The complaint then proceeds as follows:

[48 Colo. 318] 'Fourth. That at or about 3:30 o'clock in the afternoon of said day, the defendant company caused an alarm of fire to be turned in from the fire box at the corner of Sixteenth and Curtis streets, and thereby invited the fire department of the city and county of Denver, and its members, including the said Frank P. Lunt, to come to, upon, and in the premises so occupied by the said defendant as aforesaid, as an etching room, for the supposed purpose of putting out the fire therein.

'Fifth. That in pursuance to said invitation and in obedience to and in conformity with his duties as a member of the fire department of said city and county of Denver, said Frank P. Lunt did forthwith proceed to said etching room, at the place aforesaid, so occupied as aforesaid, from which said room large volumes of supposed smoke were issuing.

'Sixth. That there was no fire upon or in said premises, but the said supposed smoke was caused by the liberation of a large amount of nitric acid, then and there kept in the said etching room by the defendant company.

'Seventh. That the said Frank P. Lunt, supposing and believing that a fire existed in the said etching room, did enter the same in his capacity as a member of the fire department, and did seek for and attempt to [110 P. 204] put out the supposed fire therein contained without any knowledge on his part of any dangers of any kind or character, other than those which were usually incident to his calling as a fireman in places where fire would be actually raging.

'Eighth. That while he was so engaged as aforesaid, he did breathe the said supposed smoke so described as aforesaid, as it was necessary for him to do, in order to remain in the said room and assist in putting out the supposed fire therein contained.

[48 Colo. 319] 'Ninth. That by reason of the said breathing, his eyes, mouth, throat, lungs, and stomach were filled with the said supposed smoke, repeatedly.

'Tenth. That the said supposed smoke was not in reality smoke at all, but consisted of fumes and vapors from the said nitric acid so liberated as aforesaid, in the said etching room, all of which fumes and vapors were a deadly poison inimical to human health and life and disastrous in the highest degree to the mucous membranes and lung tissues of the human body; of all of which the said Frank P. Lunt was wholly and absolutely ignorant at the time mentioned.'

The complaint then proceeds and alleges that, within an hour after the said Lunt entered the said room, he was seized with a deadly nausea and paroxysms of vomiting, and within 24 hours he became afflicted with a violent case of traumatic pneumonia, and continued ill until the 12th day of October, when he died, and that his death was caused by the injuries which he had received from breathing the fumes. The complaint then further proceeds as follows:

'Fourteenth That the said injuries were brought about solely by reason of the negligence of the defendant company, and without fault or negligence upon the part of the said Frank P Lunt, and the said negligence consisted in each and every of the following particulars, to wit: (a) The defendant company negligently invited the said Frank P. Lunt onto its premises, by sending in, or causing to be sent in, a general alarm of fire, when in truth and in fact there was no fire in or upon the said premises. (b) The defendant company kept and maintained a large carboy of nitric acid containing several gallons, in the said room, well knowing that the [48 Colo. 320] same was exceedingly dangerous, and further knowing that if anything should cause the carboy to become cracked, which contained said nitric aid, that the said nitric acid would then escape, no matter how slight the crack might be in the first instance. (c) In negligently and improperly so opening or attempting to open the said carboy of nitric acid, that the same would be liable at any time to become, and the same did become cracked, and the acid therein contained thereby became liberated, to the danger of those who might be called upon to enter the said room. (d) In failing to give the said Frank P. Lunt any warning of any kind or character of the deadly nature of the said nitric acid when liberated. (e) In failing to warn the said Frank P. Lunt, or cause him to be warned, that the fumes and vapors of the said nitric acid, if breathed into the human body, would destroy the mucous membranes and tissues and result in the sickness and probably the death of any one who breathed any considerable quantity of such fumes and vapors, with full knowledge upon the part of the said company, either actual or implied, of the deadly nature of such fumes and vapors.'

The complaint then concludes with the allegation that the plaintiff is the widow of said Frank P. Lunt, and that by reason of the said negligence of the defendant plaintiff was damaged in the sum of $5,000, and prays judgment for that amount.

It appears from the complaint, nothing being alleged to the contrary, and the statutes of the state requiring that the name of a corporation shall indicate its business, that the defendant was engaged in the printing and publishing business. It is alleged that the room in which the deceased was injured was known as an etching room and occupied by the defendant. It is [48 Colo. 321] nowhere alleged in the complaint, directly or by implication, that the nitric acid was unlawfully, wrongfully, or unnecessarily in that room. It is alleged that there were several gallons of the acid in the carboy. The word 'several' means 'more than two, but not very many.' Webster's International Dictionary. From this it appears that there were at least three gallons, and, in any event, not very many. It is not alleged that there was an unreasonable quantity of the acid, and, without such an allegation, that fact cannot be presumed. Unless conditions that are not alleged in the complaint to have existed be presumed, the acid, for aught that appears in the complaint, was lawfully and rightfully present in the carboy in a reasonable quantity and in proper form for legitimate use by the defendant in the etching department of its business of printing and publishing, and that it was not inherently dangerous to the public, nor to occupants of adjacent premises. These observations at once remove the question of actionable nuisance from the field of discussion, and the action appears, as is directly alleged, to be an action based solely on negligence.

It is apparent from the complaint that an endeavor is therein made to state a cause of action that would be within the rule announced in many authorities, and which is well stated in Bennett v. Railroad Co., 102 U.S. 577-580 (26 L.Ed. 235), as follows: 'The owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons--they using due care--for injuries occasioned by the unsafe condition of the [110 P. 205] land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, [48 Colo. 322] or others who were likely to act upon such invitation.'

While various other rules of law are referred to in plaintiff's brief and attempts made to apply them to this complaint, it is apparent from the complaint that the position of plaintiff may be stated briefly to be: That the defendant, by turning in an alarm of fire, thereby extended an invitation to the deceased, and by such invitation induced, or led, or lured the deceased to come upon the premises, to wit, the etching room, for a lawful purpose, to wit, to put out the supposed fire, and that the defendant is liable in damages for the injury inflicted by the unsafe condition of the premises, to wit, the presence thereon of the poisonous fumes, which condition was known, or ought to have been known, to the defendant and was not...