Moran v. Poledor
| Decision Date | 17 March 1926 |
| Docket Number | 11,964 |
| Citation | 151 N.E. 140,84 Ind.App. 266 |
| Parties | MORAN v. POLEDOR ET AL |
| Court | Indiana Appellate Court |
From St. Joseph Superior Court; J. Fred Bingham, Judge.
Action by Samuel D. Moran against Eustis Poledor and others. From a judgment for the defendants on demurrer to the complaint, the plaintiff appeals.
Affirmed.
Hubbard Farabaugh & Pettengell and Walter R. Arnold, for appellant.
Shively Gilmer & Doran and Graham & Crane, for appellees.
Complaint by appellant against appellees for damages to his property sustained by reason of a fire caused by flying embers from a burning building owned by appellees and adjoining appellant's property. The complaint was in two paragraphs. The first paragraph alleged that appellant was a retail dealer in electrical appliances and house furnishings in the city of South Bend; that he as a tenant occupied the first floor and basement of a building adjacent to certain property owned by appellees; that his lease expired October 1, 1926, the unexpired term of which lease being alleged to be worth $ 30,000; that his stock of goods in said building was of a value of $ 45,000; that on August 6, 1919, the parties from whom he had leased said building owned the real estate next adjoining said leased premises, and on which then was located a certain wooden building which by reason of its age and dilapidated condition had become especially liable to fire and so situated as to endanger other property by a communication of fire thereto if fire occurred in said last named building; that by reason of said building constituting a fire hazard it was condemned by the state fire marshal, after inspection and ordered removed within sixty days from September 6, 1919, and notice to that effect was served on said date upon the owners of said property; that no appeal was taken from the order of the state fire marshal, but that the defendants failed to comply with said order and permitted said building to stand in its dilapidated condition and that such building continued to be a menace to adjoining property; that in March, 1920, the then owners of said land by warranty deed conveyed said land and the building thereon to appellees other than appellee corporation, the grantors in said deed at said time notified said appellees that said building had been condemned and ordered removed by the state fire marshal; that said appellees went into possession of said building with full knowledge of the facts; that they thereafter on February 16, 1922, conveyed said property to appellee corporation of which corporation said appellees were the officers, directors, and principal stockholders; that on August 13, 1922, while said building was owned by said corporation it caught fire through some unknown cause and the fire spread to and was communicated to the building so leased by appellant, completely destroying the same and the property of appellant therein located.
The second paragraph after alleging the facts concerning appellant's having leased and occupied a certain building in which he was conducting an electrical supply business and in which he had a large stock of goods alleged that on the lot next adjoining his place of business there had been for many years a wooden building, the property of defendants; that on August 13, 1922, said building was and for many years prior thereto had been in a dilapidated, crumbling, run-down, decayed, and disintegrated condition and for many years had been in need of repairs; that appellees on said day and for many years prior thereto knew that building was a menace as a fire hazard to the building leased by appellant; that they knew said building so owned by them was easily susceptible to fire and dangerous because of its condition, and that by reason of its condition it was a nuisance to adjoining buildings and that it was the duty of appellees to repair or remove the same, but that appellees in disregard of their said duty permitted the building to remain in its said dangerous condition and that on August 13, 1922, said building by reason of its dilapidated condition and by reason of appellees' permitting it to so remain caught fire and burned and that the flames therefrom communicated with the building in which appellant was located was thereby completely destroyed to plaintiff's damage for which he demands judgment.
A demurrer having been sustained to each paragraph of complaint, appellant appeals and contends that the court erred in sustaining the demurrer to each paragraph of his complaint.
Section 11767 Burns 1926, § 7, § 7441g Burns 1914, Acts 1913 p. 556, provides for the inspection of buildings by the State Fire Marshal and his deputies and assistants and provides that when they find any building which for want of repairs or by reason of age, is in a dilapidated condition or otherwise is especially liable to fire and if so situated as to endanger other property, he shall order the same removed or remedied, and that the owner shall forthwith comply with such order. This section provides that the owner may appeal from the order of a deputy or assistant fire marshal to the State Fire Marshal, who shall review such order and decision, and that, after review by the State Fire Marshal, an appeal may be taken within five days to the circuit court. If no such appeal is taken or if an appeal is taken and the final order is not complied with within the time fixed, the fire marshal is authorized to cause the building to be repaired, torn down, and the materials removed, if necessary, at the expense of the owner, and any owner who fails to...
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