Newell v. Boatmen's Bank
| Decision Date | 01 December 1919 |
| Citation | 216 S.W. 918,279 Mo. 663 |
| Parties | JAMES P. NEWELL, Public Administrator in Charge of Estate of A. J. ODEGAARD, v. BOATMANS BANK, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John W. Calhoun Judge.
Cause remanded for new trial.
Lehmann & Lehmann and Fauntleroy, Cullen & Hay for appellant.
(1) The building was not a hotel or a dormitory, but was a "club house," for which the number of fire escapes should be determined by the building commissioner of the City of St Louis. Hence the plaintiff in resting his action upon the theory that the building was a hotel or dormitory, proceeded upon the wrong theory and was not entitled to go to the jury. R. S. 1909, secs. 10666, 10667, 10668. (2) There was no evidence proving or tending to prove that the failure of the bank to construct and maintain additional fire escapes was the proximate cause of the death of deceased. The facts themselves show lack of proximate cause. Armaindo v Ferguson, 55 N.Y.S. 769; Radley v. Knepfly, 104 Tex. 130. (3) The facts of this case bring it within the class referred to by this court in the case of Burt v Nichols, 264 Mo. 1, wherein the court said: "We can readily appreciate a case wherein the facts themselves show lack of probable cause."
Watts, Gentry & Lee for respondent.
(1) That the identical building in question falls within the provisions of the statutes which were violated, was held by this court recently in the case of Ranus v. Boatman's Bank, 279 Mo. 332. (2) Sufficient facts were shown to justify the court in submitting to the jury the question as to whether or not the violation of the statutes was the proximate cause of Odegaard's death. Burt v. Nichols, 264 Mo. l. (3) This court will defer to the discretion of the trial judge in granting a new trial on the ground that the verdict is against the weight of the evidence.
RAGLAND, C. Brown and Small, CC., concur.
John Odegaard lost his life in the fire which destroyed in the early morning of March 9, 1914, the building occupied by the Missouri Athletic Association. He was about thirty-two years of age, had never been married, and left no relatives in this State. Aged parents, dependent upon him for support and to whose support he was contributing at the time of his death, survived him, and were living in the City of Chicago. This suit was instituted by the public administrator of the City of St. Louis, having in charge his estate, and wherein he seeks to recover damages against defendant as owner of the building for having negligently caused the death of his intestate, in that, it had not prior to the fire equipped said building with suitable and safe fire escapes and balconies as required by the statutes of this State. The defendant answered by way of general denial. An affirmative defense was also pleaded, but it seems to have been abandoned.
The building in question was a seven-story structure situated at the northwest corner of Fourth Street and Washington Avenue in the City of St. Louis. The east half of the building up to the third story was occupied by the defendant as a bank, and was fireproof. The remainder of the building was not fireproof, and was occupied by the Missouri Athletic Association for its various club activities. The kitchen and dining room were on the third floor; a large room used for a banquet hall and dancing and about ten sleeping rooms were on the fourth floor; thirty-six sleeping rooms and a library were on the fifth floor; and thirty-nine bed rooms were on the sixth floor. Some of these rooms were equipped with two beds, so that the sleeping accommodations above the second floor were sufficient for as many as one hundred and twenty-five persons. About seventy persons were sleeping in this part of the building at the time of the fire. Working accommodations were also provided for one hundred and twenty persons above the second floor. There was a three-or-four-story building occupied as a seed store on the west side of defendant's building and immediately adjacent to it; there was a spiral fire escape on the south side on Washington Avenue, near the southwest corner of the building, which connected with landings at openings into the fifth and sixth stories; there was a stair fire escape on the east side on Fourth Street, near the north end of the building, which extended from the seventh floor, and passed windows in each story all the way down; and there was a metal stairway enclosed in a brick shaft outside of the main wall of the building on the north side and adjoining the projecting ell, which extended from the seventh down to the first floor, and with which each story communicated by a door. To get to it from the fifth floor it was necessary to go from a lobby through what was known as the linen room. There was sufficient blank wall on the Fourth Street side near the southeast corner of the building for a fire escape to have been placed there without passing any window.
The alarm was turned in about 1:55 a. m., and the fire chief arrived on the scene approximately three minutes later. He first observed flames pouring out of the windows in the second and third stories on the south and east sides, the heat being more intense on the east or Fourth Street side. About twenty minutes thereafter the entire east wall went down, carrying with it the major portions of all the floors. The north, south and west walls were left standing, and the rooms adjoining the south wall, as well as most of the floor of the corridors immediately adjoining them, remained intact. The fire must have originated on the floor separating the second and third stories. After it got under headway the central stairway and the central elevator shaft operated as huge chimneys through which masses of flame and smoke shot upward, pouring out in great volumes into the adjacent halls and corridors on each floor. Up and down these corridors men were running to and fro, uttering cries, in vain efforts to escape. No one got out of the building by way of the Fourth Street fire escape, because the flames coming from windows below the sleeping quarters by which it passed made its use impossible. A few found their way out down through the enclosed stairway and some jumped from the windows on the west side on to the seed store roof. Some half dozen persons came down the Washington Avenue escape, but, so far as the evidence discloses, only one from the fifth floor, a man who...
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