Olsen v. Hayden Holding Co.

• Citation: 92 Utah 551,70 P.2d 463
• Decision Date: 17 July 1937
• Docket Number: 5867
• Court: Supreme Court of Utah
• Parties: OLSEN v. HAYDEN HOLDING CO

70 P.2d 463

92 Utah 551

OLSEN v. HAYDEN HOLDING CO

No. 5867

Supreme Court of Utah

July 17, 1937

Rehearing Denied November 15, 1937.

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Action by Bertha Olsen against the Hayden Holding Company. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

S. D Huffaker and J. E. Pixton, both of Salt Lake City, for appellant.

A. W. Watson, of Salt Lake City, for respondent.

LARSON, Justice. FOLLAND, C. J., and EPHRAIM HANSON, J., concur. WOLFE, Justice, MOFFAT, Justice, dissenting.

OPINION

LARSON, Justice.

From a judgment of $ 462 for personal injuries, entered in the district court of Salt Lake county in favor of the plaintiff, defendant prosecutes this appeal. Defendant was the owner and engaged in the operation of an apartment house in Salt Lake City; plaintiff was a tenant of defendant, occupying an apartment on the basement floor. On May 17, 1935, at about 5 o'clock p. m. plaintiff, while going to her apartment from the lobby of the apartment house, fell on the stairway leading to the basement floor and was injured. In her complaint she alleged negligence of defendant in failing to maintain a proper system of lighting in the hall and stairway on the date of the accident. The relationship of landlord and tenant is admitted, and no question is raised as to plaintiff having met with the accident alleged, or the extent of her injuries. Three questions only are presented by the record: (1) Did the city ordinance pleaded by plaintiff apply to the apartment house where the accident occurred? (2) Was there sufficient evidence of defendant's negligence to take the case to the jury? (3) Does the evidence conclusively establish contributory negligence on the part of the plaintiff? We shall discuss these questions in order.

Plaintiff pleaded section 3306 of the ordinance in haec verba and defendant's duty under the section. Defendant in its answer admitted the existence and validity of the ordinance, but alleged it did not apply to the building in question. Plaintiff did not offer the ordinance in evidence, but defendant put the whole ordinance into the record. Section 3306 reads:

"Every stairway or other means of exit into corridors and passageways appurtenant thereto shall be provided with an adequate system of lighting, either natural or artificial. Lights in the exit signs shall be kept burning at all times that the building served by such stairways or exits is being used or occupied."

Other sections material to the question here presented are set forth:

Section 102. "The purpose of this Code is to provide certain minimum standards, provisions and requirements for safe and stable design, methods of construction and uses of materials in buildings and/or structures hereafter erected, constructed, enlarged, altered, repaired, moved, converted to other uses or demolished and to regulate the equipment, maintenance, use and occupancy of all buildings and/or structures.

"The provisions of this Code shall be deemed to supplement any and all state laws of the State of Utah relating to buildings."

Section 103. "New buildings and/or structures hereafter erected in Salt Lake City, shall conform to all requirements of this Code; and all requirements in this Code, unless specifically provided, shall apply to new buildings.

"Additions, alterations, repairs and changes to the use of occupancy in all buildings shall comply with the requirements for new buildings except as otherwise provided in Sec. 104 of this Code."

Section 105. "The requirements contained in this Code, covering the maintenance of buildings, shall apply to all buildings and/or structures now existing or hereafter erected. All buildings and/or structures and all parts thereof shall be maintained in a safe condition, and all devices or safeguards which are required by this Code at the erection, alteration or repair of any building shall be maintained in good working order.

"This section shall not be construed as permitting the removal or non-maintenance of any existing devices or safeguards unless authorized in writing by the Building Inspector."

Section 305. "It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, remove, demolish, convert, equip, use or occupy or maintain any building and/or structure or any portion of any building and/or structure in Salt Lake City, contrary to or in violation of any provision of this Code or to cause, permit or suffer the same to be done."

Defendant's contention is that section 3306 of the ordinance applies only to new buildings, erected after passage of the ordinance in 1933, while the apartment house in question was erected at some time prior to 1922. The applicability of the ordinance must be determined either from the wording of the ordinance itself; or from the purpose and objective with which the ordinance was ordained and declared; or from a consideration of both. The ordinance itself declares its purpose is to provide minimum standards governing alteration of buildings or the construction of new buildings, and "to regulate the equipment, maintenance, etc. of all buildings." Section 102, supra. Note the use of the inclusive "all buildings" with respect to regulating the equipment, maintenance, and use, as distinguished from the expression "hereafter erected" with respect to the construction or alteration of buildings. And in section 105, supra, note that the "requirements contained in this Code covering maintenance shall apply to all buildings now existing or hereafter erected" and that "all buildings shall be maintained in a safe condition." And in section 305, on penalties, "It shall be unlawful for any person, etc, to erect * * * or maintain any building contrary to or in violation of any provision of this Code." We cannot assume that the use of all inclusive terms in the provisions with respect to maintenance, as distinguished from the expression "hereafter erected" with respect to constructions, occurring regularly throughout the ordinance was a mere coincidence rather than an intentional design to make the safety features of maintenance applicable to the protection of all citizens alike in any apartment house licensed to do business within the city. The purpose of the requirements we are considering was obviously to safeguard the occupants of apartment houses, and others having lawful occasion to traverse the halls and stairways within them and to assure them a safe passage; and it would fall far short of that purpose if construed to apply only to new buildings thereafter erected, and set up different standards of care required or liability imposed, in maintaining such stairways, based upon the single element of time of construction. Especially is this true where, as here, the requirement of light may be met with negligible expense, and independent of the manner or method of the construction of the building.

A very similar case is presented in City of Seattle v. Hinckley, 40 Wash. 468, 82 P. 747, 748, 2 L. R. A. (N. S.) 398, where the city ordinance provided,

"That all hotels, office buildings, factories, tenements, and lodging houses more than three stories in height shall have at the ends of each main hallway * * * a fireproof stairway" etc.

Justice Dunbar, in an excellent opinion says:

"The contention of the respondent is that the ordinance was not retrospective in its scope, and that the city council did not intend in its passage that houses erected before the passage of the ordinance should be subject to its provisions; that it was not intended to interfere with fire escapes then existing, and that, if such ordinance should be so construed, it would be unconstitutional, as depriving respondent of existing rights. The trial court took this view, and the respondent was acquitted and discharged from custody. We think the court erred in its construction of this ordinance. It may be conceded that the fundamental rule of construction of statutes is that they shall not be construed to be retrospective unless the retrospective intention is expressed or can be plainly gathered from the provisions of the act. But it seems to us that the language of this ordinance is plain and unequivocal. When it is said that all hotels, office buildings, factories, tenements, and lodging houses more than three stories in height shall have a certain described fire escape, it seems to us it was the plain intention of the city council that all buildings described should have such appurtenances, and that, if it had been the intention to except any buildings from its provisions; such exception would have been expressed. The language is as broad and comprehensive as could well have been used. In reason, too, it would seem that if the city council, from observation or investigation, had determined that a certain character of fire escape was necessary for the preservation of people inhabiting certain classes of houses, it would be as important in the interest of the safety of the inhabitants of such houses to apply the rule to houses already built as to those thereafter built. There can be no doubt as to the constitutionality of this act under this construction.

"And there is no merit in the contention that the respondent had any inherent or vested right because he had complied with the law existing at the time he built. There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community. But, to be protected against such impairment or imperilment, is the universally recognized right of the community in all civilized governments; a protection which the government not only has a right to vouchsafe to the citizens, but which it is its...