Parr v. McDade, 2--1072A87

• Citation: 161 Ind.App. 106,314 N.E.2d 768
• Decision Date: 31 July 1974
• Docket Number: No. 2--1072A87,2--1072A87
• Parties: James N. PARR and Louise Alston Parr, Appellants, v. Roosevelt McDADE, Appellee.
• Court: Court of Appeals of Indiana

Page 768

314 N.E.2d 768

161 Ind.App. 106

James N. PARR and Louise Alston Parr, Appellants, v. Roosevelt McDADE, Appellee.

No. 2--1072A87.

Court of Appeals of Indiana, Second District.

July 31, 1974.

Rehearing Denied Sept. 5, 1974.

G. Ronald Heath, Thomas P. Ledgerwood, Indianapolis, for appellants.

George E. Martz, Forrest B. Bowman, Jr., Richard Kammen, David E. McClure, Indianapolis, for appellee.

WHITE, Judge.

Mr. and Mrs. Parr, owners of an apartment house (owners), appeal from a $50,000.00 judgment rendered against them on a jury verdict in favor of Roosevelt McDade, a tenant who was injured when he jumped from his second floor apartment to escape a fire which had originated in an apartment occupied by owners' resident manager. The fire was concentrated in a children's bedroom being heated by an open-flame gas space heater which the resident manager had told Mr. Parr was dangerous. He had promised, but failed, to replace it with a hot water radiator.

Finding no reversible error we affirm.

A proper grasp of the issues raised by the contentions of error relied on for reversal requires a more detailed statement of the facts. In formulating that statement we look to the undisputed facts and, where the evidence is conflicting, to that evidence and the reasonable inferences therefrom which are most favorable to the appellee. Palmer v. Decker (1970), 253 Ind. 593, 255 N.E.2d 797; Estate of Barnett (1974), Ind.App., 307 N.E.2d 490.

Owners acquired the apartment house located at 1301 Broadway, Indianapolis, by purchase in December of 1965. Its condition then and at the time of the fire, November 25, 1968, was substantially the same. (At the time of the trial owners no longer had any connection with the building. Neither did McDade nor his witness, the resident manager, Mrs. Mayme Willis.) It was a two story frame building containing six apartments. Heat was furnished to all apartments from one gas-fired, hot-water furnace. Each room in the building, with the exception of the back bedroom in apartment No. 28 on the first floor, contained a hot water radiator which heated it. The heating device in this bedroom was an open-flame vented, gas space heater attached to the building.

At the time of the fire, and for some four months prior thereto, this No. 2 apartment was occupied by Mrs. Mayme Willis and her three small children. Mrs. Willis was employed by the owners as resident manager. Her duties included using the apartment as a collection spot for the rents which the tenants of other apartments brought there to her. She also cleaned the hallway, cleaned vacant apartments, showed them to prospective tenants, and rented them. Her most valuable service, in Mr. Parr's opinion, 'was being there' and for that purpose No. 2 was the logical apartment and he let her have it rent free. He paid her no other compensation.

Immediately prior to the time that Mrs. Willis moved into apartment No. 2 with her children in July of 1968, she had been living in a house at another location with her husband Jesse. At that time, although not living on the premises, they were nevertheless acting together as the manager of the 1301 Broadway building and were being compensated by separate checks. They had first become managers in 1966 when they were living on the premises in a second floor apartment as rent paying tenants. When the prior manager left Mr. Parr employed them and compensated them by charging them no further rent.

In 1966 when she was acting with her husband as resident manager and living in the second floor apartment, Mrs. Willis first became aware of the gas heater in the No. 2 ground floor apartment. (Mr. Parr had known of its existence, though not of its danger, from the time he bought the building.) Two tenants who lived there at that time complained about the heater being dangerous. Mrs. Willis told Mr. Parr and he said he would have a radiator put in. When she herself moved into that apartment in 1968 she did not think of the gas heater until it got cold weather and she had to light it to heat the room for her children who slept there. It was then that she noticed that the flame was just an open flame and when it was lighted and turned up the flame would come all over the heater. There was no cover on it. Much of her description of the heater is not in the record. Without objection, she drew a picture of it with chalk on a board when she said she couldn't describe how it looked but could draw a picture of it.

In 1968 she again told Mr. Parr about the heater and he again promised to replace it with a radiator.

Plaintiff-appellee Roosevelt McDade became a tenant of a second floor apartment in the building some four to six months prior to the fire. Apparently his lease was parol (either week-to-week or month-to-month) with no express covenants by the landlord. He was unmarried and was the apartment's sole occupant. He knew nothing of the existence of the gas heater until after the fire.

On the night of the fire it was cold weather and the gas space heater was burning in the bedroom when Mrs. Willis put her children to bed. The flame was turned low. She went to sleep in the living room. Some time later, she was awakened by her children screaming. She ran into the kitchen and saw the two boys trying to push the baby bed out of the bedroom into the kitchen but it was stuck in the doorway. At that time the fire was all confined to the bedroom. There was no fire in the kitchen. She picked the baby up, pushed the bed back to let the boys through the doorway and then pushed them ahead of her as she carried the baby out the front door. The fire department arrived quickly and rescued several people from the second floor. McDade, on the other side of the building, found his exit blocked by smoke and heat.

Getting no answer to his calls for help, he jumped, breaking a leg. (Appellants do not contend on appeal that his injury was not a proximate result of the fire or that he was guilty of contributory negligence as a matter of law, so the details of his jump are not significant. For like reasons the details of his injury and damage are also omitted.)

Most of the gas heater was removed from the building by the city firemen who extinguished the fire and the remainder (e.g., the vent and gas pipe) was removed by owners when repairs were made. There was no evidence of the condition or appearance of the heater after the fire, nor of the condition or appearance of other fire debris or residue and no expert testimony as to the cause of the fire. Nevertheless, the fact that the fire originated in, and was largely confined to, the only room in the building in which there was an open flame makes reasonable the inference that the open flame heated some flammable material to the point of ignition, thereby precipitating the fire. We believe no more need be said of appellants' contention that there was no evidence of the 'actual cause' of the fire.

I.

Many, perhaps most, of the trial court's rulings to which appellants take exception, are reversible error only if the fire was not the proximate result of a breach, or violation, by the owners, of some duty owed by them to the plaintiff-appellee, Roosevelt McDade. The crucial question, then is this: Did owners owe Roosevelt McDade the duty of bringing to an end the practice of burning the open gas flame to heat the bedroom in the resident manager's apartment, or to warn McDade of the practice?

Appellee supports his argument for an affirmative answer to that question by citing, among other authorities, Indianapolis Abattoir Co. v. Temperly (1902), 159 Ind. 651, 653, 64 N.E. 906, 907, wherein the court said:

'The first objection taken to the complaint is that it does not appear that the appellant, as landlord, violated any duty which it owed to the appellee as its tenant. While it is true that in this state a landlord cannot be compelled to make repairs in the absence of an agreement to do so, and is not responsible for injuries resulting from such failure to repair, yet it is equally well settled that where he occupies a portion of the premises himself he is not permitted to use such parts in such manner as to injure his tenant.'

In the Abattoir case it is clear that the landlord did occupy a portion of the premises itself as its own office (not as anyone's living quarters). In the case at bar occupation by the owners of Mrs. Willis' apartment may not be so readily apparent. Had the apartment been used by Mrs. Willis only as management headquarters no one would doubt that her occupancy of it was as owners' employee and they were thereby in possession of apartment No. 2. Owners, however, contend that because she used the apartment also as family living quarters she occupied it as a tenant and not as their employee. But there was ample evidence in Mr. Parr's own testimony that by living in this apartment she was performing a duty of her employment as well as compensating herself for the other duties she performed as a manager. ¹ "Where the occupation of a house by a servant is connected with the service, or is required by the employer for the necessary or better performance of the service, the occupation is as servant, not as tenant, and the possession is that of the master." Chatard, Bishop v. O'Donovan (1881), 80 Ind. 20, 28, quoting Kerrains v. People, 60 N.Y. 221. Chatard was a suit by a Catholic bishop against a discharged parish priest for possession of the living quarters furnished by the Church to the priest. Holding that the bishop was entitled to possession, the court said:

'While it may not be said, . . . that the defendant (priest) was the hired servant of his Bishop, it does appear that he was appointed to his position by and held it at the discretion of the Bishop, and that his possession of the property was only an incident to his appointment, the better to enable him to discharge the duties of his office, and when, in the exercise of that discretion, which by...