Steiert v. Coulter

• Decision Date: 03 June 1913
• Docket Number: No. 8,009.,8,009.
• Parties: STEIERT v. COULTER et al.
• Court: Indiana Appellate Court

54 Ind.App. 643

102 N.E. 113

STEIERT

v.COULTER et al.

No. 8,009.

Appellate Court of Indiana, Division No. 1.

June 3, 1913.

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Action by Frank J. Steiert against Dave A. Coulter and others. Judgment for defendants, and plaintiff appeals. Reversed, with instructions.Jos. P. Gray, of Frankfort, for appellant. Sheridan & Gruber, of Frankfort, for appellees.

FELT, J.

This is a suit for damages for personal injuries brought by appellant against appellees. At the close of the plaintiff's evidence, on motion of the defendants, the court gave a peremptory instruction directing the jury to find for the defendants, which was done. Appellant thereupon filed his motion for a new trial, which was overruled, and judgment rendered for appellees for costs. Appellant has assigned as error the overruling of his motion for a new trial, which was asked on the ground that the court erred in instructing the jury to find for the defendants. The appellees have assigned cross-errors, alleging that the court erred in overruling the joint, the separate, and several demurrers of appellees to appellant's amended complaint.

The complaint alleges, in substance, that appellees were on April 29, 1910, and for many years prior thereto, the owners of a certain lot in the city of Frankfort, Ind., on which was erected a three-story brick building; that the west room of said building on the third story was, and for many years had been, used as a workshop for the manufacture of men's clothing, all of which was fully known to the defendants, and was run and operated with their consent; that on and prior to said date said building and workshop were not provided “with any ways or way of egress or means of escape whatever from fires; that there was not and had not been any fire escapes *** erected to, attached to, provided for, or in any manner whatever provided for said building, third story, and workshop,” by means of which persons in said workshop could escape in case of fire; “that the defendants had wrongfully, unlawfully, and negligently failed and neglected to construct” and maintain such ways of egress, appliances, and fire escapes, for the safety of persons in said workshop; that on said 29th day of April, 1910, and prior thereto, many persons were employed in said workshop, all of which was known to defendants at all times; that on said day plaintiff was working in said shop as a coatmaker, and while so employed on said day the building caught fire by some means unknown to him; that before he knew of said fire it spread so rapidly that it reached the stairways on the inside of said building, and by reason of the extreme heat and smoke cut off all means of escape; that as soon as he discovered said fire he tried to escape from said building “by means of the only stairways leading down from said third story,” which were the only stairways and the only means “of escaping from said workshop”; that it was impossible to go down said stairways without being strangled and burned to death; that plaintiff sought other means of escape, but was unable to find any, and the fire was fast approaching said workshop, and the heat and smoke were in the room, and he was being strangled and suffocated thereby; that he became frightened and terror stricken and believed he would be burned to death, and finding no fire escape or other means of escaping from the building, and believing that it was necessary to save his life, he jumped from a window of said shop on an iron awning extending to the top of the first story; that he was stunned thereby and unable to stay on said awning and fell therefrom to the brick pavement and was thereby severely injured; that if there had been suitable fire escapes on said building he could have escaped therefrom in safety without injury; that had he remained in said building he would have been burned to death; that his injuries aforesaid were caused by the “wrongful and unlawful neglect and negligence of the defendants” in failing to provide fire escapes for said building as provided by law, and all without any fault or negligence on the part of plaintiff. The complaint describes the injuries in detail and charges that they are permanent. There was a second paragraph, which is substantially like the first, except it is therein alleged that the third story of said building was leased to John C. Miller as a workshop for the manufacture of men's clothing.

The evidence shows that the shop in which appellant was working was on the third story and opened into a hallway, at either end of which was a stairway on the inside of the building, but there were no outside fire escapes on the building.

The court in directing a verdict for the defendants expressly stated in the instruction that he did so because the statute which provided a penalty against the owner of a building like the one here in question had been repealed and the present statute only applies to hotels; that no such action can be maintained for failure to put up fire escapes to buildings of the kind described in the complaint.

[1] The act of 1909 (Laws 1909, c. 118) is entitled an act to provide for the protection of human life from fire, and repeals all laws in conflict therewith, and especially repeals the act of March 10, 1903 (section 3841 et seq., Burns 1908 Statutes).

Section 1 of each of said acts refers to public buildings of various kinds and to “every building in which persons are employed above the second story in a factory, workshop,” etc., etc.

Section 6 of the act of 1903 (section 3846, Burns 1908) provided that “the owner or owners of any building described in this act,” who neglects or refuses to comply with the provisions of the act in respect to means of egress and fire escapes, “shall be fined not to exceed $200 and be deemed guilty of a misdemeanor punishable by imprisonment for not less than one month nor more than two months,” and also provides that in case of fire occurring in such building or buildings, in the absence of such fire escapes, the responsible person shall be liable in an action for damages with a penalty of $5,000 for each person killed, and also damages for personal injuries not causing death.

Section 6 of the act of 1909 contains substantially the same provisions, but limits their application to owners, lessees, or occupants of hotels and to school officers having charge of public property.

Appellees contend that this change in the act shows clearly the legislative intent was to limit cases of civil damages to the persons named in section 6 of the later act, and that no action for such damages will lie for an injury resulting from failure to comply with sections 1 and 2 of the act of 1909 against persons other than those named in section 6 of the act. This, in our opinion, is carrying the question of legislative intent farther than the facts warrant.

Section 6 of the act of 1903 is as broad in its application as the terms of the whole act and is highly penal. If the section only provided for civil damages, there would be more force to appellee's contention.

The Legislature, in passing the later act, evidently intended to limit the penal provisions specified in both acts to the persons named in the later act; but it does not follow that it intended to cut off all right to civil damages occasioned by a violation of the duty enjoined upon persons other than those named in section 6 of the act of 1909. It is a more reasonable presumption that the Legislature intended to limit the application of the penal provisions of the act and to leave the question of civil damages, except in the cases specified, to be governed by the general law on that subject, as already declared by the decisions of the courts of this state.

[2] The Legislature is presumed to be acquainted with the existing law, and, in legislating on any subject, to have in view its provisions, either statutory or otherwise, and in the construction placed thereon by the courts. Sutherland on Statutory Construction, vol. 2 (2d Ed.) §§ 355 and 499; City of Rushville v. Rushville Natural Gas Co., 132 Ind. 575-581, 28 N. E. 853, 15 L. R. A. 321.

In Monteith v. Kokomo Enameling Co., 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944, our Supreme Court had under consideration a case involving an injury to an employé while operating an unguarded circular saw. The court held the complaint to be under the statute requiring certain machinery to be guarded and said: “The act does not in terms give a right of action to the person injured, nor is any part of the penalty recoverable by, or payable to, such person. The general rule is that when a statute requires an act to be done by one person for the benefit of another, and an injury is sustained by one intended to be protected by reason of a violation of such statutory duty, an action lies in favor of the latter against the former for the neglect to perform such duty, even though the statute gives no special remedy.” See, also, Rose v. King, 49 Ohio St. 213, 30 N. E. 267-269, 15 L. R. A. 160;Pauley v. Steam Gauge, etc., Co., 131 N. Y. 90, 29 N. E. 999, 15 L. R. A. 194-197.

[3] It has been held in this state many times that, where a statute creates a duty, a violation of such duty, which is the proximate cause of an injury to one to whom the duty is owing, creates a liability in his favor, provided he is not guilty of negligence contributing to such injury. Indiana, etc., R. Co. v. Barnhart, 115 Ind. 399-411, 16 N. E. 121;Nickey v. Steuder, 164 Ind. 189-191, 73 N. E. 117;Indland Steel Co. v. Yedinak, 172 Ind. 423-427, 87 N. E. 229, 139 Am. St. Rep. 389;Princeton Coal Mining Co. v. Lawrence (Sup.) 95 N. E. 423-427;Mortimer v. Daub, 98 N. E. 845-847;Fox v. Barekman (Sup.) 99 N. E. 989-991.

[4][5] This complaint shows that appellant was rightfully in the tailor shop on the third floor of the building at the time the fire occurred. Therefore, whatever duty the law enjoins upon...