Weeks v. McNulty

• Decision Date: 12 November 1898
• Citation: 48 S.W. 809,101 Tenn. 495
• Parties: WEEKS v. McNULTY et al.
• Court: Tennessee Supreme Court

48 S.W. 809

101 Tenn. 495

WEEKS v. McNULTY et al.

Supreme Court of Tennessee.

November 12, 1898

Appeal from circuit court, Knox county; Joseph W. Sneed, Judge.

Action by Lottie Weeks against Frank McNulty and others. Judgment for defendants. Complainant appeals. Affirmed.

Jerome Templeton and Chas. T. Cates, Jr., for appellant.

Washburn Pickle & Turner and Mynott, Fowler & Mynott, for appellees.

McALISTER J.

Plaintiff brings this suit to recover damages for the death of her husband, Arthur E. Weeks, which is alleged to have been occasioned by the negligence of the defendants. The grounds of liability alleged in the declaration are: First, that defendants were owners and proprietors of the Hotel Knox, a public inn in the city of Knoxville, and had negligently permitted said hotel to be in an unsafe and dangerous condition; and, second, that defendants had not employed a sufficient complement of servants for the protection of the hotel and guests; and, third, that the servants employed were incompetent, whereby said hotel was on April 9, 1897 destroyed by fire, and plaintiff's intestate, Arthur E Weeks, who was a guest therein, lost his life. The more specific grounds of negligence are stated in the second count of the declaration, viz.: That defendants had failed to provide fire escapes, as ordered by an ordinance of the city of Knoxville, or other reasonable means of escape from said building; that defendants failed to arouse deceased, or give him proper warning of said fire, and that this failure was due to defendants' omission in not employing a responsible watchman. It is further alleged that the fire was caused, and said hotel destroyed, by the negligence of defendants in allowing the cellar of the storehouse, which was situated next door to said hotel, to be filled with inflammable material. Defendants pleaded not guilty. The case was tried by a special jury, to whom a large volume of testimony was submitted. The trial resulted in a verdict and judgment for defendants. Plaintiff appealed, and has assigned errors.

The facts necessary to be stated are that the defendant Frank McNulty was the owner and proprietor of a public inn in the city of Knoxville, known as "Hotel Knox." Plaintiff's intestate, Arthur Weeks, was a traveling man, representing the Rochester Stamping Works and the Robinson Cutlery Company, of Rochester, N.Y. On the evening of April 7, 1897, said Weeks reached the city of Knoxville, registered at the Hotel Knox, and was assigned to room 49 on the third floor. About 3 o'clock in the morning following, Hotel Knox was destroyed by fire, and said Weeks perished in the flames. The fire was first discovered by the night watchman of the hotel, who immediately gave the alarm, ascended the stairway leading to the second and third floors, knocked upon the doors, and made every effort to arouse the guests. It is in proof that the guests were all aroused and escaped, excepting deceased and one other. It is in evidence that one of the guests, as he passed out, heard some one in 49 pounding at the door, and noticed that he had kicked out one of the panels. If this evidence is to be credited, it tends to show that deceased heard the alarm, but had unfortunately fastened himself in, or, in the excitement, had lost all command of his faculties. It is also shown that parties occupying rooms on the same floor with deceased, immediately contiguous, and across the hall in opposite and diagonal directions, all received the alarm, and succeeded in making their escape. The building was provided with a front and rear stairway, but had no fire escapes. South of the Hotel Knox, and immediately adjoining, was the banking house of the Third National Bank, which being only one story in height, several of the guests leaped upon its roof from the burning hotel building. This mode of escape was accessible to deceased, since his window overlooked the roof, but it is not shown he had knowledge of it.

The general rule of law governing the liability of an innkeeper is that he is not an insurer of the person of his guest against injury, but his obligation is merely to exercise reasonable care, that his guest may not be injured by anything happening through the innkeeper's negligence. 11 Am. & Eng. Enc. Law, p. 32. "There is no natural presumption," said this court, "that a fire, the origin of which is unknown, was the result of the want of care of the owner or occupant of the premises. The ancient rule of the common law, which presumed negligence in such cases, was pronounced in the reported cases to be harsh and unreasonable, and was by St. 6 Anne, c. 31, abrogated. The courts of this country, whether regarding the statute of Anne as in force or not, have unanimously held that negligence or misconduct was the gist of the action against one upon whose premises a fire had originated, and that such negligence would not be presumed from mere proof of the loss by fire communicated from the premises of another." Louisville & N. R. Co. v. Manchester Mills, 88 Tenn. 659, 14 S.W. 314. It must be shown that the negligence of the innkeeper in this case was the proximate cause of the fire and the consequent injuries. Deming v. Storage Co., 90 Tenn. 353, 17 S.W. 89; Railroad Co. v. Kelly, 91 Tenn. 699, 20 S.W. 312; Cable Co. v. Zopfi, 93 Tenn. 374, 24 S.W. 633. We understand these principles were substantially charged by the circuit judge, and the issues of fact have been resolved by the jury in favor of the defendants. We find material evidence in the record to sustain their findings, and, under the rule, the verdict cannot be disturbed on this assignment.

The third assignment is that the court erred in excluding testimony showing that defendant McNulty had stored in the rear of the grocery store, on the ground floor and near the elevator shaft, oils and other combustible materials. Council is in error in his state ment of the action of the court. The grocery store, it appears, adjoins the hotel, and is situated just north of it. It was owned by McNulty, the proprietor of Hotel Knox. The object of this inquiry was to show that defendants had been guilty of negligence in storing oils and other inflammable substances on the ground floor of the grocery store near the elevator shaft. This testimony was excepted to by defendants on the ground that no such negligence was alleged in the declaration. The negligence alleged was that defendants had permitted the hotel to be in an unsafe and dangerous condition, and that they had filled the cellar with inflammable materials, but there was no allegation of negligence in storing oils and other combustible material in the grocery store on the floor above the basement. Moreover, it seems defendants were permitted to prove that coal oil was kept in the grocery store, but when the question was asked how near the coal oil was kept to the elevator shaft, an objection was interposed by defendants' counsel, which was sustained by the court. If it be conceded that the action of the court in sustaining the objection was erroneous, it is not shown in the bill of exceptions what the witness would have answered. It has been frequently held by this court that the refusal of the trial court to permit answers to pertinent questions affords no cause for reversal unless the record shows affirmatively that the answers would have been competent and material evidence. Telegraph Co. v. Barnes, 95 Tenn. 271, 32 S.W. 207; Holmark v. Molin, 5 Cold. 484; State v. Turner, 6 Baxt. 203.

The fourth assignment is that the court erred in excluding the ordinance of the city of Knoxville requiring the owners and keepers of hotels to erect fire escapes thereon. The objection offered to this testimony was that the ordinance in question contemplated that notice to erect fire escapes must be given to the owner of the property by the board of public works, and that no such notice was given to the owner and proprietor of Hotel Knox. The declaration, as already observed, alleged that defendants had failed to provide fire escapes for Hotel Knox, "as ordered by an ordinance of the city of Knoxville." The insistence of counsel for defendants is that this ordinance contains no absolute requirement for the construction of fire escapes, but only provides that the same may be required by the board of public works if in their judgment they are deemed necessary. It is further insisted that, under the ordinance, the supervision control, and direction of everything pertaining to fire escapes, including the number, locality, strength, capacity, and mode of structure, are committed to the board of public works, and that no plans or directions were ever furnished defendants by said board. It is insisted, however, that failure to comply with even an absolute requirement of a municipal ordinance in the erection of fire capes will not render the delinquent party liable to a civil action for damages resulting from such neglect, especially where the ordinance provides a penalty, and does not provide on its face for the civil liability. It is conceded that a civil action will lie for an act done in violation of a prohibitory state law. Queen v. Iron Co., 95 Tenn. 458, 32 S.W. 460. But it is insisted that a different rule prevails when the act done is in violation of a city ordinance. This precise question was left open and undecided by this court in Schmalzried v. White, 97 Tenn. 45, 36 S.W. 393. It was held in Osborne v. McMasters (Minn.) 41 N.W. 543, where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that...