Weisberg v. Boatmen's Bank

• Decision Date: 06 December 1922
• Docket Number: No. 23149.,23149.
• Parties: WEISBERG v. BOATMEN'S BANK.
• Court: Missouri Supreme Court

245 S.W. 1053

WEISBERG v. BOATMEN'S BANK.

No. 23149.

Supreme Court of Missouri, in Banc.

December 6, 1922.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by Isaac Weisberg against the Boatmen's Bank. Judgment for plaintiff, and defendant appeals. Cause transferred to St. Louis Court of Appeals.

Lehmann & Lehmann, and Sears Lehmann, all of St. Louis (Fauntleroy Cullen & Hay, of St. Louis, of counsel), for appellant.

Leonard, Sibley & McRoberts, Glen Mohler, and Geo. L. Stemmler, all of St. Louis, for respondent.

RAGLAND, C.

Plaintiff was sleeping in a room on the sixth floor of the building occupied by the Missouri Athletic Association at the time the fire broke out which destroyed it on the morning of March 9, 1914. He got out of the burning building by going down on a fire escape. He brings this suit to recover for injuries sustained and for personal effects lost, as a result of the fire.

The building, which was owned by defendant and which was located at the northwest corner of Washington avenue and Fourth street in the city of St. Louis, has heretofore been minutely described, with respect to its fire hazards, in former opinions of this court in this and other cases growing out of the same fire. Ranus v. Bank, 279 Mo. 332, 214 S. W. 156; Weisberg v. Bank, 280 Mo. 199, 217 S. W. 85; Newell v. Bank, 279 Mo. 663, 216 S. W. 918; Magill v. Bank, 288 Mo. 489, 232 S. W. 448. For the purpose of this case a brief description will suffice.

It was a seven-story, brick, nonfireproof structure. It had been built for a warehouse, but was subsequently remodeled within by the defendant bank and its lessee to make it available for social and athletic club purposes; rooms were constructed to be used as sleeping quarters, and kitchens, a dining room, gymnasium, parlors, reception rooms, billiard rooms, office, and swimming pool were put in. The building as originally constructed in 1889 was more than 90 feet in height. When the gymnasium was put in (on the seventh floor) the part of the roof directly over it was raised, and skylights installed. This increased the height of the structure some 12 or 14 feet. Neither at the time of the alterations nor afterwards was the building converted into a fireproof structure. Weisberg v. Bank, supra. Nor was it equipped with fire escapes according to either statutory or ordinance requirements. Newell v. Bank, supra.

Plaintiff's cause of action is bottomed on alleged violations of certain ordinances of St. Louis relating to the construction and alteration of buildings, in the conversion of the one in question from a warehouse into a housing suitable for an athletic club, and on a failure to equip the building with fire escapes as required both by ordinance and statute. The building ordinance mainly relied on is section 38 of the Municipal Code, which was enacted subsequent to the year 1889, and which provided in part as follows:

"Any building hereafter erected, altered or enlarged to a greater height than ninety feet above grade, shall be a building of the first class (fireproof), and shall comply in its construction with all the provisions and requirements contained in this article relating to buildings of said class."

The proper interpretation of this ordinance was the principal subject of controversy at the trial below, as it is here. Plaintiff claims that the ordinance was violated by making the alteration without making the building fireproof. Defendant insists that the violation was the altering and enlarging to a greater height than 90 feet, and that...