Woodruff v. Bowen

• Decision Date: 20 October 1893
• Citation: 136 Ind. 431,34 N.E. 1113
• Parties: WOODRUFF v. BOWEN.
• Court: Indiana Supreme Court

136 Ind. 431

34 N.E. 1113

WOODRUFF

v.BOWEN.¹

Supreme Court of Indiana.

Oct 20, 1893.

Appeal from circuit court, Marion county; E. A. Brown, Judge.

Action by Mrs. Nancy E. Woodruff, administratrix of the estate of Henry D. Woodruff, deceased, against Silas T. Bowen, for damages for the death of plaintiff's intestate by defendant's negligence. Judgment for defendant. Plaintiff appeals. Affirmed.H. N. Spaan and W. A. Ketcham, for appellant. Howland & Howe and Duncan & Smith, for appellee.

COFFEY, J.

This was an action in the Marion county circuit court, brought by the appellant against the appellee, for actionable negligence resulting in the death of the appellant's decedent. The suit was brought for the benefit of the widow and children of the deceased. The complaint is in two paragraphs, to each of which the court sustained a demurrer. This ruling of the circuit court is assigned here as error. The able counsel for the appellant has prepared a synopsis of the complaint, the correctness of which is not disputed by the appellee, and for that reason we adopt it as a correct statement of the contents of the complaint. It is as follows: The first paragraph alleges that the decedent, Henry D. Woodruff, was in the employ of the city of Indianapolis as a fireman, and as such belonged to the organization known as the fire department of the city, which in turn was composed of a body of men duly appointed and acting under a code of rules, whose duty it was to put out any and all fires occurring within the limits of the city, the apparatus therefor being furnished by the city, and the compensation to the firemen and the cost of the apparatus being paid out of the city treasury. That as such firemen the deceased and his comrades were bound, whenever the alarm of fire was sounded, to attend and do all in their power to put out the fire, and while so doing were under the direction of the officers of the fire department. That on the 17th of March, 1890, a fire broke out in a building owned by the defendant, situate on Washington street, and deceased, with other firemen, in response to the alarm, went to the building to put it out. In attempting to so do, under the control and command of the chief of the fire department and his assistants, in the discharge of his duties as fireman, and under the orders of the officers of the fire department, he had gone upon the roof of the building, and while there in the course of his employment, it being a proper place for him to be at the time when the accident occurred, and while he believed, and had reason to believe, that it was reasonably safe for him to be on the roof in company with the other firemen, the roof and other portions of the building, without warning, gave way, and precipitated the deceased and 11 other firemen into the basement of the building, midst the falling and burning debris of the roof, which caused the death of the deceased and his 11 comrades. That he was killed without any fault or negligence on his part, but because of the negligence of the defendant, as follows: The defendant, for a long time prior to the 17th of March, had been a resident of the city, had owned the building, and, in common with other citizens of the city, enjoyed the benefits and protection afforded by the fire department. At the time, and for a long time before that, he knew and had known that it was the duty of the deceased and his comrades to respond to alarms of fire, and to attempt to put out any fire that might break out in his building. The building was situate in the business center of the city, and in its most frequented portion, and defendant knew that it was in constant danger of catching fire, either by accident or design. The defendant as a resident of the city, and as a constituent part of the government, and as entitled to the protection of the fire deparment, invited the decedent and his comrades, in their capacity as firemen, into and onto the building. That at some time prior to the fire the defendant, as the owner of the building, had leased the same to the Bowen-Merrill Company, who were in possession at the time of the fire under the lease, but long before then, and before the execution of the lease, the defendant had changed, enlarged, and repaired his building; but when he built it, and at the time of the accident, it had a substantial-appearing iron front, and the deceased believed, and had reason to believe, that the building was as substantial as it appeared, but in fact it was a remodeled building, made much larger and higher than it was originally, and when defendant remodeled and rebuilt it he did not increase the strength of the foundation walls, and the whole building, back of the imposing iron front thereon, was insufficiently built and insecure, while having the outward appearance of strength to the deceased and others whose duty called them to the same. During the time while the building was being occupied by the Bowen-Merrill Company as a tenant of the defendant, the defendant was the president and chief executive officer of the company, and owned $35,000 out of the total capital of $80,000, and during the entire continuance of the lease the right was conceded to him by the company to come upon the premises, and to make thereon such improvements and repairs as he might deem necessary for the protection and preservation of the building. That in remodeling the building it was built unsafely,-the walls not strong enough, the foundation not sufficient to meet the exigencies and requirements for which the building was intended and used. That defendant knew when he leased the building that the company would place, and did place, in it a stock of stationery, books, etc., and he also knew that the building was not strong enough to bear the weight of such stock. He also knew at the time when he executed the lease, and at the time when the deceased was killed, that the building was not strong enough, and was so insecurely built that it would not stand the weight of the stock and any additional strain that might be put upon it in case of fire by the weight of the water which would be thrown upon the stock to put out the fire, and at the time of the fire the weight of the stock and the weight of the water, because of the weak and insufficient character of the building and foundation walls, gave way. That the building was so weak, insecure, and unsafe as to be dangerous to all who might go about it in case any additional weight might be placed upon the same as in case of fire. At the time of the death of the deceased, defendant was receiving rent for the building. Deceased did not know of the unsafe and negligent construction and condition of the building at and before it fell. That deceased left a widow and four children under nineteen years of age. The second paragraph thereof states substantially the same facts as the first, with the following additions: The building was 35 feet in front and 120 in depth. That it had been on fire several times during the last 10 years, and to secure himself from loss by fire at the time of the occurrence of the fire, and for a long time before that, defendant had carried $12,000 fire insurance on the building. That on the 28th of April, 1873, the city of Indianapolis passed an ordinance in which it was provided, among other things: “It shall be unlawful for any person to construct, erect or maintain any unsafe, insecure and dangerous wall, building or structure within the limits of this city, and it shall be the duty of all persons owning premises upon which there is any dangerous, unsafe and insecure wall or building, to make the same safe and secure, either by properly repairing the same or by rebuilding the same within twelve (12) hours after receiving notice from the chief fire engineer. *** Each and every day in which such wall or building is permitted to remain unsafe, dangerous and insecure after the receipt of notice as herein provided, shall be held and taken as a separate and distinct violation of this ordinance, and as such punished. *** Sec. 6. Any wall, structure or building likely to fall, or to take fire, shall be taken and deemed to be unsafe and insecure within the meaning of this ordinance. All brick walls less than one foot in thickness, and which form a part or are intended to form part of a building more than two stories in height, shall be deemed unsafe and insecure.” This ordinance was in force from its passage until after the fire, and deceased in his lifetime, and the defendant, knew that it was in force. When the defendant became the owner of the premises, they were occupied by two storerooms, two stories in height, with walls on either side, and a continuous wall in the center contributed to the support of the roof and floors sufficiently to support the building in its then condition. After defendant became the owner, and after the building had been in existence for over 40 years as originally built, the defendant, being desirous of increasing the capacity and area of his premises without materially increasing the expense, added two stories to the two stories then existing, taking out the center wall above the basement, and without strengthening or adding to the capacity or strength of the east and west walls, or without adding anything to the foundation under the center walls, and supporting the new building thus erected in the center with iron and wooden pillars, upon which, in connection with the side and end walls, the floors of the second and third stories rested,...