Yall v. Gillham

• Decision Date: 15 March 1905
• Parties: FANNIE YALL v. GILLHAM et al., Appellants
• Court: Missouri Supreme Court

86 S.W. 125

187 Mo. 393

FANNIE YALL v. GILLHAM et al., Appellants

Supreme Court of Missouri, First Division

March 15, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Reversed.

Paxson & Clark for appellants.

(1) There is no duty under the common law upon any one to equip a building with fire-escapes. Pauley v. Gauge & Lantern Co., 131 N.Y. 90; Jones v. Granite Mills, 126 Mass. 84; Keith v. Granite Mills, 126 Mass. 90; Schmalzreid v. White, 97 Tenn. 36; 13 Am. and Eng Ency. of Law (2 Ed.), 82. (2) Section 9036, Revised Statutes 1899, has no application to this case, and was repealed by the act of 1901. Johnson v. Snow, 102 Mo.App. 239. (a) Statutes are to be construed with reference to the common law. Endlich on Interpretation of Stat., sec. 127. A penal statute is to be construed strictly. Huies v Railroad, 95 N.C. 434. The same rule of strict construction applies to statutes creating rights or fixing liabilities where none would otherwise exist, and to all statutes in derogation of the common law. Wilbur v. Craine, 13 Pick. 290; Rogers v. Currier, 13 Gray 139; West v. Railroad, 63 Ill. 545; Townsend v. Wilbur, 88 Ill. 197; Williams v. Vanderbilt, 145 Ill. 238; Dean v. Railroad, 119 N.Y. 540; Sutherland on Construction of Statutes, 374. (b) The liability is several and not joint, and is imposed upon only one of the classes enumerated in the act. Schott v. Harvey, 105 Pa. St. 122. (c) The statutes and decisions of other States reviewed. Willey v. Mulleby, 78 N.Y. 310; Pauley v. Gauge & Lantern Co., 131 N.Y. 90; Gorman v. McArdle, 67 Hun 484; Huda v. Glucose Co., 154 N.Y. 474; McLaughlin v. Armfield, 58 Hun 376; Lee v. Smith, 42 Ohio St. 458; Grant v. Mill & Powder Co., 14 R.I. 380; McCulloch v. Ayer, 96 F. 178; Landgraf v. Kuh, 188 Ill. 484; Schott v. Harvey, 105 Pa. St. 222. (3) The petition states no cause of action, the statute upon which it is grounded having been repealed. Johnson v. Snow, 102 Mo.App. 239.

Ernest E. Wood for respondent.

This case was based entirely upon section 9036, Revised Statutes 1899. The act of 1901 did not repeal section 9036. It is possible that it did repeal section 9037, but under no consideration could it repeal section 9036. Section 9036 provides for life ropes; section 9037 provides for fire-escapes. The one is inside the bedchamber; the other is constructed of iron on the outside of the building itself. The act of 1901 applies only to exterior iron fire-escapes constructed on the outside wall of the hotel building. Generally there would be but one such fire-escape for a building. Section 9036 provides for life lines in each room, which, as the section states, must be so placed as to be under the control of the lodger. Surely an exterior fire-escape could not be under the control of the lodger.

OPINION

MARSHALL, J.

This is an action to recover five thousand dollars damages for the death of the plaintiff's husband, Morris Yall, on February 9, 1902, while a boarder in the defendants' lodging-house or hotel, at Nos. 2700 and 2702 Olive street, in St. Louis, by the burning of said building. The plaintiff recovered a judgment for five thousand dollars, and the defendants appealed.

The petition, after alleging that the plaintiff is the widow of the deceased, and that the defendants were conducting and operating a hotel or lodging-house in the said building, which was known as the Empire Hotel, and that it was more than two stories in height, and that plaintiff was a lodger therein at the time of the fire and occupied a room on the third story, which room had an outside window, alleges two specific acts of negligence on the part of the defendants, to-wit: first, a failure to furnish to each room above the second story, which had an outside window, a rope or rope ladder of sufficient length to reach the ground, of strong material and securely fastened near an outside window of each room for the escape of the lodgers therein in case of fire, and failure to provide a red light at the head of each flight of stairs, and failure to provide exterior fire-escapes as required by law; and, second, a violation of the city ordinance which requires all hotels over two stories in height and containing more than twenty rooms to have two pairs of stairs leading from the ground to the uppermost story. At the beginning of the trial the following proceedings were had:

"Mr. Wood, counsel for plaintiff, said: If your Honor please, I have set up common-law negligence, but we do not propose to base our case upon common-law negligence.

"By the court: You dismiss as to that?

"By Mr. Wood: Yes, sir; we dismiss as to that.

"By Mr. Paxson: I make a motion to require the plaintiff to elect on which allegation he will proceed.

"By Mr. Wood: On the first count.

"By the court: What is the ground of negligence on which you propose to stand?

"By Mr. Wood: We propose to stand on the ground that they did not provide a rope or rope ladder.

"By the court: You stand on that ground alone?

"Mr. Wood: Yes, sir.

"By Mr. Paxson: I object to introduction of evidence on this count in this petition under that statement; it was prohibited by law to use the very appliance that he says now --

"The court (interrupting): What law was in force at the time of this fire?

"Mr. Paxson: The law of 1901. Now he proposes to stand upon an act as negligence which we are prohibited by law from doing.

"The court overruled the motion, and the defendants excepted.

"Mr. Paxson: Of course, I intend to embrace in that objection the fact that the petition states no cause of action whatever."

The court overruled this objection also, and defendants excepted.

The case made by the plaintiff is: that no ropes or fire-escapes were provided in the building; that the owners of the fee leased the property to the defendants on July 25, 1899, for a term of ten years, to be used as a hotel; that the lease prohibited the lessees from making any change or alteration in the building, and from using it for any other purpose without the consent of the owners; that all repairs deemed necessary by the lessees were to be made at the expense of the lessees, with the consent of the lessors; that the plaintiff's husband occupied the hall room on the third floor at the east end of the house; that a fire occurred in the building early in the morning of February 9, 1902, and that he was found dead in his room about two hours after the fire, having been severely burned; that originally the building was two separate residences, but that communicating doors had been cut between them on the first and second floors, but not on the third floor, and as thus changed it was used as a hotel, but that for eight months before the fire it was used only as a lodging or rooming-house; that there were three stairways leading from the first to the third stories; that the fire seemed severest in the center of the east house and worst on the third floor thereof; that the outside window of deceased's room was destroyed, but the plastering, bedding, carpet and window sashes on the inside of the room were not hurt; that there were no stairs in the rear of the east house; that plaintiff is the widow of deceased. This is a sufficient statement of the facts for the purposes of this case.

At the close of the plaintiff's case the defendants demurred to the evidence, the court overruled the demurrer, and the defendants excepted. The defendants introduced no testimony.

At the request of the plaintiff, the court gave the following instructions:

"The jury are instructed that if they believe from the evidence that the defendants were on the ninth day of February, 1902, conducting a hotel or lodging-house, and that the husband of plaintiff, Morris Yall, occupied a room therein on the third floor, and that the defendants failed to provide for the room in which Morris Yall was a lodger a rope or rope ladder for his escape in case of fire, then they should find for the plaintiff, provided they further find that Morris Yall would have escaped from the building if the rope or rope ladder had been placed there by the defendants, and provided you further find that there was no other means by which the said Morris Yall might have escaped from his room at the time of the fire.

"2. In order to find a verdict for the plaintiff, you must believe from the evidence, among other things as set out in these instructions, that the death of Morris Yall resulted directly from the failure of the defendants to provide the said building with a rope or life line, and the burden of proving said fact is upon the plaintiff, to establish the truth thereof by a preponderance or greater weight of the testimony."

I.

The case was tried in the circuit court upon the sole theory that it was the duty of the defendants to equip each room in the house that had an outside window, with a rope or rope ladder, of sufficient length to reach the ground, and of sufficient strength, and that the defendants neglected so to do.

The chief contention of the defendants is that there was not only no such duty resting upon them, but that they were prohibited by law from so doing.

The solution of the question involves a construction of section 9036, Revised Statutes 1899, and the act of March 27, 1901 (Laws 1901, p. 219).

Section 9036, Revised Statutes 1899, is the first section of chapter 146, entitled, "Public Safety," and was first enacted as a law by the act of May 2, 1877. [Laws 1877, p 326.] The act of 1877 contained ten sections. At the same session the General Assembly passed an act entitled, "An Act providing for personal safety from fire in places of public amusements." [Laws 1877, p. 328, approved April 27, 1877.] Prior thereto the General Assembly had passed the act...