136 Ind. 431 | Ind. | 1893
This was an action in the Marion 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 fireman, 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
In attempting to do so, 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 eleven 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 eleven comrades; and 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.
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
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; and 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 thirty-five (35) feet in front and one hundred and twenty (120) in depth; it had been on fire several times during the last ten 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 twelve thousand dollars ($12,000) fire insurance on the building; and 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 main
"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 store rooms, 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 forty 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, without strengthening or add
When the fire broke out in the building, water was thrown upon the stock in order to put out the fire, and the weight of the stock, together with the weight of the water, and the unsafe, insufficient, insecure and dangerous character of the building, walls, and especially the foundation walls, caused it to give way without being-weakened or impaired at all in their bearing strength by the fire which was burning.
It is contended by the appellant:
First. That the owner of a building in the heart of a populous city owes it as a duty at common law, independent of any statute or municipal ordinance, to keep such building safe for purposes other than the requirements of trade and commerce; that such duty is comprehensive enough to embrace the safety of firemen and other officers whose duty, in the event of a contingency, may require them to be in and about the building, and that the complaint in this case shows a breach of this duty on the part of the appellee resulting, proximately, in the death of the appellant’s decedent.
On the other hand, it is contended by the appellee, Bowen:
First. That whether he is to be regarded as the owner or occupant of the building described in the complaint, the decedent entered it as a mere licensee, and that he was not guilty of any actionable breach of duty to him.
Secondly. That whether he be regarded as the owner or occupant of such building, and whether he be deemed to have invited the decedent to enter the building, he was not guilty of any actionable breach of duty to him.
Thirdly. That he was not guilty of any actionable breach of duty to the decedent, imposed by any municipal ordinance.
Fourthly. That the negligence set up in the complaint was-not the proximate cause of the death of the appellant’s decedent.
Fifthly. That the building described in the complaint, ' being in the exclusive possession of the appellee’s tenant, the decedent can not be deemed to have entered by his invitation or license, and hence he is not liable.
It is conceded that the decedent, at the time of his death, was lawfully in the appellee’s building. It is important, however, to determine whether he was there under an invitation from the appellee, either express or implied, or whether he was there as a mere licensee.
This is important for the reason that the appelleo would owe him a much higher duty, if he was there by invitation, than he would owe him if he entered under
The pleader evidently intended, we think, to charge that there existed a general implied invitation from the citizens of the city, including the appellee, to the firemen belonging to the fire department to enter their houses in case of a conflagration, for the purpose of extinguishing the fire. This allegation, therefore, does not enable us to determine whether the deceased was in the house of the appellee by invitation or as a licensee.
Judge Cooley, in his valuable work on torts, divides licenses into three classes.
Of the third class he says: “The third class of licenses comprehends those cases in which the law gives permission to enter a man’s premises. This permission has no necessary connection with the owner’s interest, and is always given on public grounds. An instance is where a fire breaks out in a city. Here the public authorities, and some private individuals, may enter upon adjacent premises as they may find it necessary or convenient in their efforts to extinguish or avert the spread of the flames. The law of overruling necessity licenses this, and will not suffer the owner of a lot to stand at its borders and exclude those who would use his premises as vantage ground in staying the conflagration. Indeed, it sometimes becomes necessary to destroy whole blocks of buildings to stop the spread of fire and the sufferer, instead of looking to the officials who command it or the parties who execute their commands, must seek
We think Judge Cooley, in the above extract, states the law correctly. It does not appear from the complaint before us, that the deceased, entered the house of the appellee, where he lost his life, by invitation either express or implied, but it does appear that he entered under a license given by law for the purpose of extinguishing a fire raging therein at the time. It is unnecessary, under this state of facts, to inquire what duty the appellee would have owed the deceased, had he entered the building under an invitation, or to inquire whether the premises were in the sole possession of a tenant of the appellee, as the case must turn upon the duty which the appellee owed the deceased at the time he entered under a license given by the law.
We do not believe it can be successfully maintained that the appellee owed to the deceased, who entered his premises under a license created by an overruling necessity, a higher duty than if he had entered under an express license granted by him.
In the case of Reardon v. Thompson, 149 Mass. 267, it was said: “No doubt abare licensee has some rights. The landowner can not shoot him.’’ He can not lawfully set spring traps for him. The licenser is liable, even to a licensee, if he is guilty of what the civil law termed ‘ ‘dolus.” But beyond this the licenser owes the licensee no duty, certainly not the duty of active diligence to see that no harm comes to him, and when the latter, without any invitation, and pursuant to a mere license, enters the former’s premises, he takes the risk of whatever dangers may be there. The law is so laid down in the text-books, and is established by a multitude of decisions.
Mr. Pollock, in his Work on Torts, p. 426, says: “In
To substantially the same effect are, Charles Ray, Negligence, 23; Parker v. Portland Publishing Co., 69 Me. 173; Pittsburgh, etc., R. W. Co. v. Bingham, 29 Ohio St. 369; Larmore v. Crown Point Iron Co., 101 N. Y. 391; Victory v. Baker, 67 N. Y. 366; Thiele v. McManus, 3 Ind. App. 132, 28 N. E. Rep. 327; Lary v. Cleveland, etc., R. R. Co., 78 Ind. 323; Evansville, etc., R. R. Co. v. Griffin, 100 Ind. 221; City of Indianapolis v. Emmelman, 108 Ind. 530; Indiana, etc., R. W. Co. v. Barnhart, 115 Ind. 399.
The question of the liability of the property owner to a mere licensee was very recently fully considered by this court in the case of Faris v. Hoberg, 134 Ind. 269, 33 N. E. Rep. 1028.
In that case, after a careful review of the authorities, the conclusion was reached that one entering a store, on his own private business, by a way not used by customers, was a mere licensee, and that the owner of the store owed him no duty. We think that the authorities fully establish the rule that the licenser owes to the mere licensee no duty except that of abstaining from any positive wrongful act which may result in his injury, and that the licensee takes all risks as to the safe condition of the premises upon which he enters.
To the question now under discussion, decisions based upon express statutes or ordinances, as well as decisions based upon the fact that the injured party entered the premises under an invitation, express or implied, are not applicable.
We are of the opinion that the owner of a building in
It remains, therefore, to inquire whether the appellee is liable for the injury of which complaint is made, by reason of the ordinance of the city of Indianapolis, set out in the complaint.
In the case of Willy v. Mulledy, supra, a statute provided that the owners of a designated class of buildings in the city of Brooklyn should provide the same with fire-escapes. It was held that this statute was intended for the benefit of tenants, and the owner of a building of the class named who failed to comply with the statute, was liable to a tenant who was injured by reason of such failure.
In the case of Parker v. Barnard, supra, there was a statute which provided that in any store or building in the city of Boston, in which there was placed a hoistway or elevator hole, such hoistway or elevator hole should be protected by a good and substantial railing, and good and sufficient trap doors, with which to close the same, and that the trap doors should be kept closed at all times except when in actual use by the occupant of the building. It was held that this statute was intended for the benefit of all persons lawfully entering such a building, and that for this reason a police officer who entered after night, in the discharge of his official duty, and was
In the case of Reardon v. Thompson, supra, there was an ordinance of the city of New York, similar to the statute mentioned in the case of Parker v. Barnard, and it was held that such ordinance was intended for the benefit of firemen, police officers and others, who, in the performance of their duties, might be called upon to enter such houses after night, and that a policemen injured by reason of a failure to comply with the ordinance might recover.
In the case of Luddington v. Miller, supra, a statute of the United States provided for private bonded warehouses. The statutes and the regulations of the treasury department placed such warehouses under the control and management of the warehousemen who owned the same, so far as the supervision and management of the hatchways were concerned. It was held that if such warehousemen negligently left open a hatchway in a passageway over which a custom officer would pass, in the discharge of his duties at such house, by reason of which the officer was injured-, he might recover for such injury.
The ordinance under immediate consideration is fully set out in the complaint, a synopsis of which is above set forth. There is nothing in the ordinance to indicate that the common council, at the time it was adopted, had in mind the safety of firemen in case of a fire occurring in the city. It was evidently its purpose to protect the citizens and those whose business required them to be in the vicinity of walls and buildings liable to fall and do them injury, and also to protect the city against fire by reason of structures liable at any time to take fire. That the common council did not have in mind the kind of wall described in the complaint, is evidenced by the fact
In this case, so far as it appears from the facts alleged in the complaint, the appellee had erected a building which, under ordinary circumstances, was reasonably safe for the purposes of commerce and trade. It became unsafe only by reason of the fact that it was stored with stationery, by a tenant, and by reason of the fact that in an extraordinary emergency large quantities of water were thrown into and upon the building, thus putting it to an extraordinary strain. We do not think the ordinance before us was intended to apply to a building of this character.
The appellee, in the construction of his building, was not, in our opinion, bound to anticipate extraordinary events, but if he constructed a building which was ordinarily safe under ordinary circumstances, he was not acting in violation of the terms of this ordinance.
This case has been ably argued orally, in open court, and briefed on both sides with unusual care and ability; and, after a careful consideration of all that has been said, and a careful examination of all the authorities cited, we have been forced to the conclusion that the complaint before us does not state facts sufficient to hold the appellee liable for the injury set up in the complaint, either under the common law or the ordinances of the city of Indianapolis.
It follows from this conclusion, that the circuit court did not err in its ruling, and that its judgment- should be affirmed.
Judgment affirmed