201 Mo. 511 | Mo. | 1907
This action was commenced in the circuit court of the city of St. Louis, on the 7th day of November, 1903. It is brought by the plaintiff as. the widow of Morris Yall, deceased, for damages accruing to her from the death of her husband by the burning of a certain three-story brick building in the city of St. Louis, located on the southwest comer of Olive and Beaumont streets, and numbered 2700 and 2702 Olive street.
The petition alleges in substance that Robert B. Show, the defendant, was at all the times herein mentioned, and is at present, the owner of the above-described property, commonly called the Empire Hotel. That on the 25th day of July, 1899, the defendant and others, owners thereof, leased said property as a hotel, to William E. and Katharine Gillham for a term of ten years, commencing on the first day of September, 1899, and to be fully completed and ended on the 21st day of August, 1909, the said lessees and all claiming under them, by virtue of the provisions of this lease, yielding and paying a total rent therefor to the said lessors or their legal representatives of $17,550, in monthly installments of one hundred dollars payable on the first day of each month of every year during the said term, and further stipulations of the lease are as follows:
To this petition the defendant filed the following demurrer:
“Now, at this day comes the defendant in the above-entitled cause, and demurs to plaintiff’s second amended petition, and for ground of this demurrer, defendant states:
“First. That said petition does not state facts sufficient to constitute a cause of action, in this, that while it appears from the allegations of said petition that the defendant, with others, were the owners of the real estate therein described and the buildings thereon erected, it does not appear that the defendant and his co-owners were conducting a hotel or lodging house therein, and that there was therefore no duty resting upon the defendant under the law to provide or equip the said building with fire-escapes, iron balconies, or exterior iron stairs.
“Second. That said petition does not state facts sufficient to constitute a cause of action, in this, that while in said petition it is alleged that said defendant and others were the owners of real estate therein described and of the buildings thereon erected, it is not alleged that said buildings were built to be occupied or used as a hotel or as a lodging house, and that there was therefore no duty resting upon the defendant to*519 provide or equip the said buildings with fire-escapes, iron balconies, or exterior iron stairs.
< < Third. That said petition does not state facts sufficient to constitute a cause of action, in this, that it appears affirmatively from said petition that while said defendant and his co-owners of the real estate described therein and of the buildings thereon erected, it also appears that said buildings were erected and were leased by said defendant and his co-owners for a term of ten years prior to the passage of any law requiring any person to erect fire-escapes thereon, and that the said buildings were therefore, at the time of the passage of any law requiring the erection of fire-escapes, in the possession and sole control of the lessees under said lease.”
The circuit court sustained this demurrer and the plaintiff declining to plead further final judgment was rendered in favor of the defendant and for costs. Thereafter and during the same term, plaintiff filed his affidavit for an appeal to this court, which was allowed and granted.
At common law the owner of a building not particularly exposed to the danger of fire from the character of the work to be carried on in it, was not bound to anticipate the possibility of remote danger from fire, or that its occurrence would put in jeopardy the lives of his employees or tenants, and the law did not require, where the building was properly constructed for its intended use and purpose, the construction of fire-escapes, — the ordinary means of escape by stairs, halls, doorways and windows being deemed sufficient. [Pauley v. Steam Gauge Company, 131 N. Y. 90; Jones v. Granite Mills, 126 Mass. 84; Schmalzried v. White, 97 Tenn. 36.]
This action is bottomed upon the act of the General Assembly of the State approved March 27, 1901, which has been held by this court in Yall v. Gillham, 187 Mo.
The decisive question arising upon this record, is, was the circuit court right in holding that under the terms of this statute the owner of a leased building is not required to provide his building of the character described in the act with fire-escapes as provided by the act. Counsel for the defendant in their argument and brief have called our attention to a number of cases in other jurisdictions, notably that of the Supreme Court of Pennsylvania in Schott v. Harvey, 105 Pa. St. 222, and Keely v. O’Conner, 106 Pa. St. 321; Lee v. Smith, 42 Ohio St. 458, but an examination of the statutes upon which those decisions are based will show such a material difference from the language employed
Counsel for the defendant have favored ns with an exhaustive brief as to the meaning of the word “owner,” and as to the signification which should be attached to it in this statute in Schott v. Harvey, 105 Pa. St. l. c. 228, the. court very aptly remarked, “A number of authorities were cited, showing the construction which has been placed on the word ‘ owner ’ both by the Legislature and the courts. But the meaning of the word depends in a great pleasure upon the subject-matter to which it is applied, and as it is used in each of the instances cited in an entirely different connection, they throw scarcely a glimmer of light upon the question. The term ‘owner’ is undoubtedly broad enough to cover either view of the case.” If the construction for which the defendant contends should be adopted, it would convict the General Assembly, in our opinion, of having used a number of useless words. If the word “owner” was intended to mean the owner of the business, or the person conducting the hotel at the time of the fire only, then it was entirely unnecessary to name the owner or proprietor. Of all the statutes to which our attention has been directed by the learned counsel on either side of this case, the act of the Legislature of Illinois, approved June 29, 1885, entitled, “An Act relating to fire-escapes for buildings, ’ ’ approaches more nearly to our Act of 1901 than any we have examined. In the case, of Landgraf v. Kuh, 188 Ill. 493, the language of the statute was, ‘ ‘ The owner or owners, trustees, lessee, or occupants, of any building,” etc. And the same contention was made in that case as was made
But if we are to invoke what might be termed the equities of the statute, while it unquestionably does place the obligation upon the lessee to provide the fire-escapes in case the landlord has failed to do so, we think the statute imposes the initial duty upon the owner and rightfully so, because the whole scope of our act -is to make the fire-escapes a part of the construction of the building itself, and it is unreasonable as between the landlord and the tenant to cast upon the tenant the burden of building an expensive addition to the house which was to become so attached to it as to become a part of it. A fire-escape of the character and dimensions required by the act in question is a permanent one, and, as said by McAdam in his work on Landlord and Tenant (3 Ed.), vol. 1, p, 440, “It is not within the range of ordinary repairs which the tenant, in the absence of an agreement to the contrary, is required to make.” In 2 Shearman & Redfield on Negligence (5 Ed.), section 702a, 1212, it is said: “Inmost of the States, if not all, the owners and lessees of certain classes of buildings, exceeding a specified number of stories in height, such as factories, hotels and tenement houses, are required to provide extra precautions for
Our conclusion is that the learned circuit court erred in holding, that the petition did not state a cause of action against the defendant as owner of the building, and that it was not necessary to charge the defendant to make the further allegation that he was conducting the hotel himself when the Act of 1901 went into effect and when the fire occurred.
As to the second ground of the demurrer, that it was not alleged that the buildings were built to be occupied as a hotel, it is sufficient to say that it sufficiently appears from the petition and the lease set forth therein, that the defendant leased the house “asa hotel ’ ’ and that it was conducted as a hotel by the tenants, the G-ill-hams, and the defendant knew it was being so conducted.
The third ground of demurrer is that the defendant owner had, prior to the passage of the Act of 1901, leased the premises for a term of ten years, and that at the time of the passage of the law requiring the erection of fire-escapes, the building was in the sole possession and control of the lessees and that therefore
It follows that the judgment of the circuit court must be and is reversed and the cause remanded for a new trial in accordance with the views herein expressed.