Opinion
6 Div. 461.
December 20, 1917. Rehearing Denied March 23, 1918.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Tillman, Bradley Morrow and E. L. All, all of Birmingham, for appellant. Morris Loveman and F. E. Blackburn, both of Birmingham, for appellee.
It is well settled that:
"It is no part of the duty of a master to his servant, employed in a building properly constructed for ordinary business carried on within it, in the absence of a statute requirement, to provide a means of escape from a fire which is not caused by his negligence." 26 Cyc. 1114 (B), and cases cited.
Section 7095 of our Code is as follows:
"Any owner, proprietor, or manager of any hotel, office building, school building, store, or manufacturing building, which is more than two stories high, now erected, who shall fail for six months after the adoption of this Code to have securely fixed and conveniently arranged so as to be accessible to persons lodging in, working in, or occupying such building, in case of fire in such building, good and sufficient fire escapes or ladders for each story of said building, shall be guilty of a misdemeanor, and, on conviction, shall be fined not less than fifty nor more than five hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months, for each day so continued."
It is insisted for appellant that, being a penal statute, it must be strictly construed, especially with reference to the classes of persons who are to be subjected to its operation. The argument is that the words "owner, proprietor, or manager," do not, and under a fair construction cannot, include the mere lessee of a building, and that the statute applies the quoted words to the building only, and not to the business conducted within the building.
Similar statutes are to be found in many of the states, and they have been frequently before the courts for construction. Arms v. Ayer, 192 Ill. 601, 61 N.E. 851, 58 L.R.A. 277, 85 Am. St. Rep. 357; Yall v. Snow, 201 Mo. 511, 100 S.W. 1, 10 L.R.A. (N.S.) 177, 119 Am. St. Rep. 781, 9 Ann. Cas. 1161; Johnson v. Snow, 201 Mo. 450, 100 S.W. 5; Schott v. Harvey, 105 Pa. 222, 51 Am. Rep. 201; Lee v. Smith, 42 Ohio St. 458, 51 Am.Rep. 839; Steiert v. Coulter, 54 Ind. App. 653, 102 N.E. 113, 103 N.E. 117; 4 Neg. Comp. Cas. Ann. 561; Landgraf v. Kuh, 188 Ill. 484, 59 N.E. 501. Our statute seems to be materially different from all of the others, especially in its designation of the classes of persons upon whom the duty of provision is visited, and in the classes of buildings included within the provision. While, therefore, some of the reported cases might be persuasive, none of them supplies an authority directly in point.
It is of course true that penal statutes are to be strictly construed, but they are not to be construed so strictly as to defeat the obvious intention of the Legislature; nor is the maxim to be so applied as to exclude from the operation of the statute cases which the words, in their ordinary acceptation, or in the sense in which the Legislature obviously used them, would comprehend. Walton v. State, 62 Ala. 197. So it has been said that it is the duty of the court, while disclaiming the right to extend a criminal statute to cases out of its letter, to apply it to every case clearly within the mischief, or cause of making it, where its words are broad enough to embrace such case. Huffman v. State, 29 Ala. 40. This must be regarded as especially true in the case of all those statutes which are designed for the protection of human life by supplying conditions of safety or removing conditions of danger.
In ordinary speech the "owner" of a building is the person who has the title. Evidently, by the use of the additional words "proprietor or manager" the Legislature intended to extend the liability to persons other than the merely legal owners of the buildings designated. Worcester defines "proprietor" as "a possessor in his own right; an owner; a proprietary." The Century Dictionary defines it as "one who has the exclusive right or the legal title to something; an owner." These are the strict meanings of the word in a literary sense. But it is undoubtedly sometimes used in a broader sense, and the courts have several times held that in particular statutes it includes a lessee — the person occupying the premises — as well as the owner. Commonwealth v. Skatt, 162 Mass. 219, 38 N.E. 499; Winsor v. G. S. L. Society, 31 Wn. 365, 72 P. 66; Pierce v. Concord R. R. Co., 51 N.H. 590, 591.
So, also, even the word "owner" is sometimes used in statutes as including the person in possession and control of the property, though he be not the legal owner. Tompkins v. Augusta, etc., R. Co., 21 S.C. 420, 431; Laflin v. Svoboda, 37 Neb. 368, 55 N.W. 1049, 1050; Hemm v. Williamson, 47 Ohio St. 493, 25 N.E. 1, 2; Shultz v. Griffith, 103 Iowa, 150, 72 N.W. 445, 446, 40 L.R.A. 117; Hartford v. Brady, 114 Mass. 466, 470, 19 Am. Rep. 377; Keith v. McGuire, 170 Mass. 210, 48 N.E. 1090; Hornbein v. Blanchard, 4 Colo. App. 92, 35 P. 187, 188; Frazier v. State, 18 Tex. App. 434, 441.
A "manager" is one who directs or controls, and may, of course, include the owner's managing agent as well as the owner himself.
The foregoing considerations easily lead us to the conclusion, in view of the manifest purpose of the statute quoted, that the Legislature intended to impose the duty of providing fire escapes for the buildings enumerated, not only upon the general owners of such buildings in the strict legal sense, but also in many cases upon lessees who occupy and control the buildings, and subject them to the uses which bring them within the statutory description and purpose. This accords with the views of Justice Sayre adopted by this court in the case of B. R., L. P. Co. v. Buff, Adm'r, 77 So. 388, a case growing out of the same fire and counting upon substantially the same causes of action.
Ante, p. 94.
Although the complaint does not in terms allege that defendant was the "owner, proprietor, or manager" of the building in question, we think the first count does show such an exclusive occupancy, use, and control thereof by defendant as to fairly authorize the legal conclusion that defendant was the owner or proprietor of the building in the sense and for the purposes intended by the statute, and, we may here add, the evidence clearly supports the allegations in this respect. We conclude therefore that count 1, as amended, was not subject to the demurrer interposed.
Counts 2 and 4 are substantially identical with counts 1 and 4 in B. R., L. P. Co. v. Buff, supra, and, for the reasons there stated, the demurrers to these counts were properly overruled.
Count 5 is identical with count 5 in the Buff Case, as to which we held that the demurrer should have been sustained for that it did not appear either by formal allegation, or by facts alleged, that defendant was the "owner, proprietor, or manager" of the building in the sense intended by the statute. But, in view of the fact that the issues of duty and negligence were the same under counts 1 and 5, and the evidence showing without dispute that defendant was the owner or proprietor of the building in the sense of the statute, the error of overruling the demurrer was without prejudice to defendant.
With respect to count 4 — the superintendent's count — we may as well say here as later that, although the evidence shows that defendant had a servant or servants who had general supervision of the business conducted in the building and of the employés engaged therein, yet it does not appear either expressly or inferentially that defendant delegated to such superintendent the duty of providing means of escape in case of fire, and the general affirmative charge should have been given for defendant on this count as requested.
ANDERSON, C. J., and McCLELLAN, MAYFIELD, SAYRE, and THOMAS, JJ., hold that the refusal to so instruct the jury was error requiring the reversal of the judgment. The writer, with whom GARDNER, J., concurs, is of the opinion that, as the duty in question was nondelegable, and the liability of defendant was exactly the same whether considered directly as in other counts, or through the medium of its superintendent or other servant, and the record clearly shows that defendant was not prejudiced, by the failure of the trial judge to charge out this count as requested, the judgment should not be reversed therefor.
One count of the complaint — No. 6 — is framed with reference to a city ordinance of Birmingham, which will be found in the reporter's statement. This ordinance is attacked as unconstitutional because of its unreasonableness, and as being void on account of alleged inconsistency with the state statutes above referred to.
We do not think it is unreasonable or uncertain in any of its terms, nor does it conflict with sections 7095 and 7096 of the Code. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith, unless the statute limits the requirement for all cases to its own prescriptions. Adler v. Martin, 179 Ala. 97, 113, 59 So. 597; Borok v. Birmingham, 191 Ala. 75, 67 So. 389, Ann. Cas. 1916C, 1061; Turner v. Lineville, 2 Ala. App. 454, 56 So. 603. Moreover, the general power to require buildings to be equipped with fire escapes, when deemed necessary, is expressly conferred on municipalities by section 1264 of the Code.
It will be noticed that the requirement of the ordinance — quite different from the statute — is based upon the use of the buildings, and not merely upon ownership or management. Regardless of the inherent character or design of the building as fashioned or intended by the owner, the use of the building imposes the duty of supplying the specified protection, whether upon the owner, manager, or tenant in possession. Such, we think, is the manifest intention and scope of the ordinance. We hold therefore that the defendant company, as the occupying tenant who subjected the building to its own use — whether as an office building or business establishment where its employés performed their service — was under the legal duty of equipping the building with fire escapes in reasonable compliance with the requirements of the ordinance.
Whether it did so, and whether its failure to do so rendered necessary plaintiff's escape by jumping from a window to his hurt, were under the evidence questions to be determined by the jury. So, also, whether, under the circumstances shown, plaintiff's conduct with respect to the time and manner of his exit from the burning building was negligent or otherwise was a question of fact for the jury.
Under count 2, charging failure to furnish a reasonably safe place to work in, whether with reference to ordinary exits from the fourth floor, or to the statutory provisions for fire escapes, we hold as in the Buff Case, supra, that the issues were properly submitted to the jury.
Charge E was properly refused to defendant. A. G. S. R. R. Co. v. Robinson, 183 Ala. 265, 62 So. 813, overruling on that point B. R., L. P Co. v. Saxon, 179 Ala. 136, 59 So. 584.
Charge H was properly refused because, as already pointed out, ownership, within the meaning and operation of the statute, could include a lessee in control of the building as defendant is shown to have been. Moreover, the evidence showed without dispute, and the jury clearly understood, that defendant was not the technical legal owner, if that was the only meaning intended to be conveyed by the charge.
Charge K was properly refused as misleading, since it was a question for the jury whether plaintiff had an opportunity to safely use the fire escape as it was constructed and located, or whether his omission to do so under the circumstances was negligent. His failure to attempt to use it may have been due to its inaccessibility by reason of improper location or construction, and this aspect of the matter is entirely ignored by the charge.
Charge L was properly refused as irrelevant to the issues made by the pleadings, and because courts are not required to give instructions that there is or is not evidence of a certain fact.
Charge M was properly refused because the statute and ordinance may apply to tenants as well as owners.
Written charge 5, given for plaintiff, was properly given under the facts in evidence, and is not subject to the criticisms offered. If misleading in tendency, explanatory charges should have been requested.
The point is urged by appellant that no proof was made that the ordinance was in force at the time of the fire. Counsel is mistaken in this, as the testimony of the witness Matthews shows.
Conceding, without deciding, that a defendant's breach of duty imposed by express command of a statute or ordinance may be met by a plea of plaintiff's assumption of the risk (as to which the authorities are in sharp conflict, 26 Cyc. 1180, II), yet plea 6 is defective in not alleging that plaintiff knew, or should have known, or appreciated, the risks of remaining in defendant's employment under the conditions described. It is not enough that plaintiff knew of the insufficiency of the fire escape, as to its kind or location. He did not as a matter of law assume the risk of being injured by a fire in the building, unless he appreciated or had notice of the danger to him resulting from the inefficiency of the fire escape. West Pratt Coal Co. v. Andrews, 150 Ala. 368, 375, 43 So. 348; So. Ry. Co. v. McGowan, 149 Ala. 440, 43 So. 378; Bryant v. A. G. S. R. R. Co., 155 Ala. 368, 46 So. 484.
For the single error noted above the judgment will be reversed and the cause remanded.
ANDERSON, C. J., and McCLELLAN, MAYFIELD, SAYRE, and THOMAS, JJ., concur. SOMERVILLE and GARDNER, JJ., dissent.
My concurrence in the conclusion prevailing on this appeal is explained, and, in a measure, qualified, in the writer's concurring opinion filed in B. R., L. P. Co. v. Buff.