Barfoot v. White Star Line

136 N.W. 437, 170 Mich. 349, 1912 Mich. LEXIS 827

• Court: Michigan Supreme Court
• Decided: May 31, 1912
• Docket: Docket No. 15
• Status: Published

Opinion

Ostrander, J.

(after stating the facts). Contentions 1 and 2 may be considered together. An automatic gate at the entrance to an elevator shaft serves the purpose of preventing entrance into the shaft when the elevator is not at the particular floor and of permitting entrance when it is there. It is not designed and used for the single purpose of keeping people not intending to use the elevator from falling down the shaft, but for the safety as well of persons desiring to use the elevator. See Murphy v. Veneer Works, 142 Mich. 677, 680, 681 (106 N. W. 211). It is not conclusive of the question of plaintiff’s negligence that he used care and, as he believed, sufficient care to ascertain that the elevator was where, within his experience, the open gate indicated it to be, although he knew the gate did not operate automatically. Assuming that the statute was enacted for his benefit and that the statute duty is imposed upon defendant, a breach of the statute duty is made out which, concurring with other circumstances, caused the plaintiff’s injury. Whether, under all the circumstances, plaintiff was careless was a question for the jury.

Plaintiff does not claim that defendant owed him any duty in the premises unless the statute duty to provide automatic gates to the elevator was imposed for his benefit. It is important to understand the scope of defendant’s contention. It contends that the remedy for a violation of a statutory obligation is on the part of the public and is penal in its nature. It is said in argument that—

“ In some instances individuals have been given a remedy against a person for the violation of a statutory duty, but this has been where the duty imposed by the statute or ordinance was also a common-law duty.”

And further:

“ It is only in special instances, and the case at bar is not one of them, that persons are permitted to recover damages because of a violation of a duty imposed upon them solely by statute.' The most common illustration of such a principle is found in actions brought by a servant against his master for injuries that resulted from the failure to provide certain safety appliances required by statute. This principle would be applicable in the case at bar if the Colonial Manufacturing Company were the defendant and was sued by one of its employés for an accident such as sustained by Barfoot, but it is not applicable where the defendant is the owner of the premises and not in possession, and the plaintiff and defendant have no contract relations.”

I do not understand by this language that it is claimed that if the statute imposes upon the owner of the building the duty to provide automatic gates for elevators, and if the duty is imposed for the benefit of a class of persons who may have their remedy, if injured, upon the statute, that plaintiff is not one of the class of persons entitled to the remedy. The point that he is in no event one for whose benefit a thing was enacted is not presented in the defendant’s requests to charge, is not adverted to in the charge which was given, and is not debated in the brief for the appellee. Therefore I assume, for the purposes of this opinion, that it is conceded, not disputed, that if the defendant owed a duty to provide automatic gates at the elevator opening, and for its failure there is a private remedy on the statute, plaintiff may have the remedy.

The preliminary question, namely, whether there was testimony tending to prove that defendant was owner of the building, must be answered favorably to plaintiff whether we do or do not consider the letter of January 4, 1909, admissible in evidence. I think the letter was properly admitted, not for the purpose of determining the duty of defendant to plaintiff, or as án admission that the statute duty and obligation rested upon it, but to show defendant’s assertion of dominion over the building. In admitting it over an objection that it was incompetent and immaterial, I think the court committed no error, although the reason stated by the court for its admission was the one “ of showing notice on the part of the defendant regarding this automatic gate.” It is said in argument that the testimony tends no more to prove that defendant was owner than that it was agent of the owner, or a lessee, and that speculation respecting the precise character of defendant’s dominion was, and should not have been, permitted. Defendant was charged as owner of the building, and the testimony admitted tended to prove that it was owner.

Whether the statute duty is imposed upon an owner of premises who does not occupy them but has leased them to others is a question depending for its answer upon the meaning to be given to the statute. The statute of Westminster (1 Stat. p. 213 [13th Edw. I, chap. 50]), gives a remedy by action on the case to all who are aggrieved by the neglect of any duty created by statute. In 1 Comyns’s Digest, Action upon Statute (F) it is laid down that—

“ In every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.”

See Couch v. Steel, 3 El. & B. 402.

This familiar doctrine is amplified by Mr. Justice Cooley in his work on Torts (1st Ed.), pp. 653, 654, in the following language and a copious reference to adjudicated cases:

“Where the statute imposes a new duty, where none existed before, and gives a specific remedy for its violation, the presumption is that this remedy was meant to be exclusive, and the party complaining of a breach is confined to it. It is upon this ground that it has been many times held that when the right to exact tolls has been conferred upon a corporation, and a summary remedy given for their collection, the corporation must find in this summary remedy its sole redress when an attempt is made to evade payment. So if performance of the duty is enjoined under penalty, the, recovery of this penalty is in general the sole remedy, even when it is not made payable to the party injured. But the rule is not without its, exceptions ; for if a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected. And if the duty imposed is obviously meant to be a duty to the public, and also to individuals, and the penalty is made payable to the state or to an informer, the right of an individual injured to maintain an action on the case for a breach of the duty owing to him will be unquestionable.

“ There are always questions of difficulty respecting the remedy when a statute imposes a duty as a regulation of police, without in terms pointing out what shall be the rights on the one side and the liabilities on the other, if the duty is neglected. Is the duty imposed on public grounds exclusively, and if not, what persons or class of persons are within its intended protection ? These are the problems which such statutes usually present.”

The general doctrine has been many times approved by this court (Syneszewski v. Schmidt, 153 Mich. 438 [116 N. W. 1107]; Layzell v. Coal Co., 156 Mich. 268 (117 N. W. 179, 120 N. W. 996]; Murphy v. Veneer Works, supra; Kleinfelt v. Coal Co., 156 Mich,. 473 [121 N. W. , 132 Am. St. Rep. 532]) and in respect to provisions of former statutes now incorporated in the very act relied upon by the plaintiff. It must be held that section 12 of the act imposes upon certain persons a duty which, but for the statute, would not exist for the benefit, not only of the public, but of a class of persons liable to be injured by its violation.

As has been stated, I assume in this opinion, but do not decide, that plaintiff is one of the class for whose benefit a thing was enacted by the statute. The question- is whether defendant, owner of the building, is the owner referred to in section 12. It is to be regretted that in framing a statute which attempts to impose upon various persons duties of such importance, and which provides so considerable penalties for violations of the duties, more precise language is not employed. The identity of the person or persons liable to be fined and imprisoned on account of the omission to do a particular thing ought not to be left in doubt by the law imposing the penalty. Comparison of the various provisions of the law, one with another, affords us little aid. There is, however, this distinct provision found in section 23, namely, that factory inspectors shall have power to order all improvements “ herein specified” such as the repairing of elevators, the installment of wash and dressing rooms and water-closets, and necessary orders concerning the same shall be served on the owner of the building or premises. The section concludes with the proviso:

“ That whenever the owner of such buildings or premises as mentioned in this act be a nonresident of this State said order may be made on his resident agent or the tenant of such buildings or premises. If the tenant be required to make such improvements he may deduct the cost thereof from the amount of rent for use of such buildings or premises.”

No power is given to the factory inspector to order the construction of an elevator. Section 12 confers upon him power to inspect cables, gearing, or other apparatus of elevators in manufacturing establishments, workshops, hotels, and stores at least once in each year and to require that the same be left in a safe condition, to condemn an unsafe elevator and stop its operation. The extent of the power thus conferred need not be considered. There is found in section 12, when read with section 23, support for the conclusion that the duties imposed by section 12 rest upon the owner of the building. Support for the same conclusion is found in the fact that an elevator as a structure is usually, if not always, an integral part of a building, like a passageway and a staircase.. An elevator cannot be installed in a completed building without a considerable disturbance of the structure of the building itself. In a new building it is a part of the plan of the building itself — a permanent thing. I construe the statute as imposing the duty upon the owner of the building, and regard the words “manufacturing establishment ” as meaning, in the particular section we are considering, premises in or on which a manufacturing business is conducted. With this construction, the words “ agent” and “lessee ” have a reasonable meaning.

There are statutes in other States similar in character but distinctly different in terms. In Pennsylvania two decisions (Schott v. Harvey, 105 Pa. 222 [51 Am. Rep. 201], and Keely v. O’Conner, 106 Pa. 321) involved the .meaning of the act of June 11, 1879 (P. L. 128), entitled: “An act to provide for the better security of life and limb in cases of fire in hotels and other buildings.” It provided that every storehouse, factory, manufactory, or workshop of any kind in which employés or operatives are usually employed at work in the third or any higher story should be provided with a permanent, safe, external means of escape therefrom in case of fire, and it was made the duty of the owners, superintendents, or managers thereof to provide such fire escape. In the first case, one of first impression, there was a suit brought upon the statute against the owner of the land and building who was not in possession but had leased the premises to the factory owner. It was held:

“A number of authorities were cited showing the construction which has been placed upon the word ‘ owner ’ both by the legislature and the courts. But the meaning of the word depends in a great measure 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 glimmering of- light upon the question. The term ‘owner ’ is undoubtedly broad enough to cover either view of the case. A tenant for years, a tenant for life, and a remainderman in fee is each an owner. So there may be a legal and an equitable estate; the trustee and the cestui que trust are both owners. When, therefore, the legislature used" a term of such varied meaning we must presume they intended such an owner as is in the possession and occupancy of the premises, who has the immediate dominion and control over it, and the manner of whose use of it makes a fire escape necessary. Had the owner in fee been intended, it was easy to have said so. This view meets all the requirements of the act. It places the responsibility where it properly belongs, upon the person in the possession and occupancy of the property as owner for the time being, and the nature of whose business renders the erection of fire escapes necessary to protect the lives of his employés.”

In the second case the same rule was applied. It is said in the brief that, following these decisions, the legislature of Pennsylvania amended the statute of 1879 so as to impose the duty in question upon the “owner or owners in fee or for lifethus creating a certain responsibility.

In Lee v. Smith, 42 Ohio, 458 (51 Am. Rep. 839), the provision of the statute in question imposed upon “any owner or agent for owner of any factory,, workshop, tenement house, * * * ” the duty to provide a fire escape. The case was heard on demurrer; the court concluding that the words “ owner of any factory ” did not mean “ owner of the building” when the owner of the building and the owner of the business carried on therein were not the same person. These cases are relied upon by defendant. _In Illinois an act relative to fire escapes for buildings imposed a duty to provide for them upon the owner or owners, trustees, lessees, or occupant of any building not so provided, and required that all buildings of a certain height thereafter erected for certain purposes should be provided with fire escapes before their completion. The court construed the act as imposing the duty upon the owner of the building whether in or out of possession. Landgraf v. Kuh, 188 Ill. 484 (59 N. E. 501). This ruling was affirmed in Arms v. Ayer, 192 Ill. 601 (61 N. E. 851, 58 L. R. A. 277, 85 Am. St. Rep. 357). A similar statute in Missouri imposed a duty to provide fire escapes upon “the owner, proprietor, lessee, or keeper of any hotel,” etc., and it was held that both the owner and lessee were liable for injuries to a lodger in a leased hotel due to a failure to construct the escapes; the initial duty being on the owner. Yall v. Snow, 201 Mo. 511 (100 S. W. 1, 10 L. R. A. [N. S.] 177, 119 Am. St. Rep. 781, 9 Am. & Eng. Ann. Cas. 1161).

In Minnesota a statute provides that all hoistways, hatchways, elevator wells, and wheel holes in factories, etc., shall be securely fenced, inclosed, etc. The duty was imposed in terms upon no one. Suit was brought by an employé of the lessee of a building against the owner of the building for damages for injuries suffered because of a violation of the statute. It was held that the duty rested; in the first instance, upon the owner of the building; some consideration apparently being given to the fact that the owner turned the building over to the lessee with the unguarded opening. Tvedt v. Wheeler, 70 Minn. 161 (72 N. W. 1062). See, also, McLaughlin v. Armfield, 58 Hun (N. Y.), 376 (12 N. Y. Supp. 164); Welker v. Brewing Ass’n, 103 Minn. 189 (114 N. W. 745). Some of these decisions, and others, are authority for the proposition that, if the statute had named no one to perform the duty and had in general terms required the elevators to have automatic gates, the initial duty in the premises would rest upon the owner of the building. The use in our statute of the words “ owner ” or “lessee ” may be considered as the legislative designation of persons upon whom the duty would in any event devolve; upon the owner first, upon both or either at the election of the person injured. The court was not in error in ruling that upon the owner of the building was imposed the duty to provide automatic gates for the elevator.

Counsel for plaintiff stated in the presence of the jury, in making his opening statement, that he would prove that after plaintiff was injured defendant painted the elevator shaft and provided an automatic gate. The statement was excepted to, and counsel for plaintiff stated that it would not be proper as bearing upon the question of defendant’s negligence, but would be offered to prove where the legal duty rested. The testimony was not admissible. The defendant had promised to paint the elevator shaft and provide an automatic gate, but had delayed. The testimony was not received when it was offered, and, in view of the conclusions above announced, defendant was not prejudiced by the statement or by the offer of corresponding testimony.

It is complained that plaintiff showed his injured arm to the jury. Considerable discretion is lodged with the trial judge in regard to such matter, and I cannot think that it was not properly exercised in this case.

The complaint that defendant was not permitted to show that there was no light at the elevator shaft, and the general condition with respect to light, and the absence of light, is without foundation. The particular question upon which the exception is based is, “ If you had had a good, bright light, you would have seen it (the elevator) was not there ? ” The question called for no fact, but at best for an expression of belief.

No prejudicial error is made out, and the judgment is therefore affirmed.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.