Maker v. Slater Mill and Power Co.

23 A. 63, 15 R.I. 112, 1885 R.I. LEXIS 59

Opinion

Stiness, J.

Plaintiff sues under Pub. Stat. R. I. cap. 204, § 21, 1 claiming that be has suffered an injury to bis person by tbe commission of a “ crime or offence” on tbe part of tbe defendant. Tbe crime or offence consists in an alleged violation of tbe building act, so called, Pub. Laws R. I. cap. 688, of April 12, 1878. Since tbe decision of tbe court sustaining a demurrer to tbe declaration in Baker v. Slater Mill Power Co. 14 R. I. 531, complaint has been made against the defendant, pursuant to Pub. Stat. R. I. cap. 204, § 22, 1 and process has issued thereon, which is duly averred in this declaration, but there is no averment of service of such process, or of any proceedings thereon. A demurrer is filed to this declaration. Several grounds have been urged in support of tbe demurrer which need not now be considered ; e. g. that tbe statute giving a right of action for injury sustained “by tbe commission of any crime or offence” does not include a mere neglect of duty, or omission to comply with tbe requirements of law; that such a statute does not apply to a plaintiff to whom tbe defendant owed no duty outside of statutory requirements ; that the terms “ crime or offence ” do not apply to a violation of the act in question, upon the ground that it is not a public statute, but a local police regulation; that the injury, for which an action can be sustained, must be the immediate and not the consequential result of the omission charged. Assuming all these points in favor of the plaintiff, the fundamental question remains, whether the defendant’s omission to provide its building with fire-escapes or stairways, as required by cap. 688, is a “crime or offence.” If, under the act, an owner of a building is not criminally liable for neglect to comply with its requirements, the foundation of the plaintiff’s action fails. The penal provision in the act is in the general terms of § 37, “ Any person violating any provision of this act shall be fined,” etc. Our inquiry, then, is whether an owner, complained of for neglecting to provide fire-escapes or stairways, could be found guilty under the provisions of the act. The requirements of the act are minute and manifold. Some clearly pertain to the owner, some tó the contractor or builder, some to tenants, and some to other persons, while in many cases it is by no means clear to whom the duty imposed by the act belongs. The duty to provide fire-escapes or stairways is explicit. The section reads as follows: — .

“ Sect. 23. Every building already built or hereafter to be erected, in which twenty-five or more operatives are employed in any of the stories above the second story, shall be provided with proper and sufficient strong and durable metallic fire-escapes or stairways, constructed as required in this act, unless exempted therefrom by the inspector of buildings, which shall be kept in good repair by the owner of such building, and no person shall at any time place any incumbrance upon any of such fire-escapes.”

But upon whom does the duty rest, when is it to be performed, and what facts are necessary to constitute a violation of the duty ?

The plaintiff claims that the reasonable construction of the act puts the duty upon the owner. He argues that, as there is an alternative between fire-escapes or stairways, the duty must be upon one and the same person, and that person the owner, because only he could provide stairways. We do not see that this is necessarily so. Of course, permanent or structural improvements are ordinarily made by an owner; but if a lessee takes a building as it stands and then lets into it twenty-five or more operatives, it is difficult to see why by his act a burden should be cast upon the owner, which may not have been expected or provided for when the contract was made. It is said that no one but the owner would have thé right to put fire-escapes on a building; but, on the other hand, if a building was under lease, what right would the owner have to enter and interfere with the lessee’s occupation by erecting stairways, such as are required by the act ? Moreover, if the duty is solely upon the owner, why should the act particularly specify that he should keep the stairways or escapes in repair ? The plaintiff further urges that the defendant in this case is liable, because it is both the owner and the party in control of the building. Without control over the number of persons which tenants may employ, the same unexpected burden might suddenly be cast upon the person in control of a building by the act of a tenant. Under the construction claimed, such person would be made criminally liable by the act of another person, which he had no power to prevent. But if an owner is to be held responsible by reason of his control, then it follows that á lessee must be held responsible when he is in control; and so the question recurs, Whose is the duty ? In most cases it would not be an unreasonable construction to say that the duty of complying with a statute is upon the one who creates, and has the power to prevent, the necessity of complying with it. Under the present act this might be the owner or tenant, and the very alternative which is given is possibly significant. It may have been thought that owners could make the permanent, structural provision of stairways, and that lessees or tenants, if they create the necessity, could provide the light, temporary, and less expensive fire-escapes. A more troublesome question arises in the case of a building let out to tenants, when no one of them employs twenty-five persons, but when, all together, they exceed that number, thus bringing the building within the law in this respect. Undoubtedly it would be most natural to look to the owner for the provision, but the statute does not say whose the duty is, nor whose the responsibility for neglect. It is one of the omissions that frequently occur in legislation, but an omission that we do not think we can cure by construction. Suppose, how ever, we assume that the duty is upon the owner, having control of a building, the problem is by no means solved. The act does not say when or under what circumstances the duty is to be performed. The act went into effect in ten days after its passage, and it does not seem probable that it was intended to make all owners of buildings, already built, immediately responsible for its multitudinous provisions and liable to its penalties. Immediate compliance with the law in all respects would probably have necessitated changes in many, perhaps nearly all, of the buildings then built. But if the liability of an owner did not attach at once, when did it attach? If there were, nothing in the act to indicate the contrary, all its provisions would take effect at the same time. But we think there are indications that the act did not contemplate an immediate compliance with reference to existing buildings. The inspector of buildings is charged with the enforcement of the act, but in the very section in question is given authority to exempt buildings from its requirements. Section 33 provides that, upon complaint, he shall examine buildings already erected, including any workshop having employees on any story above second story, and require such building to be provided with proper and sufficient fire-escapes, stairways, and exits, constructed as described in the act. This section must relate to buildings where there are more than twenty-five employees, for no others are required to have fire-escapes, and, taken in connection with the authority to exempt, indicates that the requirement is to be discretionary with the inspector, dependent, perhaps, upon his judgment of danger in a particular case, or of other equivalent provisions for safety. It also indicates that the time for requiring the fire-escapes is when the inspector requires them. In regard to “ buildings for public assembly, already built, and also boiler-houses and rooms and their heating apparatus now built,” an express discretion is given to the inspector, namely : “ If in his judgment the safety of the public requires it, he shall require that the same be made to conform to the provisions of this act.” It is hardly probable that in respect to fire-escapes the act was intended to be more restrictive. If this is so, an owner would not be in default until after examination and notice by the inspector. To construe the provision otherwise, the inspector would be obliged to require only what the law itself had already required, and that, too, without pointing out how or from whom he should require it. In Willy v. Mulledy, 78 N. Y. 310, the court said the defendant “ was not permitted to wait until he should be directed to provide ” a fire-escape by the commissioners. “ He was bound to do it in such way as they should direct and approve, and it was for him to procure their direction and approval.” But under the law in that case there was no discretion in the commissioners whether to require a fire-escape or not. There was no power of exemption. The owner was bound to provide one in any event; the commissioners were simply to direct and approve the kind to be used. But under that act no penalty was to be imposed until after notice by the commissioners. The case was not based upon the “ commission of a crime or offence,” but upon a negligence of duty to the plaintiff as tenant of the defendant. With reference to our statute, it has already been decided in Grant v. Slater Mill Power Co. 14 R. I. 380, that the act does not create a duty between an owner and the employees of his tenant, such as to give them a right of action for neglect. In Parker v. Barnard, 135 Mass. 116, it was held that the plaintiff, having a license to enter a building, could maintain an action for neglect to protect the elevator well as required by statute. The court conclude the opinion, however, by saying: “We have not considered the respective duties of the owners and of the occupants of the building as to the protection of the elevator well. Upon this inquiry the case is not before us, and the facts are not reported.”

There are many peculiarities and difficulties in the act as it stands, some of which have already been noticed by the court in previous cases; but upon this fundamental point we think it sufficiently appears that the provisions in regard to fire-escapes and stairways are too indefinite and uncertain to impose a criminal liability upon an owner of a building for not providing one or the other before the inspector required it. Penal statutes must be strictly construed, and’a duty must be clearly imposed upon a particular person before we can say that he has violated the law by neglecting it.

We do not think the plaintiff states a case against the defendant under the law, and therefore the demurrer to the declaration must be sustained. Demurrer sustained.

1 Cap. 204, §§ 21, 22, are as follows: —

“ Sect. 21. Whenever any person shall suffer any injury to his person, reputation, or estate by the commission of any crime or offence, he may recover his damages for such injury, either in an action of trespass or in an action of the case against the offender.

“ Sect. 22. No such action, except as provided in the five sections preceding the last, shall be commenced for such injury until after complaint has been made to some proper magistrate for such crime or offence, and process issue thereon against the offender, excepting only those cases in which such actions may now be maintained at common law; and whenever any person shall be convicted of larceny, he shall be liable to the owner of the money or articles taken for twice the value thereof, unless the same be restored, and for the value thereof in case of restoration.”