How the Law Helps the Fireman

How the Law Helps the Fireman

Some Recent Cases Which Apply to Fire Departments and Fire Fighting—Important Decisions of Higher Courts

FOLLOWING are some decisions of the justices of higher courts upon a number of important matters of interest to fire departments throughout the country. These cover a number of subjects that will be found helpful to chiefs and others:

Records of Fire Marshal’s Investigations Not Open to Public Inspection

Generally speaking, state fire marshal laws impose upon the state fire marshal the duty of collecting statistics regarding the origin of fires. To this end, the chiefs of fire departments, the mayors of cities, the presidents of incorporated villages, and the town clerk of every township are required to investigate the cause, origin and circumstance of every fire occurring within their respective municipalities, and furnish the proper state fire official with a written report of all the facts relating to the cause and origin of the fire.

When deemed necessary, the chief fire official of some states, by himself or deputies, may conduct a further investigation and examine on oath, all persons supposed to be cognizant of any facts, or who have any means of knowledge in relation to the origin of the fire, cause the arrest of any person believed to be guilty of the crime of arson in connection therewith, and furnish the proper prosecuting attorney with all such evidence.

That the records of these investigations are not subject to public inspection is substantiated by the recent case of State vs. Freede, 223 N. W. 861. In this case the owner of a dwelling, which was destroyed by fire, sought to obtain information of the nature of the reports rendered by the fire marshal, because the former contemplated suing an insurance company for payment of an insurance policy and he was suspicious that the report may contain information to his detriment regarding the origin of the fire. It is important to know that the Court held the property owner not entitled to inspect the records stating important law, as follows :

“The various reports correspondence, and examinations fade with reference to any particular fire carry no public interest, but statistics covering all fires, showing their causes, the facts and circumstances under which they originate, have an educational value, and this is what the Legislature intended to make available to the public. It is well known that this law was passed upon the request of the insurance companies and that they are especially assessed for the funds necessary to administer the act. The manifest purpose of the law is to apprehend and punish those who may be guilty of the crime of arson, and to discourage the burning of property for the purpose of recovering the Insurance thereon. If the testimony of all persons taken in investigations conducted by the state fire marshal of his deputies, for the purpose of discovering the origin of fires, were to be made a matter of public record, the attainment of the purposes of the law would be greatly embarrassed.

One accused of crime enjoys no right to an Inspection of evidence relied upon by the public authorities for his conviction.

In view of these considerations, the legislative purpose to permit public inspection of papers and documents, such as relator seeks to inspect, should plainly appear.”

Fireman Entitled to $10,000 Damages for Injury by Train

The law is well established that a railway company is liable in damages for injuries resulting from its negligence in failing to provide a watchman or flagman at crossings in violation of a city ordinance. Moreover, temporary absence of the flagman front his post is negligence on the part of the railway company.

For example, in Webb vs. Vicksburg, S. & P. Ry. Co., 119 So. 720, it was shown that a fire ladder truck was struck by a train seriously injuring the tillerman on the truck. In fact the evidence established that he had sustained a fracture of the skull, which caused him to be confined in a hospital for about 30 days, and had resulted in an impairment of his power to read and to speak to such an extent as to incapacitate him from returning to his employment, in which he received $1,500 per year.

The driver of the fire truck testified that, whilst returning from a fire, he approached the crossing at a very moderate rate of speed: that there was no flagman on the crossing: that he saw no moving car until just as he reached the track, when it was too late to stop or back off with his heavy ladder truck, 50 feet in length; that he then speeded up and swerved aside to avoid the on-coming car, which he did avoid, but in doing so the rear end of his truck struck the telephone pole and was wrecked.

In view of this testimony the Court held the fireman entitled to $10,000 damages because the city ordinance requiring the railway company to keep a flagman at the crossing had been violated. This Court said:

“Our conclusion from the evidence as a whole is that the bagman was not at his post, and that this, and not any recklessness on the part of the driver of the truck, was the direct cause of the accident. Since the city ordinance required that a flagman be at the croealngr the driver of the truck had the right to assume, when no flgman appeared, that no train wan approaching.”

THE following legal questions are treated in this article: “Records of Fire Marshal’s Investigations not Open to Public Inspection”; “Salary of Fireman Held Exempt from Garnishment”; “Fireman Killed by Burned Electric Wire”; “Fireman Entitled to $10,000 Damages for Injury by Train”; “Distinction between ‘Pension’ and ‘Sick Benefit’ ”; “Meaning of Term of ‘Shall have been in City Service,’ ” and “Duty of Property Owner to Prevent Fires.”

Salary of Fireman Held Exempt from Garnishment

In many instances, firemen, in order to obtain ready cash, assign their future wages to loan companies, and the creditors endeavor to institute garnishment proceedings to collect a portion of the former’s salary.

Also, many states have enacted laws exempting the salaries of public officers from garnishment process.

Therefore, the recent case of Industrial Discount Co. vs. Ccherer, 119 So. 295, imparts unusually important legal information. The question presented the Court in the case was whether, under existing laws, the salary of a fireman, employed by the fire department in the city of New Orleans, is exempt from garnishment process.

The argument in favor of the exemption was that a fireman is a public officer, and that a state law exempts salaries of public officers from garnishment.

It is important to know that the higher Court in holding the fireman a public officer, whose salary is exempt from any legal attachment proceedings, said:

“The principle upon which a salary is paid to an officer is not that of a contract, or that of the laborer being worthy of his hire, for the citizen owes his services free to the state in the proportion in which the state stands in need of them. But it is that the man must live, and that, if service is expected of him, he must be supplied with the means of livelihood. The law which prescribes the mode and manner in which the officer shall be thus supplied is one beyond the control of the officer, which is not within his power to nullify by private contract with one of his fellows. . . . To

deal with the matter as if the officer had a contractual right which he may bargain away is simply to misconceive the situation. The public In its own interest makes a certain regulation, and the officer is powerless to change it.”

Fireman Killed by Burned Electric Wire

Generally speaking, an electric company is required by the law to exercise care to cut off the current from electric wires in close proximity to a fire.

The degree of care which will satisfy this requirement varies with the danger which will be incurred by its negligence to do so, and must be commensurate with the danger involved. According to numerous higher Court decisions, where the wires maintained by a company are designed to carry a strong and powerful current of electricity, so that persons coming in contact with them are certain to be seriously injured or killed, the law imposes upon the company the duty of exercising the utmost care and prudence to prevent such injury. This is especially true of high tension wires suspended over the streets of cities or towns.

For instance, in the recent case of Osborne vs. Tennessee Electric Power Co., 12 S. W. (2nd) 947, it was disclosed that a municipal company was notified that a burning building endangered its high tension wire and that the current should he shut off immediately. The company’s employees did not arrive for one hour, and in the meantime one of the wires burned in two and killed a fireman.

The latter’s dependents sued the electric company for damages. It is interesting to observe that the lower court held the electric company not liable but the higher Court reversed this verdict, saying:

“Where an electric company receives notice that its wire is down in the street it should instantly turn the current off and keep it off till proper precautions are taken to prevent danger to persons or property from the fallen wire, and until it is ascertained that it is safe to turn it on.”

Distinction between “Pension” and “Sick Benefit”

In many instances various laws regulating payment of pensions and benefits to disabled and sick firemen are quite conflicting.

Therefore, the recent case of State vs. Barry, 272 Pac. 677, should present unusually valuable information on this subject.

(Continued on page 428)

How the Law Helps the Fireman

(Continued from page 404)

The fads of this case are that a man named Barry was an active member of the paid fire department of a municipality and, also, a member in good standing of the fire department relief association of that city.

In the articles of incorporation of the association, it is provided that, whenever any active member of the association in good standing becomes incapacitated from performing his duties as an active fireman, by reason of sickness or accident, he shall be paid from the firemen’s disability fund his regular monthly, salary.

On April 1, Barry contracted an illness in the line of his duties as fireman, and was compelled to remain away from his work from that day until June 23rd. During that period his salary amounted to $415. He presented a claim for that amount to the board of trustees of the association, which rejected it. He thereupon appealed to the association. Upon hearing of the appeal, a resolution was passed in effect directing that it be ascertained whether the city would pay the claim, with a proviso that, if the city would not, then the claim should be paid in full out of the firemen’s disability fund. The city refused to pay, and the president and secretary refused to sign a warrant in Barry’s favor, authorizing payment of the $415, in view of a conflicting law, which authorized payment of a service pension equal to one-half the salary of any fireman who shall have “become maimed or disabled for life in line of duty, or who has contracted sickness in line of duty.”

In holding the fireman entitled to his full salary, the Court said:

“Each of these two laws covers some of the same ground covered by the other. In other words, in certain respects they are duplicates. This is one illustration of the bungling manner in which the subject has been legislated upon.

A service pension granted to a member who by reason of service has become entitled thereto is one thing, and a benefit or allowance to the member who has contracted sickness in the line of duty is quite another thing. We think it is likewise clear that the provision that the service pension shall not exceed one-half of the monthly salary last received by the member has no application to the benefit allowed to a member who has contracted sickness in the line of duty.”

Meaning of Term of “Shall Have Been in City Service”

In McCarthy vs. Civil Service Commission of City and County of San Francisco, 273 Pac. 98, it was shown that a fireman was employed in municipal service from September, 1917, to March, 1921, except while in the army. He returned to service as hosentan in the fire department in August, 1926, and contended that he was entitled to additional credits in promotional examinations, although his service had not been continuous under the following law:

“In the case of promotional examinations a credit of three points shall be allowed to veterans who shall have been in the city and county service prior to July 1, 1920.”

It is interesting to observe that the Court held the fireman entitled to the additional credits, saying:

“It is the contention of the appellant (city) that the expression ‘shall have been’ should be interpreted to apply only to such veterans who had been in the city service prior to July 1, 1920, and who had remained continuously in such service thereafter until the time of the promotional examinations.

New Fire House in Service in Roswell, N. M. A fire station manned by twelve men and housing: three pieces of apparatus, has been placed in service in Roswell, N. M. The house is one story high, constructed of concrete. The total cost is $12,000. There are six individual rooms with built-in closets. There is a recreation room in the rear of the apparatus floor. A basement was excavated for a heating plant.

We must bear in mind that the words ‘shall have been’ are applied to past %s well as to future conditions.

in a strictly grammatical sense the phrase, standing alone, conveys the idea of futurity. . . . The phrase or

its equivalent is frequently found in statutes and constitutions and the cases show that it is applied to past as well as to future acts or conditions.”

Duty of Property Owner to Prevent Fires

While it is true the owner of private buildings is not compelled by law to exercise any particular degree of care to safeguard his property against destruction by fire, yet, it is important to know that various other property owners are bound to exercise care to prevent fires otherwise they arc liable in damages.

For instance, a warehouseman is liable in damages for the loss of stored goods as a result of his negligence, irrespective of the fact that a clause in the warehouse receipt, signed by the owner of the goods, relieves the warehouseman from liability.

For example, in the recent case of Benz vs. Monarch Transfer & Storage Co., 9 S. W. (2nd) 822, it was disclosed that an owner delivered to a warehouse a quantity of goods for storage. A warehouse receipt was given, in which it was agreed that the warehouseman should not be liable for fire, or any other cause beyoung the warehouse company’s control. Later the owner of the merchandise was informed that a fire had mysteriously started in the warehouse and had destroyed his goods, he sued the warehouseman for damages.

The warehouseman argued that he could not be held liable because the warehouse receipt clearly relieved him from responsibility for the loss of merchandise by fire, and also because neither himself nor employes negligently caused the fire.

However, the jury carefully considered all details of the testimony and held the warehouseman liable. The higher Court sustained this verdict, saying:

“Here, we have a building of concrete, divided into compartments, the building itself fireproof, no one but the employes having access to the storage rooms and still a fire breaking out. . . We think that if defendant (ware-

houseman) had not been guilty of negligence, a fire would not have occurred in this compartment.”

Still another common source of litigation involving warehousemen is where the warehouse and its contents are destroyed by fire at night-time.

This phase of the law was discussed in the case of American Transfer & Storage Co. vs. Rush, 8 S. W. (2nd) 756. Here it was disclosed that the warehouseman did not provide a capable night watchman and modern fire extinguishment equipment. The result of this testimony was that the jury held the warehouseman negligent and therefore liable for the loss of the stored goods.

It is also important to know that any person who agrees to keep property, merchandise, or any other commodity, for another, is bound to exercise the same degree of care to prevent loss or injury to the property as a result of fire.

Moreover, any firm or person who holds himself out to the public as being ready and willing to accept merchandise is legally a common carrier and liable as an insurer against loss or injury to goods by fire.

For instance, the law with respect to the liability of a common carrier applies to any firm or person such as an expressman, a railroad, a motor trudk transportation company, an express company, a storage or warehouse company, and the like.

In fact, the carrier is liable for all loss resulting from its own negligence, and against all other loss or damages, except such as may be caused by the act of God, a public enemy of the United States, the act of the shipper, or the inherent nature of the goods. Moreover, although the damage is due to one of these causes, the carrier still is liable for any damage which may result by its failure to exercise reasonable care to protect the shipment from such loss or damage.

Waukesha Engine Issues “Insurance Policy”—In an effort to make the purchaser better acquainted with the mechanism of this engine which many manufacturers install in fire apparatus, the Waukesha Motor Company has issued a “Waukesha Engine Insurance Policy.” It consists of a booklet in an envelope similar to the kind used for insurance policies. The booklet tells what to do and what not to do to get the most from the engines.

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