When Can a City Prevent Construction of Fire Hazards?

When Can a City Prevent Construction of Fire Hazards?

An Important Higher Court Decision on this Subject— Other Legal Matters of Interest to the Fire Chief

Attorney-at-Law

GENERALLY speaking, a municipality may enact reasonable laws restricting the construction of buildings or other things which are fire hazards. This is particularly true where it is shown that fire department officials approve the ordinance and its application.

For illustration, in Cecil vs. Toenjes, 228 N. W. 874, it was disclosed that a property owner made application to a municipal building inspector for a license to store inflammable liquids underground in connection with the business of a gasoline filling station. The building inspector denied the application because the city council would not approve it.

At the time, there was in force an ordinance regulating the storage of inflammable liquids and which prescribed certain kinds of underground tanks. However, the ordinance also specified that “the issuing of or refusal of a permit to install or locate such tanks shall be within the sound discretion of the City Council.”

The property owner filed suit asking the Court to compel the council to grant the permit on the following three grounds: First, that the ordinance in effect is confiscatory of his property, and hence is unconstitutional; and, second, that the ordinance is unreasonable and so indefinite and uncertain as to permit arbitrariness and oppression in its operation; and, the action of the building inspector and city council was in fact arbitrary, oppressive, and captious.

After carefully considering the facts of the case the higher Court held the city council within its rights in refusing to grant the permit to construct the filling station, stating the following important law:

“Contained within the legislation are elements generally known as police power. Such power had its source in the state, and by the foregoing statute was delegated to the municipality. . . . Armed with that power, the municipality may, under proper circumstances, regulate automobile filling stations and the explosive liquids kept for use in connection therewith.”

Also, in Des Moines vs. Manhattan Company, 193 Iowa, 1096, the testimony indicated that a gasoline filling station at a desired location increased the fire hazard, and the building inspector, by authority of an ordinance, refused to issue a permit for its erection.

The property owner instituted legal proceedings, contending that the ordinance was void. However, the Court upheld its validity, and said:

“The power to designate the subject of police regulation rests in the state alone, and if a given statute is not clearly repugnant to some constitutional guaranty, the Courts are without power to interfere. Such Interference, If tolerated at all, must be on the theory that the subject of the regulation is not within the legislative Jurisdiction; or, If the subject be one within such Jurisdiction, it must appear to the Court that, looking through mere forms and at the substance of the matter, it can say that the statute enacted professedly in the interest of the public or general welfare has no ‘substantial relation to that object, but is a clear, unmistakable Infringement of rights secured by the fundamental law.’”

Fire Hazard Preventive Law Held Valid

For the reason that the Courts will, where it is practical to do so, uphold the validity of laws intended to reduce fire hazards, usually property owners cannot avoid the consequences of such laws on mere technicalities.

For instance, in Carter vs. Stevens, 284 Pac. 217, a state enacted a law in 1927 titled:

“An act to reduce the fire insurance hazards of the business of clothes cleaning establishments, providing for the enforcement thereof by the state fire marshal, providing ways and means for enforcement and providing penalties for violations.”

The law was intended to put in operation a system of regulation for clothes cleaning establishments for the purpose of reducing fire hazards.

In 1929 the Legislature revised the law and omitted the word “insurance.” Later the municipal fire marshal attempted to regulate certain dry cleaning establishments. The proprietors contested the validity of the law. However, the Court held the statute valid and explained important law, as follows:

“Manifestly an error, by insertion of the word ‘Insurance,’ crept into the title of the act of 1927. The act of 1929 corrects and recasts the title of that act. . . . We thus have a situation where the new act revises, amends, and republishes the title and every section of the former act. We also have a situation where practically all the substantive provisions of the original act have been re-enacted by the amendatory act. Under this situation, by virtue of the well understood rule of statutory Interpretation, all provisions of the original act omitted from the new enactment are repealed.”

“The power to designate the subject of police regulation rests with the state alone, and if a given statute is not clearly repugnant to some constitutional guaranty, the courts are without power to interfere. Such interference, if tolerated at all, must be on the theory that the subject of the regulation is not within the legislative jurisdiction.”

City Ordinance Held Valid

Generally speaking, any reasonable fire preventive municipal ordinance is valid, and deemed within the “police power” when it is intended to benefit the public.

For illustration, in Citizens’ Company vs. Barnes, 124 So. 722, the Court considered the validity of the following law:

“It shall be unlawful to repair any frame building when damaged by fire other casualty or decay to the extent, in the opinion of the Building Inspector, of 50% of what it would cost to build a new building of like character…. If the owner of such building shall object to the decision of the Building Inspector, the question shall be settled by three disinterested persons, one to he chosen by the Building Inspector, one by the owner of the Building and the two thus chosen shall select the third. A decision of the majority of the persons thus chosen shall be conclusive and final.”

The validity of the ordinance was contested on the contention that this enforcement violated the United States Constitution which prohibits taking private property without just compensation. Nevertheless, the law was held valid and the Court said:

“There can be no question as to the authority of the city to enact the ordinance in question. It is in the interests of the public welfare and within the police power. . . . The ordinance provides that, when the owner of the building ‘objects to the conclusion arrived at by the inspector,’ arbitrators shall be appointed, who are required to proceed and re-examine the matter and make due report…. In any event, the decision of those officers should be disturbed only upon very clear grounds.”

The Law of Fire Insurance

It is important to know that under certain circumstances an insurance agent may be personally responsible on fire insurance contracts.

For example, in Gates vs. Justice, 148 S. E. 197, an insurance agent wrote two fire insurance policies on insurance companies not licensed to transact business in that state. The agent conducted a general insurance business under the name of “Lee Justice Insurance Agency.”

Later the buildings burned and the owner, being unable to collect the insurance from the company, filed suit against the agent. It is interesting to observe that the Court held the agent personally liable, stating the following important law:

“Prudent business men and property owners do not wait to be personally solicited before procuring insurance on their property, but their custom is to apply to the agent of some company or association engaged in the business of insurance; and, if the agent is a mere solicitor, their application is forwarded to some agent or Officer having authority to accept or reject it. . . . An insurance agent is ordinarily defined as ono appointed by an insurance company ‘to perform some act or acts in furtherance of the business of his principal. Whether upon a given state OL facts one is or is not to be deemed the agent of the insurer has generally been held to be a question of law.’ . . . His authority to perform these acts for them was express and is not even left to implication. That he was their (insurance company’s) agent is so apparent as to need no further comment. … As their agent it is a well settled principle of law that he ‘cannot be considered in any sense as the agent of insured in any matter connected with the issuance of the policy,’ . . . The defendant (insurance agent) is personally liable upon the insuranc contracts in this case.”

Foreman Loses Life Trying to Save Others Fire broke out in a warehouse owned by a department store of Portland, Ore. A foreman employed there re-entered the burning building to make sure that all his fellow workers were cut. Firemen wearing gas masks found him unconscious, but the foreman could not be revived by emergency treatment. Damage was estimated at $50,000. Firemen are shown carrying out the victim.

Agent’s Honesty Legal Requirement

Moreover, an insurance company is responsible for the information which an authorized insurance agent obtains and fails to impart to the company.

For illustration, in Hartford Fire Ins. Company vs. Clark, 122 So. 551, it was disclosed that an insurance policy provided:

“This entire policy . . . shall be void … if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

An agent wrote a fire insurance policy on a building after receiving from the applicant a signed application on which appeared the following questions and answers:

“Are you the sole and absolute owner of the property proposed to be insured?” “Yes.”

“Is the title to the land on which buildings are situated in your name?” “Yes.”

Later the building burned and the insurance company refused to pay the loss upon receiving information that the property did not belong to the insured.

However, since the testimony showed that the insurance agent was informed, when he accepted the application, that the applicant did not hold legal title to the property, the Court held the insurance company liable, saying:

“The agent Dicken had knowledge of the condition of the title or quality of ownership of the insured when he accepted and forwarded the application and when he countersigned and delivered the policy and collected the premium. . . . ‘In such case the insurance company cannot claim that it has been wronged or deceived, and to permit it to issue a policy and take the benefits of the contract, knowing at the time that it is not bound thereby, and afterwards to avoid liability thereon, upon the ground that something existed or did not exist of which the company or its agent was fully aware at the time the contract was made, would be repugnant to that sense of justice and morality.’ ’ ’ ’ It makes no difference whether he was a soliciting agent or a general agent of his company. The testimony undisputably shows that he was the only agent who solicited the insurance, inspected the risk, accepted the application, receipted for the premium, and delivered the policy.”

Automobile Owner Liable for Injury to Municipal Fireman

In almost all cases the Courts have held owners of private vehicles liable in damages to members of city fire departments who are injured as a result of the driver of the private vehicle failing to drive to the curb and stop when having had warning that a fire truck is approaching.

For illustration, in Padgett vs. McKissick, 280 Pac. 409. it was disclosed that a municipal fire truck was traveling to a fire. A fireman was standing on the left running board and sounding a siren to give warning to the traffic of the approach of the fire truck. A motor-truck was first noticed or seen by the driver of the fire truck about one block away. At about the same time the driver of the motor-truck looked around and saw the approaching fire truck and failed to turn to the curb, but kept driving for some considerable distance in the direction of the fire until he came to a street intersection where he turned to the right. The driver of the fire truck, instead of passing the motortruck on the left side, attempted to pass it on the right side and ran into it, seriously injuring a fireman who sued the owner of the motor-truck for damages.

By reason of an almost universal custom, it is only in exceptional cases where an overtaking vehicle may be justified in passing another vehicle on the right side instead of on the left. It is important to know that situations may arise, however, which would justify such action. For instance, suppose a slow moving vehicle on only a two-way road monopolizes the center of the road or the left side thereof and refuses to obey the law and the rules of the road to turn to the right after being properly signaled bv an approaching vehicle. To say that this slow-moving vehicle might disobey the rules of the road and prevent the overtaking vehicle from passing, unless the passing vehicle committed a breach of duty, would be against the established rules in regard to legal liability. For these reasons and also because it is a legal requirement for motor vehicles drivers to drive to the curb and stop to permit a truck to pass, the lower Court’s decision which held the injured fireman not entitled to damages was reversed by the higher Court, which stated the following interesting law:

(Continued on page 339)

(Continued from page 316)

“The vital question presented is whether or not the conduct of the driver of defendant’s (motor-truck owner’s) truck was so willful or arbitrary in holdine: the road as against this emergency vehicle as would justify the fire truck in attempting to pass him on the right instead of the customary left. The statutes of this state, as well as the generally accepted rules of the road, require that motor-driven vehicles pass other vehicles only on the left side thereof, and then after giving proper and timely warning. . . . The question of the willful conduct or the arbitrary action of the driver of the vehicle overtaken, and the emergency or necessity of the overtaking vehicle in passing, are always questions for the jury in determining the existence of negligence and the proximate cause of an injury resulting from a collision of the vehicles in one passing the other, regardless of whether the attempted passage was on the right side or the left side of the vehicle overtaken. … In the present case testimony was introduced which, if believed by the jury., tended to show that Protzman. the driver of the truck, saw and heard the approaching fire truck and arbitrarily held the road until the fire truck had gotten within 15 or 20 feet of him. It was within the province of the jury to consider this testimony and to determine whether or not the conduct of Protzman was arbitrary or willful, and determine the necessity, if any, of the fire truck in passing the truck on the right-hand side. . . . Had the driver of the defendant’s motor truck stopped his vehicle at the street line . . . the fire truck would have passed without interferen.ce.”

When City Is Liable for Injuries Caused by Fire Department

The overwhelming weight of legal authority is to the effect that a fire department, maintained by a municipal corporation, belongs to the public or governmental branch of the municipality. Therefore, a city is not liable for injuries to persons or property resulting from the maintenance and operation of its fire department, although the injuries are negligently effected.

For instance, in Barcus vs. city of Coffeyville, 282 Pac. 698, decided during the past recent weeks, it was proved that a fire truck, being driven on the wrong side of the street negligently collided with an automobile, killing its occupant, when the truck was being driven in response to a fire alarm. The dependents of the man who was killed sued the city for damages.

The sole question presented the Court was whether the city was liable for the negligence of its fire department employes. The city contended that in the maintenance and operation of its fire department it performs a governmental function, and that it is not liable for injuries which are the result of negligent acts of its servants or officers while engaged in the performance of their governmental duties.

After thoroughly reviewing the testimony the Court held the city not liable and said:

“The general rule, well settled in this state and elsewhere, is that in the performance of governmental functions neither the state nor any of its political subdivisions is liable in damages for the negligence of its officers. … In the maintenance and operation of its fire department a city acts in its governmental capacity. . . . The power conferred by the statute on cities of this state to organize and regulate tire companies and provide engines, etc., for extinguishing fires, is, in its nature, legislative and governmental; and a city is not liable to individuals for damage resulting from a failure to provide the necessary agencies for extinguishing fires, or from the negligence of officers or other persons connected with the fire department.”

It is interesting to observe that only one state Court in the United States has held municipalities liable for injuries caused by city fire departments. In Kaufman, 87 Fla. 119, the Florida Supreme Court held a city liable in damages for injury caused a pedestrian by fire apparatus which was responding to a fire alarm.

Therefore, it may be fairly said that the decisions from the Florida Court support the view that a municipality should pay compensation to persons and property injured by negligence of its fire department, but in this respect the decisions of the Florida Court virtually stand alone, being opposed to the decisions in practically every state in the Union.

On the other hand, it is important to know that while the maintenance and operation of a municipal fire department is a governmental function, for which negligence causing injuries the city is not liable, yet a workman employed to perform labor or repairs on a fire station, fire apparatus or other equipment of a municipal fire department is entitled to recovedamages for an injury resulting from negligence of the city officials or the fire department employe. This is true because this class of work is deemed to be a ministerial duty and a city is liable in damages for injuries effected while its officials or employes are performing ministerial duties.

The leading case on this subject is Bowden vs. Kansas City, 69 Kan. 587. Here it was held that a city is “performing a ministerial public duty in maintaining a fire station,” and is liable in damages to an employe for personal injuries resulting from the neglect of the city to furnish him a reasonably safe place in which to work. The Court in this case based its decision on the relation of employer and employe.

City Liable for Discharging Civil Service Employe

It is well established that a municipal fireman employed under civil service law cannot ordinarily be discharged without just cause, except in accordance with the state and city laws.

For example, in Rodgers vs. Board of Public Works, 281 Pac. 64, it was disclosed that a person was appointed by a municipal civil service commission. Without a legal reason the commission adopted a rule requiring civil service employes to have been employed at least one year before being entitled to reappointment after a “lay-off.”

The employe was laid off by the city officials on account of lack of funds with which to pay salaries. The employe sued to compel the commission to pay his salary during the period he was without employment. Also, he requested the Court to order the commission to reinstate him.

It is interesting to observe that the Court rendered a verdict in favor of the employe, saying;

“We are in accord with the view that the commission had no power to adopt a rule requiring: service for one year before an employe is entitled to be returned to his position after a ‘lay-off.’ As we have indicated, the charter provides that . . . any person appointed ‘shall retain any position lawfully held . . . so long as sueli position Is maintained,’ unless removed for cause. It has been expressly found that the permanent position of the employe was maintained during the time involved in this controversy, that the employe’s appointment was to a permanent position, and that he had served in such position for over six months.”

Fireman Not Entitled to Damages for Injury

Ordinarily, a member of a municipal fire department, or his dependents, cannot recover damages for an injury sustained while he is performing a governmental function.

For instance, in Cathey vs. City of Charlotte, 34 F. (2d) 352, the dependents of a fireman filed suit against the municipality for the death of the fireman. He was ordered by the city to remove a wire from the cross-arm of a telephone pole maintained by the telephone company, but the wire was a part of the apparatus used by the city in its fire alarm system. The fireman was removing the wire when the pole broke and fell, so injuring him that he died.

The Supreme Court of the state held the city not liable and the United States Court upheld the decision, saying:

“The ease was carried to the Supreme Court of North Carolina. This high Court held that the plaintiff (fireman) could not recover against the city of Charlotte because the intestate was engaged in the work of the city and performing a governmental function when injured.”

Value of Firefoam Demonstrated in Australia Tests, conducted by the Colonial Sugar Refinery, Ltd., New Farm, Brisbane, Australia, were made to illustrate the cohesive and blanketing properties of foam delivered from generators.
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