Irwin v. Torbert , 204 Ga. 111 ( 1948 )

1. (a) Neither the Ordinance of 1908 nor the Building Code of the City of Atlanta of 1924 is sufficient to establish, in the instant case, a cause of action predicated upon negligence per se.

(b,1) Neither the Ordinance of 1938 nor § 51-117 of the City Code of Atlanta is ultra vires as being beyond the charter powers of the city.

(b,2) Neither the Ordinance of 1938 nor § 51-117 of the City Code of Atlanta is a special ordinance for which provision has been made by the existing general State law contained in Code § 54-402, and neither is therefore in violation of article I, section IV, paragraph I, of the Constitution of 1877 (Code, § 2-401).

(b,3) Neither the Ordinance of 1938 nor § 51-117 of the City Code is void as being an unlawful delegation of the legislative powers of the city.

(b,4) Neither the Ordinance of 1938 nor § 51-117 of the City Code is too vague and indefinite to constitute a valid city ordinance.

2. The Ordinance of 1938 and the City Code, § 51-117 each having a similar provision therein, in which part IX of the Building Code of the City of Atlanta is made a necessary part thereof, and part IX of the Building Code not being made a part of the amended petition, it was error to overrule a demurrer directed to this omission.

3. The petition setting forth § 10(4) of the Building Code of the City of Atlanta, which provides that "Buildings of masonry, steel, or reinforced concrete construction in accordance with §§ 110 to 173, shall be considered fire resistive," and §§ 110 to 173 not being made a part of the amended petition, it was error to overrule a demurrer directed to this omission.

4. There was no error in overruling other grounds of demurrer specified in the corresponding division of the opinion.

5. While acts of commission or omission must, to constitute actionable negligence, amount to a violation of some law, and while there is no law specifying any of the alleged negligent acts or omissions mentioned in the corresponding division of the opinion, infra, yet the Code § 105-401 makes unlawful both acts of commission and acts of omission if they constitute want of ordinary care; and since they are alleged to have occurred at the same time and place, they must be considered together and not separately on demurrer, although separate demurrers are directed to each respectively; and so considered, it can not be said as a matter of law that the alleged acts do not show a lack of ordinary care, but such questions must be determined by the jury.

6. The court did not err in sustaining other grounds of demurrer as set forth in the corresponding division of this opinion, and excepted to in the cross-bill.

7. Direction is given to provide for opportunity to amend to meet rulings in divisions 2 and 3 of the opinion.

Nos. 16076, 16097, 16100, 16101. JUNE 11, 1948. REHEARING DENIED JULY 16, 1948. This was a suit in equity by O. B. Torbert against Mrs. Annie Lee Irwin, and Winecoff Hotel Company, a partnership composed of A. F. Geele Sr., A. F. Geele Jr., and R. E. O'Connell, and each of the parties individually, for damages by reason of the death of petitioner's daughter in the Winecoff Hotel fire on December 7, 1946. The Arlington Corporation was also an original defendant.

In seeking equitable relief others were made parties defendant, to wit: Life and Casualty Insurance Company of Tennessee; Home Fire and Marine Insurance Company; Royal Insurance Company, Ltd.; Fireman's Fund Insurance Company; Home Insurance Company of New York; Potomac Insurance Company; Ocean Accident Guarantee Corporation, Ltd.; Caledonian Insurance Company Inc.; Alan B. Ford, doing business as Avalon Hotel; Atlanta Laundries Inc., doing business as American Laundries; W. S. Heiber, doing business as Henri Monet; E. D. Smith Jr.; Smith, Kilpatrick, Cody, Rogers McClatchey; T. E. Suttles, Tax Collector, Fulton County; W. Lee Morrison; William J. Burns; Ben T. Hewitt (Huiet?); Lee Baking Company; City of Atlanta; Armour Company; and Williams Meat Company.

Other angles of this case have previously been before this court. Geele v. Torbert, 202 Ga. 482 (43 S.E.2d 702);Irwin v. Torbert, 202 Ga. 482 (43 S.E.2d 703); Geele v. Torbert, 203 Ga. 267 (46 S.E.2d 126); Arlington Corp. v. Torbert, 203 Ga. 310 (46 S.E.2d 259).

The questions now before the court are raised by exceptions to the overruling of a general demurrer to the petition, and to the overruling of certain special demurrers. By cross-bill, exceptions are taken to the ruling on all demurrers which were sustained.

The references in this opinion to paragraphs of demurrer apply to the demurrer filed by Mrs. Irwin in the case of Torbert v.Irwin. A. F. Geele Sr., A. F. Geele Jr., and R. E. O'Connell filed demurrers raising the same questions, though the grounds were numbered differently.

The pleadings are voluminous, the original petition having been amended eight times, to which there were three demurrers, one to the original petition as first amended, another following the sixth amendment, and the third after the filing of the eighth amendment.

It would serve no useful purpose, and would unnecessarily prolong this statement of facts, to set forth the various allegations of the amended petition. Suffice it to say, that Torbert sought damages from Mrs. Irwin, as owner of the Winecoff Hotel building and from Geele, Geele, and O'Connell, individually, and as a partnership, as lessees and operators thereof. The petition alleges negligence on the part of each of the above defendants in two ways, to wit: negligence per se by reason of maintaining the building and operating the hotel in violation of certain designated ordinances of the City of Atlanta; and also by reason of common-law negligence as set forth and described in various allegations of the petition. The principal rulings here excepted to are the decision of the trial judge, who overruled the demurrers as to negligence per se, and sustained the demurrers as to common-law negligence. The specific allegations of negligence and other questions necessary to the determination of the questions here presented will be detailed in the opinion. (After stating the foregoing facts.) 1. Four ordinances of the City of Atlanta, a violation of which was alleged as negligence per se, were as follows: (1) Ordinance of 1908, (2) Building Code of 1924, (3) Ordinance of 1938, and (4) § 51-117 of the Code of the City of Atlanta.

(a) The Ordinance of 1908 is contained in the third paragraph of the eighth amendment. The Building Code of 1924 is set forth in the second paragraph of the third amendment and the third paragraph of the eighth amendment. By section 326 of this Building Code, as contained in the eighth amendment, it is provided that "any and all other ordinances . . affecting or relating to the construction, alteration or removal of buildings or other structures . . are hereby repealed." Accordingly, the Ordinance of 1908, which related to the construction of buildings, was repealed. By the terms of the Building Code of 1924, as set forth in the first paragraph of the eighth amendment, it is provided that, "Unless existing buildings or structures are specifically mentioned, the provisions of this Code shall apply only to buildings or structures hereafter erected." The allegations of the petition show that the Winecoff Hotel was built about 1912. Therefore, a violation of either the Ordinance of 1908 or the Building Code of 1924 would not constitute negligence per se, and the trial judge erred in overruling demurrers thereto.

(b) The Ordinance of 1938, as contained in paragraph four of the third amendment, and § 51-117 of the City Code, as set forth in paragraph one of the seventh amendment, contain identical provisions. Each in part provides: "Buildings over two stories in height, except buildings of fire-resistive construction, as defined in the Building Code of the City of Atlanta, occupied by 10 or more persons above the second story, or 25 or more persons on the second floor, shall have all stairways, elevators, light shafts and other vertical openings protected and enclosed with wired glass in metal, or with heavy wooden frames, or with partitions having one hour fire resistance; or such buildings shall be equipped throughout with automatic sprinkler systems; or they shall be equipped throughout with automatic alarm systems; or they shall be provided with manual alarm systems, if in the opinion of the Board of Examiners created by section 314 of the Building Code such system is suitable in connection with a watchman or others on duty during the occupancy of any such building, to assure the quick transmission of an alarm of fire; or they shall have such combination of the above items as, in the opinion of the Board of Examiners, to assure safe occupancy of the building. Also, such buildings shall conform to the provisions of Part IX of the Building Code of the City of Atlanta."

Numerous grounds of demurrer thereto were interposed and overruled. It is here insisted that the court erred in that: 1. Each is ultra vires as being beyond the charter powers of the city. 2. Each is a special ordinance for which provision has been made by general law, and is in violation of article I, section IV, paragraph I, of the Georgia Constitution. 3. Each constitutes an unlawful delegation of the legislative power of the city, which under the charter is vested in "the mayor, board of aldermen, and board of councilmen." 4. Each is too vague and indefinite to constitute a valid municipal ordinance.

(b, 1) As to the question of the ordinance being ultra vires, we look to certain provisions of the charter. Both the charter granted by the act of 1874 (Ga. L. 1874, p. 116), and the act of 1913 (Ga. L. 1913, p. 507) provide the inhabitants "with power to govern themselves by such ordinances, resolutions and bylaws, for municipal purposes, as they may deem proper, not in conflict with this charter, nor the Constitution and laws of this State." And each further provides: "The said Mayor and General Council shall have full power and authority to pass all bylaws and ordinances respecting public buildings and grounds, work houses, public houses, . . and every other bylaw, regulation and ordinance that may seem to them proper for the security, for the peace, health, order and good government of said city." Also, by the act of 1889 (Ga. L. 1888-1889, Vol. II, p. 811) and the act of 1913 (Ga. L. 1913, pp. 507, 521), the following is provided: "That the Mayor and General Council . . are hereby authorized and empowered . . to require of the owner, agent, lessee or tenant in possession of any building . . to place thereon fire escapes of such character and material as may be . . deemed requisite [it then provides for notice and penalty]. Said Mayor and General Council shall have power to prescribe by ordinance for the regulation of the placing of fire escapes on buildings in said city, requiring the same, as to notice, time within which to place the same after notice and otherwise." Also, by the act of 1874 (Ga. L. 1874, pp. 116, 148) and the act of 1913 (Ga. L. 1913, pp. 507, 591), "The said Mayor and General Council shall have power and authority to continue the fire limits, as now established by law, . . within which fire limits . . it shall not be lawful for any one to erect other than fire-proof buildings; . . and should any one erect . . within such fire limits, so established, any such building, . . said Mayor and General Council . . shall cause the same to be removed; . . and the said Mayor and General Council shall have power to determine what buildings or other structures are or are not fire-proof."

A grant of power to a municipal corporation must be strictly construed. It can exercise no power except those expressly given or necessarily implied from express grants of other powers, and no power passes which is not clearly comprehended within the language of the statute. Augusta Summerville R. Co. v.Augusta, 100 Ga. 701 (28 S.E. 126); City Council ofAugusta v. Mackey, 113 Ga. 64 (38 S.E. 339); Lofton v.Collins, 117 Ga. 434 (43 S.E. 708, 61 L.R.A. 150);Walker v. McNelly, 121 Ga. 114 (48 S.E. 718); GeorgiaRailway Power Co. v. Railroad Commission, 149 Ga. 1 (98 S.E. 696, 5 A.L.R. 1); Town of McIntyre v. Baldwin, 61 Ga. App. 489 (6 S.E.2d 372).

Applying this rule to the ordinance of 1938 (City Code, § 51-117), which is here questioned, we hold that ample authority therefore is contained in the charter. As above stated, the charter vests the Mayor and Council with "power to govern themselves by such ordinances, resolutions and bylaws, for municipal purposes, as they may deem proper, not in conflict with this charter, nor the Constitution and laws of this State." They are then specifically given the authority "to pass all bylaws and ordinances respecting public buildings and grounds, work houses, public houses, . . proper for the security, for the peace, health, order and good government of said city." In so construing this ordinance and City Code section, consideration is also given to the thought that regulations for the construction of buildings, with a view of preventing fires and conflagrations within municipalities, are within the scope of the general powers of a municipal corporation, unless forbidden by the charter. Such has been held as to the building of a schoolhouse. See Mayor ofCartersville v. Baker, 73 Ga. 686. To be able to prevent the construction or maintenance of fire hazards is as much within the scope of the general powers of a municipality as the building of a schoolhouse. The "protection to person and property is the paramount duty of government." Constitution article I, section I, paragraph II (Code, Ann., § 2-102).

It is insisted that the act of 1889 (p. 811) and the act of 1913 (p. 507), authorizing the city to require fire escapes, showed that the General Assembly construed the then existing charter powers as insufficient for this purpose without this additional authority. We see no merit in this contention, as the ordinance here under attack was an ordinance of 1938. Nor does the fact that the charter of 1874 makes provision for the actual removal of a non-fire-proof building within the "fire limits" of the city negative the authority to provide building regulations within the city limits.

(b, 2) It is asserted that the Ordinance of 1938 and the City Code, § 51-117, are special ordinances for which provision has been made by general law, and are therefore in violation of article I, section IV, paragraph I, of the Georgia Constitution of 1877 (Code, § 2-401), which in part provides: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law." The general law invoked is the act of 1889 (Ga. L. 1888-9, Vol. II, p. 168, Code, § 54-402), the pertinent parts thereof being as follows: "Owners of every building more than two stories in height, not including the basement, used in the third or higher stories, in whole or in part, as factory or workshop, shall provide more than one way of egress from each story of said building above the second story, by stairways on the inside or outside of said building, and such stairways shall be, as nearly as may be practicable, at opposite ends of each story and so constructed that, in case of fire, the ground can readily be reached from the third and higher stories. Stairways on the outside of said building shall have suitable railed landings at each story above the first, and shall connect with each of said stories by doors or windows opening outwardly, and such doors, windows, and landings shall be kept at all times clear of obstructions. All the main doors of such buildings, both inside and outside, shall open outwardly, and each story shall be amply supplied with means for extinguishing fires." Code § 54-403 provides for examination of buildings. Then § 54-404 provides: "The municipal authorities of any town or city may, by ordinance, provide that the provisions of this Chapter shall apply to all buildings within their limits not used as private residences, three or more stories in height."

It is contended that this general law exhausts the subject in so far as hazards of fire are concerned, and that a municipality can go no further than to adopt this provision as applicable to such buildings which are not used as private residences.

The ordinance in question provides that certain described buildings shall have "all stairways, elevators, light shafts and other vertical openings protected and enclosed with wired glass in metal, or with heavy wooden frames, or with partitions having one hour fire resistance," or "automatic sprinkler systems," or "automatic alarm systems," or under certain conditions with "manual alarm systems," or under certain circumstances a "combination of the above items." When these requirements are applied to the provisions of the Code, § 54-402, we see no overlapping of the same requirements. The general law as set forth in this Code section requires "more than one way of egress from each story . . above the second story, by stairways on the inside or outside . . at opposite ends of each story . . so . . in case of fire, the ground can readily be reached from the third or higher stories." It then makes certain requirements for the construction and maintenance of the outside stairways and main doors of the building, and requires that "each shall be amply supplied with means for extinguishing fires."

We can see no specific requirement in the terms of the city ordinance for which provision has already been made by the general law contained in the Code, § 54-402. Nor can we denominate them as being on the same general subject. The general law is designed for the protection of the lives of occupants of a building after a fire occurs therein. The city ordinance, by requiring the building to contain described material and equipment, has for its purpose the prevention of fire, or the spread of fire, therein. City of Atlanta v. Hudgins,193 Ga. 618 (19 S.E.2d 508), is not controlling here.

In reaching this conclusion no implication or intimation is intended as to whether the constitutional provision invoked, article 1, section 4, paragraph 1 (Code, Ann., § 2-401), would apply at all to municipal ordinances as distinguished from enactments of the General Assembly, no ruling or expression upon such question being necessary in the view that we have taken upon other questions as just indicated.

(b, 3) The ordinance of 1938 (City Code, § 51-117) is further attacked as being an unlawful delegation of the legislative powers of the city. In addition to the part of the ordinance above quoted under division (b) of this opinion, it also, by section (d) (set forth in the seventh amendment), provides as follows: "It shall be the duty of the Board of Examiners created by section 314 of the Building Code of the City of Atlanta to prepare and issue in printed form suitable regulations and rules covering the construction and functioning of alarm systems and automatic extinguishing devices and to issue the necessary details as to the minimum protection to vertical openings in buildings to make them reasonably fire safe. Such standards, rules and requirements shall not exceed or be inconsistent with those promulgated by the National Bureau of Standards, the American Standards Association, Underwriters Laboratories Inc., and the National Board of Fire Underwriters."

It is contended that this section delegates the city's legislative power to the Board of Examiners, and, or, adopts rules and standards as promulgated by other organizations. We can not concur in this view. This section merely defines a duty and puts a burden on the Board of Examiners. It in no way makes any provision to govern the conduct or place any duty upon the owner of the building.

(b, 4) The Ordinance of 1938 and the City Code, § 51-117, are also attacked as being too vague and indefinite to constitute a valid municipal ordinance. We hold that this criticism is not justified.

2. Other grounds of demurrer were interposed to the Ordinance of 1938 and the City Code, § 51-117. Paragraph 3 of the first demurrer, 9 (a) of the second demurrer, and paragraph 1 (a) of the third demurrer are similar, and each is directed to the incompleteness of the above ordinances as set forth. The demurrers attack the ordinance on the grounds, that, as pleaded, each ordinance shows that Part IX of the Building Code of the City of Atlanta is a component and necessary part of the ordinances alleged (each alleging that the buildings there referred to "shall conform to the provisions of Part IX of the Building Code of the City of Atlanta"), and nowhere in the petition as amended is a copy of Part IX of the Building Code set out or attached as an exhibit, and that these ordinances convey no meaning and can not be properly construed unless said Part IX of the Building Code is read in connection therewith.

While in paragraph 2 and paragraph 6 of the third amendment, and in paragraph 1 of the eighth amendment, certain apparently disconnected and isolated sections of the Building Code are set forth, yet nowhere therein is there anything to identify any of said provisions as being all or any part of Part IX of the Building Code.

The defendants are entitled to have the provisions of § 51-117 of the Code of the City of Atlanta, and the Ordinance of 1938, considered in connection with Part IX of the Building Code of the City of Atlanta, which is made a component part of each; and neither the petition nor either amendment having set forth the terms thereof, the court erred in overruling these grounds of demurrer. A court can not take judicial cognizance of municipal ordinances, and where relied on to show rights, they should be set out in the pleadings. Funk v. Browne, 145 Ga. 828 (2) (90 S.E. 64); McDonald v. Lane, 80 Ga. 497 (5 S.E. 628).

3. Paragraph 4 of the third demurrer attacks a portion of the Building Code set forth in paragraph 1 of the eighth amendment, which states: "Section 10 (4). Buildings of masonry, steel, or reinforced concrete construction in accordance with sections 110 to 173, shall be considered fire resistive." The attack is upon the ground that it is incomplete, in that sections 110 to 173 are component and necessary parts of that section of the Building Code, and nowhere in said petition or amendments thereto are said sections set out, or attached as exhibits, and said section can not be properly construed without sections 110 to 173 being read in connection therewith.

The defendants are entitled to have section 10 (4) considered in connection with sections 110 to 173, as they are a part thereof; and the petition as amended failing to incorporate these sections, the court erred in not sustaining this ground of demurrer. Funk v. Browne, supra; McDonald v. Lane, supra.

4. Other grounds of demurrer which were overruled require no elaboration. The allegations attacked by grounds 4, 10, 19, 20, and 21 of the first demurrer and paragraphs 1 and 15 of the second demurrer were corrected by subsequent amendments. The grounds of paragraphs 5, 6, and 15 of the first demurrer, and paragraphs 2, 8, 10, 16, and 18 of the second demurrer were covered by rulings in the first division of this opinion. Paragraphs 11, 12, 13, and 14 of the second demurrer, and paragraphs 6, 7, and 8, of the third demurrer were directed to allegations that were pertinent to equitable relief. Paragraphs 9, 13, and 14, of the first demurrer and paragraphs 2 (a) and 7 of the second demurrer were properly overruled.

5. By cross-bill of exceptions error is assigned upon every ground of demurrer sustained by the trial judge. Paragraphs 4, 5, 6, 7, 8, 15, and 16, of the first demurrer and paragraph 2 of the second demurrer were directed to allegations alleging common-law negligence.

The petition alleged that plaintiff's daughter was a guest in room 1430 of the hotel when fire broke out on the third floor at 3 a. m. on December 7, 1946, that she was killed by carbon monoxide gas caused by the fire, and that the hotel was constructed about 1912. It was further alleged that Mrs. Irwin acquired ownership in 1943, at which time she assumed obligations under the terms of an existing lease contract extending through 1956; and that subsequently Geele, Geele, and O'Connell became tenants as assignees of the lease contract, and as such, obligated to its terms and conditions. That Geele, Geele, and O'Connell were operating a hotel in the building and Mrs. Irwin knew that the building was being so used.

After long and painstaking research and study of the amended petition, the various grounds of demurrer and the order of the trial judge thereon, it is difficult to determine the exact status of the record in so far as it pertains to common-law negligence. From the order of the trial judge, wherein rulings on the demurrers were passed upon, it is reasonably clear that he took the position that the allegations of the amended petition, in so far as they sought to allege a cause of action based on common-law negligence, should be stricken.

The allegations relating thereto in the petition as amended were in substance as follows: The defendants, both the owner and the lessees, were negligent, in that the hotel building was constructed and maintained without fire doors enclosing the elevator shaft, without a sprinkler system, without a fire-alarm system, without any fire escape whatsoever, and without any roof that would permit flames and gases to escape, and with a large amount of wood and other combustible materials throughout the hotel. It was so constructed that the elevator and steps created a section for flames, which could and did prevent escape by the only interior stairway or the only elevator shaft which were situated together, and it was impossible for a person to escape after the fire started. The stairways were not enclosed. The room in which the petitioner's daughter was at the time of the fire was on a floor high above the part of the hotel where the fire commenced, and she could not escape because the fire, beginning at the third floor below her, made it impossible for her to go down the elevator shaft or down the stairway. The owner and the operators had highly combustible burlap and paint throughout the hotel, and this caused the fire to spread rapidly. There was only one bell boy on duty in the entire hotel and no other employee of the hotel was stationed to fight the fire and warn the occupants. Approximately ten minutes after 3 a. m. the fire started and was seen and known by certain employees whose names are unknown to the petitioner. No alarm was turned in and no effort made to cause the petitioner's daughter and other guests to get out.

The views of the majority of the court, in which the writer and Justice Wyatt do not concur for reasons hereinafter stated, are as follows: The defendants assert the recognized principle of law to the effect that there can be no recovery for an injury which results from acts of commission or omission which violate on law. They cite in support of this very sound rule of lawJackson v. Standard Oil Co., 98 Ga. 749 (26 S.E. 60);Smith v. Clarke Hardware Co., 100 Ga. 163 (28 S.E. 73, 39 L.R.A. 607); West v. Inman, 137 Ga. 822 (74 S.E. 527, 39 L.R.A. (N.S.) 744, Ann. Cas. 1913B, 276), and other authorities. The entire assault upon the allegations relating to this feature of the case is predicated upon the assumption that none of the specific acts of omission or commission violates any law. Based upon this assumption, the conclusion is reached that no legal ground for recovery is shown. Since the rule of law is indisputable, it remains only to ascertain if there is in fact any law of force in this State that prohibits the alleged acts of commission or compels the alleged acts of omission. The owner here has neither the possession nor the right of possession except the right to go upon the premises for the purpose of making alterations or repairs required by the law. This limited right, as it relates to the duty to avoid acts of negligence which violate the law, is sufficient right of possession to render the owner liable for negligence in the structural condition which results in damages to others.

The owner, Mrs. Irwin, knew or by the exercise of ordinary diligence could have known the physical condition and type of structure of the hotel building at the time she purchased it. She is, therefore, charged with knowledge of the alleged structural deficiencies. She knew also that the building was, at the time of her purchase and thereafter until the fire, being used as a hotel involving the admission of a large number of persons as patrons of the lessees, and she profited by such use in the form of rentals which she received. In such circumstances she was required to exercise ordinary care for the safety of the patrons of the hotel. Restatement of the Law of Torts, par. 359; Colorado Mortgage Investment Co. v. Giacomini, 55 Col. 540 (136 P. 1039, L.R.A. 1915B, 364); Junkermann v. Tilyou Realty Co., 213 N.Y. 404 (108 N.E. 190, L.R.A. 1915F, 700).

Some criticism has been made of our construction of the clause in the lease dealing with the owner's limited right of possession when this case was here previously. See Irwin v. Torbert,202 Ga. 482 (supra); Irwin v. Willis, 202 Ga. 463 (43 S.E.2d 691). Whether or not that decision is the law of the case, we adhere to that construction, for the reason that we consider it sound. But we must, under the rule of law first above stated, find that there was a law violated by the alleged acts of negligence if this portion of the petition is to be upheld against the demurrer. There is such a law. The object and purpose of the Code, § 105-401, is to require the owner or occupier of the premises to exercise ordinary care in keeping the premises safe for an invitee, which the deceased was in this case. The ordinary diligence there required is defined in § 105-201. It is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. Indeed, this law does not specify outside fire escapes, closed stairways, sprinkler systems, or fire alarms, but it is broader than any such specific requirement and is comprehensive enough to embrace any or all of these and more if necessary to constitute the exercise of ordinary care in a given case.

The next inquiry is whether or not the alleged acts and omissions show lack of ordinary care as required by the law. The petition alleges that the defendants failed to exercise ordinary care in the manner above set out. It is sought by counsel first to have this court close its eyes to all but one of the alleged acts of negligence and the demurrers thereto and decide as a matter of law whether that specific act, standing alone, constitutes negligence under the law. The demurrers are directed to each alleged act separately, and in this way we are asked to reject one at a time all of such acts, since standing alone no one would be sufficient to constitute lack of ordinary care. Neither law nor sound reason would allow us to so dispose of these matters. It is a demonstrable fact that a combination of factors, which individually and alone would not be dangerous, might, because of the combination, constitute danger. For instance, it could not be said that the failure to have an outside fire escape for a building would alone constitute want of ordinary care or that any one of the alleged acts or omissions would, independently of the others, amount to a lack of ordinary care. But when they are combined at the same time and place, as here, it can not be said as a matter of law that want of ordinary care is not shown. Of course, all the alleged acts or omissions, such as insufficient watchmen, failure to give an alarm, accumulation of combustible materials in the halls and corridors of the building, which were not under the control of the owner, could not be charged against the owner, but may be considered only as against the lessees.

We are asked to take judicial cognizance that a vast majority of the hotels of this country at the time of this fire did not have fire doors, sprinkler systems, alarm systems, or facilities in reference to permitting flames or gases to escape, and that at the time of this fire practically all of the hotels in the City of Atlanta were on the same or lower plane with respect to fire doors, sprinkler systems, and the like, and that the care exercised by an ordinarily prudent person under the same or similar circumstances would not be greater than that exercised by the operators of the Hotel Winecoff. In support of this request, counsel cite Minnesota v. Barber, 136 U.S. 32110 Sup. Ct. 862,34 L. ed. 455), where it is said: "If a fact . . upon which the rights of the parties depend, is within common experience and knowledge, it is one of which the courts will take judicial notice." Courts should never take judicial cognizance of anything that is subject to be disproved. This court can not judicially say what legal evidence upon the trial might show as to the matters here mentioned. These matters are proper for the jury to consider as circumstances bearing upon the ultimate question of negligence, if they are proved upon the trial.

The court erred in sustaining the demurrers of all the defendants as to the allegations of negligence relating to deficiencies and defects in the structure of the building. The allegations of negligence in the operation of the hotel were good against the demurrers of the lessees, but were not good against the demurrers of the owner.

As hereinbefore stated, the writer does not concur in the above views, but is of the following opinion, in which he is authorized by Justice Wyatt to state that he concurs:

An innkeeper is not an insurer of his guests' safety.Holloman v. Henry Grady Hotel Co., 42 Ga. App. 347 (156 S.E. 275); Hotel Richmond v. Wilkinson, 73 Ga. App. 36 (35 S.E.2d 536). There can be no case of the negligent injury of one person by another in the absence of a legal duty to the person injured. Smith v. Clarke Hardware Co., 100 Ga. 163 (supra).

It is clear, under the decision in West v. Inman,137 Ga. 822 (1) (supra), that at common law the failure to provide fire escapes on the part of the owner of the building, used as alleged in the instant case, did not render the owner liable in damages for injuries incurred in consequence of such failure.

Neither is there any common-law duty on the part of the owner of a hotel building, which would restrict the construction or the maintenance of the building to any particular type of building material; or to any general plan of interior arrangement; or to any type of heat-resisting paint or other material applied to or made a part thereof. Nor would there be any common-law negligence on the part of the lessees and operators of a hotel for using the building, by reason of injury to a guest on account of the building burning, where the building was constructed in a way that it violated no common-law duty. In other words, there is no common-law duty on the part of the owner of a hotel building, or the lessee who operates a hotel business therein, to have any particular type of building; nor is there any common-law duty on the part of the lessees who operate a hotel business therein to maintain any particular service to prevent or extinguish fires within the building. Liability for injury due to a fire by reason of the construction of the building, or the absence of a service to prevent or extinguish fires, must be predicated upon a violation of some statute or ordinance.

The exact question has not been passed upon by this court, though a related question was involved in Lester v. Foster,40 Ga. App. 500 (150 S.E. 433). Ample authority for the ruling above made is found in the decisions of the courts of other States.

At common law the owner of a building was not bound to anticipate the possibility of remote danger from fire, or that its occurrence would put in jeopardy the lives of its employees or tenants. Yall v. Snow, 201 Mo. 511 (100 S.W. 1, 10 L.R.A. (N.S.) 177, 119 Am. St. R. 781, 9 Ann. Cas. 1161). At common law there was no duty imposed upon an owner of a building to provide any particular means of escape from a fire. Jones v. Granite Mills, 126 Mass. 84 (30 Am. R. 661); Arms v. Ayer,192 Ill. 601 (61 N.E. 851, 58 L.R.A. 277, 85 Am. St. R. 357); Pauley v. Steam Gauge Lantern Co., 131 N.Y. 90 (29 N.E. 999, 15 L.R.A. 194).

In Baugh v. McCleskey (1927, Tex. Civ. App.) 292 S.W. 950, where the fire originated underneath the stairway on the ground floor, and on account of the height of the building and the nature of its construction a strong suction must have been created and necessarily caused the flames to spread rapidly over the building, it was held that an innkeeper is not the insurer of the safety of his guests, and that in order to charge the innkeeper with liability for injuries to the person of his guest, the negligence of the innkeeper must have been in connection with the very circumstances which produced the injuries. The opinion then quotes with approval from Weeks v. McNulty, 101 Tenn. 495 (48 S.W. 809, 43 L.R.A. 185, 70 Am. St. R. 693), this language: "It must be shown that the negligence of the innkeeper in this case was the proximate cause of the fire and the consequent injuries." It further held that there was no rule of law requiring hotels to be constructed of any particular kind of materials. Subsequently this case was quoted with approval in Hays v. The Texan Inc. (1943, Texas Civil Appeals), 174 S.W.2d 1006, where the hotel building then under consideration was brick, though the elevator shaft from top to bottom was built of pine inflammable materials, and was so situated as to create a strong draft through the whole building, thereby causing a rapid spreading of fire on the occasion in question.

Where the courts have passed upon this question, their decisions have been predicated upon the basis that neither the use of the particular materials in the construction of a hotel building, nor the maintenance of its architectural arrangement, nor the absence of the maintenance of any service by the operators to prevent or extinguish fires, amounts to a want of ordinary care or diligence, and, therefore, such conduct does not show a violation of any duty to a person injured by reason of the burning of the hotel. The decisions also seem to hold that the proximate cause of the injury to a person on account of the building burning is the origination of the fire, and the manner of the construction of the building and the absence of service to prevent the fire from spreading do not become a proximate cause of the injury.

There are many precautions that the owner of a hotel building could take in its construction which would lessen the hazard of fire and increase the safety of its occupants; and there are various measures that the lessees and operators could install which would tend to minimize the probability of a fire and the danger to its guests should one occur. No one would doubt that such steps on the part of both would be wise precautions, but until some law-making body prescribes such expediences as a duty upon them, this court has no authority to declare their failure so to do as being negligence on their part.

6. Other grounds of demurrer which were sustained require no special elaboration. Grounds 12, 13, 14, 17, and 18 of the first demurrer were directed to allegations not germane or relevant to the relief sought. Grounds 5, 6, and 17 of the second demurrer were directed to a city ordinance relating to nuisances, and the allegations of the petition were not sufficiently specific to invoke the terms of this ordinance, even if the ordinance could be invoked in a suit of this kind, in view of the rulings inWestern and Atlantic Railroad Co. v. Atlanta, 113 Ga. 537 (38 S.E. 996, 54 L.R.A. 294).

7. The rulings on all the demurrers, both general and special, as set forth in the bill of exceptions, were contained in one order of the trial judge. This order allowed the plaintiff in the lower court ten days to amend to meet its terms. No amendments were filed for this purpose. However, under the rulings of the lower court, the necessity for amendment, in so far as the plaintiff in the lower court was concerned, would only have applied to instances where the demurrers were sustained, and not where demurrers were overruled. Accordingly, under the rulings in divisions two and three of the opinion, where the decision of the trial judge in overruling the demurrers is reversed, the plaintiff in the lower court should have the right to amend. Direction is therefore made that the trial judge by appropriate order give the plaintiff in the lower court an opportunity to amend to meet the rulings made in divisions two and three of this opinion.

On the main bills of exceptions in cases numbers 16076 and 16100, judgments affirmed in part, and reversed in part withdirection. All the Justices concur, except Duckworth, P. J.,Head, and Candler, JJ., who dissent in part from the rulings inthe 1st, 2d, and 3d headnotes and the corresponding divisions ofthe opinion. Jenkins, C. J., concurs specially in the ruling inheadnote 1 (b, 2) and the corresponding division of the opinion.On the cross-bills of exceptions in cases numbers 16097 and16101, judgments affirmed in part and reversed in part. All theJustices concur, except Atkinson and Wyatt, JJ., who dissent fromthe ruling in the 5th headnote and the corresponding division ofthe opinion.