Appellees in this case, without bringing themselves within the terms of the statute, question the validity of the contract. If the contention of appellees in this case is permitted to prevail, the effect of it will be that a man whose property is affected by a public improvement may stand by until he receives the benefit thereof, and, after the contractor and all public officials and other property owners have expended large sums of money, he may invoke the jurisdiction of the circuit or superior court in an effort to set aside the action of the governing tribunal of the city or town.

[2] The fact that original jurisdiction is lodged with city and town boards, together with the fact that the right of injunction and appeal from the board's action is given by the act itself, goes far to convince us that these were the only remedies intended by the Legislature. Section 8959, supra; Randolph v. City of Indianapolis, 172 Ind. 510, 88 N. E. 949; City of Indianapolis v. State ex rel. Barnett, 172 Ind. 472, 88 N. E.

687.

In the case of Everett et al. v. Deal et al., 148 Ind. 90, 47 N. E. 219, the court uses this language: "The contract was let April 13, 1896; and this action to enjoin the work was not brought until June 8, 1896, and after the work was begun. It was said in Alley v. City of Lebanon, 146 Ind. 125 [44 N. E. 1003], citing Robinson v. City of Valparaiso, 136 Ind. 616 [36 N. E. 644], also sections 4288-4299, Burns' R. S. 1894 (Acts 1889, p. 237, c. 118; Acts 1891, p. 323, c. 118) that an injunction might, in proper case, be had 'upon the proceedings prior to the making of any such (street or sewer) improvements'; but that, 'from the time that work begins under a lawful contract, vested rights attach; and the faithful completion of the work is placed by the law in custody of the city authorities, chosen by the people and clothed with power to care for the common welfare.""

Many other questions are discussed, including the alleged errors on the sustaining of the demurrers to eight paragraphs of answer, but in view of the conclusion reached by the court it is unnecessary to pass upon them.

It may be suggested that appellees were not parties to the original contract. Their interest in the matter is incident to their property being assessed with benefits. We suggest, without deciding, that they have not such an interest in the original contract as entitles them to have the whole contract declared void. Their remedy would be an appeal or a suit by injunction as provided by the terms of the statute as above set out. Judgment reversed, with instructions to sustain appellants' demurrer to each paragraph of the complaint.

(54 Ind. App. 643)

STEIERT v. COULTER et al.1 (No. 8,009.) (Appellate Court of Indiana, Division No. 1. June 3, 1913.)

1. NEGLIGENCE (§ 31*) - FIRES STATUTORY REQUIREMENTS.

Act March 10, 1903 (Burns' Ann. St. 1908, $ 3841 et seq.), which attempts to protect human life from fire, refers by section 1 to public buildings of various kinds and to every building in which persons were employed above the second story in a factory, workshop, etc., and provides by section 6 that the owner of any building described in the act, who neglects or refuses to comply with its provisions as to fire escapes, shall be subject to fine and imprisonment, and in case of fire occurring in such building, in the absence of such fire escapes, shall be liable to a penalty of $5,000 for death and for damages for personal inentitled an act to provide for the protection of juries not causing death. Act 1909, c. 118, human life from fire, expressly repealing the act of 1903, refers by section 1 to the same kinds of buildings, and by section 6, which contains substantially the provision of the earlier section 6, limits its application to owners, lessees, or occupants of hotels, etc. Held that, as section 6 was highly penal, it was the evident intent of the latter act to limit the application of the penal provision of the act and to leave the question of civil damages to be governed by the general law on that subject as declared by the decisions of the court. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 50; Dec. Dig. § 31.*] 2. STATUTES (§ 225*)-CONSTRUCTION-LEGIS

LATIVE KNOWLEDGE OF EXISTING LAW.

The Legislature is presumed to be acquainted with the existing law and, in legisvisions, statutory or otherwise, and also the lating on any subject, to have in view its proconstruction placed thereon by the courts.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 302, 303; Dec. Dig. § 225.*] 3. NEGLIGENCE (§ 6*)-VIOLATION OF STATUTORY DUTY-LIABILITY.

of such duty, which is the proximate cause of Where a statute creates a duty, a violation an injury to one to whom it is owing, creates a liability in his favor, provided he is not guilty of negligence contributing to such injury.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 8; Dec. Dig. § 6.*1

4. NEGLIGENCE (§ 119*)-COMPLAINT—ALLEGATIONS OF NEGLIGENCE.

A complaint in an action under Act 1909, c. 118, entitled an act to provide for the protection of human life from fire, and requiring certain fire escapes, etc., which contained a general charge of negligence in failing to provide fire escapes, coupled with the allegations of ownership, stated a cause of action in terms broad enough to admit proof showing the duty and its violation.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. § 119.*] 5. NEGLIGENCE (§ 111*)-COMPLAINT-PROXI

MATE CAUSE OF INJURY.

In an action under Acts 1909, c. 118, providing for the protection of human life from fire and requiring owners, etc., to furnish prescribed fire escapes, etc., allegations that defendant was the owner of the three-story building in which plaintiff was employed, as known to defendant, and that he negligently fire starting reached the stairways on the infailed to provide it with fire escapes, that a side of the building and cut off that only

and is highly penal. If the section only pro-1 vided for civil damages, there would be more force to appellee's contention.

The Legislature, in passing the later act, evidently intended to limit the penal provisions specified in both acts to the persons named in the later act; but it does not follow that it intended to cut off all right to civil damages occasioned by a violation of the duty enjoined upon persons other than those named in section 6 of the act of 1909. It is a more reasonable presumption that the Legislature intended to limit the application of the penal provisions of the act and to leave the question of civil damages, except in the cases specified, to be governed by the general law on that subject, as already declared by the decisions of the courts of this

state.

[2] The Legislature is presumed to be acquainted with the existing law, and, in legislating on any subject, to have in view its provisions, either statutory or otherwise, and in the construction placed thereon by the courts. Sutherland on Statutory Construction, vol. 2 (2d Ed.) §§ 355 and 499; City of Rushville v. Rushville Natural Gas Co., 132 Ind. 575-581, 28 N. E. 853, 15 L. R. A. 321.

In Monteith v. Kokomo Enameling Co., 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944, our Supreme Court had under consideration a case involving an injury to an employé while operating an unguarded circular saw. The court held the complaint to be under the statute requiring certain machinery to be guarded and said: "The act does not in terms give a right of action to the person injured, nor is any part of the penalty recoverable by, or payable to, such person. The general rule is that when a statute requires an act to be done by one person for the benefit of another, and an injury is sustained by one intended to be protected by reason of a violation of such statutory duty, an action lies in favor of the latter against the former for the neglect to perform such duty, even though the statute gives no special remedy." See, also, Rose v. King, 49 Ohio St. 213, 30 N. E. 267-269, 15 L. R. A. 160; Pauley v. Steam Gauge, etc., Co., 131 N. Y. 90, 29 N. E. 999, 15 L. R. A. 194-197.

[3] It has been held in this state many times that, where a statute creates a duty, a violation of such duty, which is the proximate cause of an injury to one to whom the duty is owing, creates a liability in his favor, provided he is not guilty of negligence contributing to such injury. Indiana, etc., R. Co. v. Barnhart, 115 Ind. 399-411, 16 N. E. 121; Nickey v. Steuder, 164 Ind. 189-191, 73 N. E. 117; Indland Steel Co. v. Yedinak, 172 Ind. 423-427, 87 N. E. 229, 139 Am. St. Rep. 389; Princeton Coal Mining Co. v. Lawrence (Sup.) 95 N. E. 423-427; Mortimer v. Daub, 98 N. E. 845-847; Fox v. Barekman

[4, 5] This complaint shows that appellant was rightfully in the tailor shop on the third floor of the building at the time the fire occurred. Therefore, whatever duty the law enjoins upon the owner with reference to fire escapes for such building was duty to the appellant as such occupant. Princeton Coal Mining Co. v. Lawrence, supra. Appellee also insists that the complaint is insufficient to show that appellees, as owners, chargeable with such duty, if any exists. The complaint alleges that they were the owners; that they knew the use that was made of the third story and consented thereto and negligently failed and neglected to provide the means of egress and fire escapes required by the statute. This is sufficient as a matter of pleading. The general charge of negligence in failing to provide fire escapes, coupled with the allegation of ownership, states a cause of action in terms broad enough to admit proof showing the duty and its violation by appellee. L. E. & W. Ry. Co. v. Moore, 42 Ind. App. 32, 81 N. E. 85, 84 N. E. 506, and cases cited. If the proof failed to show such duty or its violation, there could be no recovery, even though an injury was proven.

The complaint is also sufficient to show that the absence of external fire escapes on the building was the proximate cause of appellant's injury, so that the correctness of the trial court's action in directing a verdict depends upon the meaning of sections 1 and 2 of the act of 1909.

Section 1 requires rooms above the second story in the buildings mentioned therein to be "provided with more than one way of egress or escape from fire, placed as near as practicable at opposite ends of the room and leading to fire escape on the outside of such buildings or to stairways on the inside, provided with proper railings."

Section 2 provides that (page 303, Act 1909): "In addition to the foregoing means of escape from fire, all such buildings as are enumerated in section 1 of this act as are more than two stories in height shall have one or more fire escapes on the outside of said building, as may be directed by the fire chief aforesaid, except in such cases as the said fire chief may deem such fire escape to be unnecessary in consequence of adequate provisions having been already made for the (sic) safety in event of fire, and in such cases of exemption the said fire chief shall give the owner, lessee or occupant of said building a written certificate to that effect and his reasons therefor, and such fire escapes as are provided for in this section shall be construed according to specifications issued by (the) state department of inspection and accepted by the chief inspector, or approved by the fire chief, and shall be connected with each floor above the first.

Appellees insist that the owner, lessee, or

ing the rule of strict construction, the legislative intention is apparent from the fact itself, it will be carried into effect. Arms v. Ayer, 192 Ill. 601, 61 N. E. 851, 58 L. R. A. 277-284, 85 Am. St. Rep. 357; Greenbush Cemetery Ass'n v. Van Natta, supra, 94 N. E. 902.

We think it fairly appears from the complaint that there were two inside stairways leading from the third story of the building, and that the pleading must be tested with this fact, or necessary inference, considered as one of its allegatoins. We cannot, however, agree with appellees' construction of the second section of the act. The statute is by no means a model in phraseology and clearness. However, the title of the act and the contest of its several sections, considered together, give a very clear idea of the intention of the Legislature.

[6] If the meaning of an act is doubtful, the title, if expressive, may serve the purpose of removing the doubt either by extending the purview of the body of the act or by restraining or limiting it to the evident intention of the Legislature. Sutherland on Statutory Construction, vol 2. (2d Ed.) § 340; City of Rushville v. Rushville Natural Gas Co., supra, 132 Ind. 582, 28 N. E. 853, 15 L. R. A. 321.

[7] If two constructions are possible, that one should be adopted which makes effectual, rather than one which defeats, the purpose of the law. Greenbush Cemetery Ass'n v. Van Natta, 94 N. E. 899-902.

[8] The legislative intention is to be kept in view in construing and applying any statute. If the language is unambiguous, the intention expressed thereby must be carried into effect.

[9] The legislative intent, however, is to be ascertained by an examination of the whole, as well as the separate parts of the act, and, when so ascertained, the intention will control the strict letter of the statute or the literal import of particular terms or phrases, where to adhere to the strict letter or literal import of terms would lead to injustice, absurdity, or contradict the evident intention of the Legislature. U. S. Saving U. S. Saving Fund, etc., Co. v. Harris, 142 Ind. 226-231, 40 N. E. 1072, 41 N. E. 451; Greenbush Cemetery Ass'n v. Van Natta, supra, 94 N. E. 902. [10] It is further contended that the statute is in derogation of the common law and must be strictly construed; that at common law there was no liability against the owner of a building for failure to provide fire escapes. Conceding this to be the rule, it

[11] Keeping in view the purpose of the

and seeking to so construe it as to make it a workable and effective law to carry out the legislative intent, we may, without doing violence to any of its provisions, hold that section 2 of the act of 1909, in addition to the provisions of section 1, requires the buildings mentioned in section 1, more than two stories in height, to have one or more fire escapes on the outside of the building of the kind and number directed by the fire chief, and that, in the absence of such fire escape the owner or other responsible person must have the certificate of the fire chief stating that such additional outside fire escapes are unnecessary, because of other adequate means of escaping from the building in case of fire, and must therein state his reasons for such decision. Furthermore, all fire escapes contemplated by this act are to be constructed according to specifications issued by the state department of inspection and are to be accepted by the chief inspector or approved by the fire chief. The latter clause is somewhat ambiguous and indicates the possibility of a conflict of authority between the chief inspector of the state department and local fire chiefs; but the evident intention of this act and the law creating the state bureau of inspection (Act 1911, P. 553) is to give the state inspector and his authorized deputies superior authority and ultimate control of all matters which by law come under the supervision of that department.

It is the statute and not the fire chief that commands the owner commands the owner or other responsible persons to provide additional fire escapes as specified in section 2 of the act. Therefore the contention of appellees that the failure of the fire chief to give notice or to designate the number or kind of such fire escapes will excuse the owner, or lessee, from providing outside fire escapes cannot be sustained. Such persons, to comply with the law, must either provide outside fire escapes or have the aforesaid certificate of the fire chief. Arms v. Ayer, supra; Carrigan v. Stillwell, 97 Me. 247, 54 Atl. 389, 61 L. R. A. 163, 166.

In Rose v. King, supra, it was contended that the act could not apply so as to create a liability against the owner for neglect to comply with its provisions, because it was not shown that the mayor had given the notice to the owner required by the statute, and the court said: "To make the liability of the negligent owner to the injured, though