of evidence prescribing the force and effect of facts intended to prove or disprove the ultimate facts necessary to constitute fixture; thus, if an article has been annexed to the realty, and so fastened and connected with it that the article cannot be severed and removed without material injury to itself and the realty, or to the realty alone, this is a fact which the law deems conclusive evidence (at least in the absence of contract) that the article was intended to become a permanent accession to the realty, and therefore it is a fixture;10 but if the article can be removed without material injury, the fact that it is very securely fastened will not amount to conclusive evidence of intention, but will be some evidence in connection with other circumstances; if the article requires, in order to operate it, that it be securely fastened, the mere fact of it being fastened will not amount to any evidence of intention, if the article may be removed without material injury;12 if the article was annexed by one other than the owner of the land, this fact is evidence of intention not to constitute a permanent accession to the realty.18 The reason for this rule is apparent. If the article was annexed by the owner of the realty, this fact is evidence of intention to constitute a permanent accession to the realty.14 The purpose for which the article was annexed, as for trade, agriculture or domestic use, is also evidence of intention.15 So, too, the nature of the article itself. ¡6 Besides the circumstances above mentioned, the intention may be shown by other circumstances, which may be as various and numerous as the cases themselves. But because of the number and variety of the circumstances by which the intention is proved, can it be said that the law of fixtures is irreconcilable? We may as well affirm that because of the number and variety of the circumstances by which the crime of murder is proved, that the law of murder is irreconcilable.

10 Ewell, Fix., 93; Hill v. Wentworth, 28 Vt. 433; Wade v. Johnston, 25 Ga. 336.

1 Ewell, Fix., 99.

12 Carpenter v. Walker, 5 N. E. Rep. 160.

13 Hill v. Sewald, 53 Pa. St. 274; Teaff v. Hewitt, 1 Ohio St. 530, 531.

14 Arnold v. Crowder, 81 Ill. 60, citing Smith v. Moore, 26 Ill. 392; Leonard v. Stickney, 131 Mass. 542. 15 Van Ness v. Packard, 2 Pet. 137; Elwes v. Maw, 3 East, 38; Seeger v. Pettit, 77 Pa. St. 437.

16 2 Jones, R. P., p. 547.

One of the sources of error and confusion is, the great consideration that has been given to the question of the "degree of annexation necessary to constitute a fixture," as if the degree of annexation had much to do with the constitution of a fixture; whereas the degree of the annexation has nothing to do with the constitution of a fixture, but is merely evidence of one of the elements necessary to constitute a fixture, viz., intention." There can be no doubt that the article, no matter what its nature or use, must in some way be placed in contact with the realty or some part of it, to constitute one of the elements of a fixture, viz., annexation. But it is equally true that no degree of annexation will constitute a fixture in the absence of the other element; though if the article be annexed to such an extent that it cannot be removed without material injury, the law will conclusively presume the intention to make the article a permanent accession to the realty; and as before stated the manner and mode of annexation will, perhaps in all cases, afford some evidence of intention.

In considering the law of fixtures we must distinguish between the essential elements of a fixture, i. e., annexation and intention, and the facts or circumstances by which the existence of these elements are proved. Thus it is often said in the reports and by text writersthat the "tests" or "criterion" of fixtures are the nature of the article annexed, the manner and mode of the annexation, the relation of the parties, the intention with which the article was annexed, and many other circumstances which are often enumerated. Almost without exception we will find the ultimate fact to be proved, that is the intention, classed with facts (and apparently not distinguished from them), which are material only because they tend to prove the ultimate fact. In this connection we will notice the language, first laid down in Ohio,18 and since reiterated with approval in a large number of cases. 19 The court says: "The following requisites will be found the safest criterion of a fixture: 1st. Actual annexation to the realty, or something appurtenant thereto. 2d. Appropriation to the use or purpose of that part of the realty with which it is connected. 3d. The intention

17 Fortman v. Goepper, 14 Ohio St. 567; Teaff v. Hewitt, 1 Ohio St. 535.

18 Teaft v. Hewett, 1 Ohio St. 511.

19 Honeyman v. Thomas, 36 Pac. Rep. 636.

of the party making the annexation to make the article a permanent accession to the freehold; this intention being inferred from the nature of the article affixed; the relation and situation of the parties making the annexation, the structure and mode of annexation, and the purpose and use for which the annexation has been made." It seems to me that the appropriation to the use or purpose of that part of the realty with which the article is connected is merely evidence of intention, and ought to be classed with those circumstances by which the element of intention is proved, and not as one of the elements necessary to constitute a fixture. When an article is intended to become a permanent accession to the realty, the existence of the second "criterion" above stated will, perhaps, always be found, but I believe it is not neces sary to constitute a fixture, as we may conceive of cases where an article would be a fixture in its absence. Recurring to the question of annexation, I will state that there are no cases which decide that an article may be a part of the realty, on the principle of fixtures, where there is only a constructive annexation, meaning by the term "constructive annexation" that the courts will sometimes construe an article to be actually annexed to the realty, which in fact is totally disconnected. It is often said in the reports that "actual or constructive annexation is necessary to constitute a fixture," but it will be found that the courts mean by the term "constructive annexation" slight actual annexation, or that the article is not fastened to the realty, but annexed by its weight only.20 The rule requiring actual annexation is not affected by those cases where mere loose movable machinery has been held to be part of the realty, because, I believe, it will always be found that the articles in question were actually annexed, at least by their own weight; where they are found to be totally disconnected, and in no way touch the realty, they are held not to be fixtures, as in Walker v. Sherman.21 But the authorities are generally

20 Hinkley & Egery Iron Co. v. Black, 70 Me. 479; Snedeker v. Warring, 12 N. Y. 170; Stockwell v. Campbell, 39 Conn. 362. And see Teaff v. Hewitt, 1 Ohio St. 511, as to things which are chattels in their nature, but which are by custom invested with some of the legal attributes of things real and pass with the realty, but not upon the principle of fixtures. 21 20 Wend. 636.

23

We

hostile to the idea of mere loose, movable machinery being considered part of the freehold;22 that is to say, the courts will from the vary nature of such articles presume that they were not intended to become permanent accessions to the realty, unless they are fixed or fastened thereto, or the intention affirmatively appears from other circumstances. Although the annexation must be actual, in order to constitute one of the elements of a fixture, the other element, the intention, may, and often will be implied, in disregard of the actual intention.2 If the principles which I have attempted to point out are observed, no such perplexing questions as the following can arise: "What constitutes annexation?" "What degree of annexation is necessary to constitute a fixture?" If these principles are applied to the cases we shall find that they harmonize nearly, if not all of them. shall be no longer justified in making such statements as the following, found in the works of two eminent authors: "In order to constitute a fixture the article must be let into the ground, or otherwise fastened; mere juxtaposition is not sufficient,"24 and, "among the cases, however, requring actual, physical annexation as one of the essential elements of a fixture, there is an irreconcilable diversity of opinion as to the requisite degree thereof necessary to constitute a fixture. Thus, some of the cases require the chattel to be substantially annexed to the freehold in such a manner as not to permit it to be separated from it without material injury to itself or the freehold. In others the slightest annexation has been held sufficient. While still another class of authorities reject entirely the doctrine that physical annexation is a necessary attribute of a fixture. ''25 It is said in Central Branch Rld. Co. v. Fritz26 that "the question whether a given thing is a part of the realty, or not, depends upon so many questions that many of the decisions would seem to a superficial observer, to be inconsistent and contradictory; and yet nearly all of such decisions may be

22 Coal v. Roach, 37 Tex. 418.

23 Hopewell Mills v. Taunton Savings Bank, 150 Mass. 522, 23 N. E. Rep. 330; Nat. Bk. of Catasauqua v. North, 160 Pa. St. 303, 28 Atl. Rep. 696; Davis v. Mugan, 56 Mo. App. 318; Hinkley & Egery Iron Co. v. Black, 70 Me. 480.

24 Ferard, Fix., 2.

25 Ewell, Fix., 15.

26 20 Kan. 435.

an

harmonized." I only mention this case because it is the only one that has come to my notice, where it is thought at all possible to harmonize the decisions. Yet I do not think they could be harmonized on the principles laid down in this case. It cannot be said that the authorities are conflicting, so far as the law of fixtures itself is concerned, because the conclusions reached in similar or even identical cases (if any two cases can be identical) are different. By way of illustrating this proposition we will suppose a case. A tenant, for purposes of trade, annexes article to the realty; the article is in some manner fastened or affixed to the realty; the tenant undertakes to sever and remove the article before the expiration of his term; the landlord procures an injunction; the question for decision is whether the article is real or personal property, from which the right, or absence of the right of removal is inferred. The law presumes from the fact that the article was annexed by a tenant for purposes of trade, that it was not intended to become a permanent accession to the realty; this fact appearing, and no other, all the courts hold the article to be personal property and removable by the tenant. But the presumption of intention not to constitute a permanent accession to the realty, arising from the fact that the article was annexed by a tenant for purposes of trade, is capable of being rebutted by a counter-presumption, arising from the fact that the tenant annexed the article in such a manner that it cannot be removed without material injury to the realty. The whole question then, is, whether the article can be removed without material injury, which may be decided either way without rendering the law of fixtures unharmonious, if for no other reason than the question of what constitutes material injury is a mixed question of law and fact not peculiar to the law of fixtures. 27 Topeka, Kan. ARTHUR W. CANTWELL. 27 Friedlander v. Rider, 47 N. W. Rep. 84.

INNKEEPERS-LIABILITY-FIRE.

WEEKS v. MCNULTY.

Supreme Court of Tennessee, November 12, 1898. 1. An innkeeper is not an insurer of a guest against Injury, but is merely bound to exercise reasonable care that he be not injured through his negligence.

2. In case of a fire in an inn, by which a guest is burned, there is no presumption that it was due to negligence of the proprietor.

3. Failure of an innkeeper to put fire escapes on the building, as required by an ordinance, does not ren. der him liable for death of a guest, who perished in a fire therein, it not being shown that he was at a window or in any position where a fire escape would have afforded him any benefit; there being evidence that he had locked himself in his room, and was heard beating on his door, trying to make his escape, and one of the windows of his room having overlooked another building, onto the roof of which he could have safely leaped, and thereby have escaped, as others similarly situated did.

MCALISTER, J.: Plaintiff brings this suit to recover damages for the death of her husband, Arthur E. Weeks, which is alleged to have been occasioned by the negligence of the defendants. The grounds of liability alleged in the declaration are: First, that defendants were owners and proprietors of the Hotel Knox, a public inn in the city of Knoxville, and had negligently permitted said hotel to be in an unsafe and dangerous condition; and, second, that defendants had not employed a sufficient complement of servants for the protection of the hotel and guests; and, third, that the servants employed were incompetent, whereby said hotel was, on April 9, 1897, destroyed by fire, and plaintiff's intestate, Arthur E. Weeks, who was a guest therein, lost his life. The more specific grounds of negligence are stated in the second count of the declaration, viz.: That defendants had failed to provide fire escapes, as ordered by an ordinance of the city of Knoxville, or other reasonable means of escape from said building; that defendants failed to arouse deceased, or give him proper warning of said fire, and that this failure was due to defendants' omission in not employing a responsible watchman. It is further alleged that the fire was caused, and said hotel destroyed, by the negligence of defendants in allowing the cellar of the storehouse, which was situated next door to said hotel, to be filled with inflammable material. Defendants pleaded not guilty. The case was tried by a special jury, to whom a large volume of testimony was submitted. The trial resulted in a verdict and judgment for defendants. Plaintiff appealed, and has assigned errors.

The facts necessary to be stated are that the defendant Frank McNulty was the owner and proprietor of a public inn in the city of Knoxville, known as "Hotel Knox." Plaintiff's intestate, Arthur Weeks, was a traveling man, representing the Rochester Stamping Works and the Robinson Cutlery Company, of Rochester, N. Y. On the evening of April 7, 1897, said Weeks reached the city of Knoxville, registered at the Hotel Knox, and was assigned to room 49 on the third floor. About 3 o'clock in the morning following. Hotel Knox was destroyed by fire, and said Weeks perished in the flames. The fire was first discovered by the night watchman of the hotel, who immediately gave the alarm, ascended the

stairway leading to the second and third floors. knocked upon the doors, and made every effort to arouse the guests. It is in proof that the guests were all aroused and escaped, excepting deceased and one other. It is in evidence that one of the guests, as he passed out, heard some one in 49 pounding at the door, and noticed that he had kicked out one of the panels. If this evidence is to be credited, it tends to show that deceased heard the alarm, but bad unfortunately fastened himself in, or, in the excitement, had lost all command of his faculties. It is also shown that parties occupying rooms on the same floor with deceased, immediately contiguous, and across the ball in opposite and diagonal directions, all received the alarm, and succeeded in making their escape. The building was provided with a front and rear stairway, but had no fire escapes. South of the Hotel Knox, and immediately adjoining, was the banking house of the Third National Bank. which being only one story in height, several of the guests leaped upon its roof from the burning hotel building. This mode of escape was accessible to deceased, since his window overlooked the roof, but it is not shown he had knowledge of it.

The general rule of law governing the liability of an innkeeper is that he is not an insurer of the person of his guest against injury, but his obligation is merely to exercise reasonable care, that his guest may not be injured by anything happening through the innkeeper's negligence. 11 Am. & Eng. Enc. Law, p. 32. There is no natural presumption," said this court, "that a fire, the origin of which is unknown, was the result of the want of care of the owner or occupant of the premises. The ancient rule of the common law, which presumed negligence in such cases, was pronounced in the reported cases to be harsh and unreason. able, and was by St. 6 Anne, ch. 31, abrogated. The courts of this country, whether regarding the statute of Anne as in force or not, have unanimously held that negligence or misconduct was the gist of the action against one upon whose premises a fire had originated, and that such negligence would not be presumed from mere proof of the loss by fire communicated from the premises of another." Louisville & N. R. Co. v. Manchester Mills, 88 Tenn. 659, 14 S. W. Rep. 314. It must be shown that the negligence of the innkeeper in this case was the proximate cause of the fire and the consequent injuries. Deming v. Storage Co., 90 Tenn. 353, 17 S. W. Rep. 89; Railroad Co. v. Kelly, 91 Tenn. 699, 20 S. W. Rep. 312; Cable Co. v. Zopfi, 93 Tenn. 374, 24 S. W. Rep. 633. We understand these principles were substantially charged by the circuit judge, and the issues of fact have been resolved by the jury in favor of the defendants. We find material evidence in the record to sustain their findings, and, under the rule, the verdict cannot be disturbed on this assignment.

The third assignment is that the court erred in excluding testimony showing that defendant

McNulty had stored in the rear of the grocery store, on the ground floor and near the elevator shaft, oils and other combustible materials. Counsel is in error in his statement of the action of the court. The grocery store, it appears, adjoins the hotel, and is situated just north of it. It was owned by McNulty, the proprietor of Hotel Knox. The object of this inquiry was to show that defendants had been guilty of negligence in storing oils and other inflammable substance on the ground floor of the grocery store near the elevator shaft. This testimony was excepted to by defendants on the ground that no such negligence was alleged in the declaration. The negligence alleged was that defendants had permitted the hotel to be in an unsafe and dangerous condition, and that they had filled the cellar with inflammable materials, but there was no allegation of negligence in storing oils and other combustible material in the grocery store on the floor above the basement. Moreover, it seems defendants were permitted to prove that coal oil was kept in the grocery store, but when the question was asked how near the coal oil was kept to the elevator shaft, an objection was interposed by defendants' counsel, which was sustained by the court. If it be conceded that the action of the court in sustaining the objection was erroneous, it is not shown in the bill of exceptions what the witness would have answered. It has been frequently held by this court that the refusal of the trial court to permit answers to pertinent questions affords no cause for reversal unless the record shows affirmatively that the answers would have been competent and material evidence. Telegraph Co. v. Barnes, 95 Tenn. 271, 32 S. W. Rep. 207; Holmark v. Molin, 5 Cold. 484; State v. Turner, 6 Baxt. 203.

The fourth assignment is that the court erred in excluding the ordinance of the city of Knoxville requiring the owners and keepers of hotels to erect fire escapes thereon. The objection offered to this testimony was that the ordinance in question contemplated that notice to erect fire escapes must be given to the owner of the property by the board of public works, and that no such notice was given to the owner and proprietor of Hotel Knox. The declaration, as already observed, alleged that defendants had failed to provide fire escapes for Hotel Knox, "as ordered by an ordinance of the city of Knoxville." The insistence of counsel for defendants is that this ordinance contains no absolute requirement for the construction of fire escapes, but only provides that the same may be required by the board of public works if in their judgment they are deemed necessary. It is further insisted that, under the ordinance, the supervision, control, and direction of everything pertaining to fire escapes. including the number. locality, strength, capacity, and mode of structure, are committed to the board of public works, and that no plans or directions were ever furnished defendants by said board. It is insisted, however, that failure to

it

comply with even an absolute requirement of a municipal ordinance in the erection of fire escapes will not render the delinquent party liable to a civil action for damages resulting from such neglect, especially where the ordinance provides a penalty, and does not provide on its face for the civil liability. It is conceded that a civil action will lie for an act done in violation of a prohibitory State law. Queen v. Iron Co., 95 Tenn. 458, 32 S. W. Rep. 460. But it is insisted that a different rule prevails when the act done is in violation of a city ordinance. This precise question was left open and undecided by this court in Schmalzried v. White, 97 Tenn. 45, 36 S. W. Rep. 393. It was held in Osborne v. McMasters (Minn.), 41 N. W. Rep. 543, where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty, he is liable to those for whose benefit or protection it was imposed, for any injuries of the character which the statute or ordinance was designed to prevent, and which were proximately produced by such neglect. In Bott v. Pratt, 33 Minn. 323, 23 N. W. Rep. 237, i was held that where a city ordinance, in pursuance of the charter, makes it unlawful to leave a team standing unfastened or unguarded in a street, anyone injured by a violation thereof may maintain an action against the wrongdoer. In Salisbury v. Herchenroder, 106 Mass. 458. it appeared that defendant had suspended a sign over a street in Boston, in violation of a public ordinance of the city. During an extraordinary gale the sign was blown down, and a bolt, part of the fastenings, was hurled against plaintiff's window, causing damage, for which action was brought. Held, that defendant was liable, notwithstanding due care was exercised in constructing and fastening the sign. The reason was that the defendant had placed and kept the sign there illegally, and this illegal act contributed to plaintiff's injury. In Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. Rep. 369, the action was to recover damages for personal injuries alleged to have been sustained by the plaintiff, a boy eight or nine years old, who lost his arm by being run over by one of the defendant's cars. The particular negligence charged in the declaration was the omission of the railroad company to build a fence on the west line of its right of way, as required by an ordinance of the city of Chicago. The court held that an ordinance passed in pursuance of legislative authority has the force of law within the limits of the city; and although in case of injury to persons by reason of the failure of the company to erect such fence, such default is not conclusive of liability irrespective of contributory negligence by plaintiff, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence, "The duty," says Mr. Justice Matthews, "is due. not to the city as a municipal body, but to the public, considered as composed of individual persons, and each person specially injured by the breach of

the obligation is entitled to his individual compensation and to an action for its recovery. The nature of the duty,' said Justice Cooley, in Taylor v. Railroad Co., 45 Mich. 74, 7 N. W. Rep. and the benefits to be accomplished through its performance, must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit."" We are aware there is a line of cases which holds that when the duties enjoined by ordinance are due to the municipality or to the public at large, and not as composed of individuals, the rule is different, and an action will not lie for a breach of the ordinance. In many cases of the latter class it was held that the owners of land abutting on streets were liable to the city alone for the breach of ordinances requiring such owners to keep sidewalks clear of snow and ice and in good repair, and that they were not liable in damages to persons injured by their neglect to perform the duties enjoined by such ordinances. These cases, it is said, proceed upon the ground that it is the sole duty of the city to keep the streets in good repair and clear of snow and ice.、 See Flynn v. Canton Co., 40 Md. 312; Heeney v. Sprague, 11 R. I. 456; Vandyke v. City of Cincinnati, 1 Disn. 532, Railroad Co. v. Ervin, 89 Pa. St. 71. An ordinance which a municipal corporation is authorized to make is as binding on all persons within the corporate limits as any statute or other law of the State, and all persons interested are bound to take notice of its existence. Bott v. Pratt, 33 Minn. 328, 23 N. W. Rep. 237; Heland v. City of Lowell, 3 Allen, 407; Vandine's Case, 6 Pick. 187; Gilmore v. Holt, 4 Pick. 258; Johnson v. Simonton, 43 Cal. 242, 249. The duty to erect fire escapes required by this ordinance is not due simply to the municipality or public at large, but was a regulation designed for the peculiar benefit and protection of individuals. It is well settled that, when a statute commands or prohibts a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his benefit, or for a wrong done him contrary to its terms. Queen v. Iron Co., 95 Tenn. 463, 32 S. W. Rep. 460; Pauley v. Lantern Co., 131 N. Y. 90, 29 N. E. Rep. 999; Willy v. Mulledy, 78 N. Y. 314. We do not, however, decide the effect of the breach of an ordinance in fixing civil liability, nor do we adjudicate the proper construction of the ordinance offered in evidence, since neither question is necessarily involved in this case, for the following reason, namely: There is no proof in the record even tending to show that the deceased lost his life in consequence of the failure to construct fire escapes as provided by the city ordinance. The principle is recognized in all the cases that a liability cannot be predicated alone upon the breach of an ordinance, but it must affirmatively appear that the injury sustained resulted proximately from said breach. In Queen v. Iron Co., supra, we said: "So we