Opinion
No. 28177.
December 18, 1951.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Leo F. Laughren, John H. Martin, St. Louis, for appellant.
Marvin E. Boisseau, St. Louis, for respondent.
This action was brought by H. B. Deal Co. to restrain the defendant, building commissioner of University City, from interfering with the construction of certain houses that the company was engaged in building. The defendant in his answer alleged that the plaintiff had constructed and was constructing houses in a manner that violated the ordinances of the city and asked for a mandatory injunction, requiring the plaintiff to install a fire wall in the basements of the buildings. The court found for the defendant and by mandatory injunction directed the plaintiff to make the installations requested in the defendant's answer. It is from this decree that the plaintiff in due course appealed.
In Lawrence Park, a subdivision of University City, the defendant constructed seventy-two houses which were all built upon the same basic plan. Each contains a living room, kitchen, dinette, two bedrooms, and a bath room. The walls are of concrete blocks covered with an exterior brick facing and the interior partition walls are of steel studding and metal laths covered with plaster. All of the doors are of hollow steel construction except the front and back doors, which are of wood. The basements, about which this controversy centers, were built to serve as garages. The walls of the garages are of concrete and are eight inches thick. The floors are of concrete and the ceilings of each garage, or the floors of the living quarters, are made of steel bar joists over which were laid high rib steel laths covered with two and one-half inches of concrete. The stairs that lead up from the basements are all steel with steel landings at the top and metal doors opening to the living quarters. These basements are 31 feet 7 inches long by 23 feet 5 inches in width, and have wooden doors at the entrance afforded for automobiles. In each basement there is a gas furnace, an automatic water heater and hot and cold water outlets. Most of the basements have the water heaters and the furnaces near walls, but there seems to be no uniformity as to where these were placed.
The plaintiff's evidence was that building permits had been issued for the construction of all the buildings, and that all of them were built in accordance with plans submitted to defendant building commissioner. There was evidence that the plans had been approved by the commissioner and that the erection of the buildings had been continuous from August, 1946, to April 3, 1948. On that date there were twenty-one of the houses still incompleted and the building commissioner caused notices to be posted on them which stated that work was to be discontinued for the reason that the construction was not in accordance with the ordinances of the city of University City.
There was an ordinance in effect when the construction work first started, which provided: "A private garage housing not more than two motor vehicles may be located within a dwelling housing not more than two families, provided the garage is separated from the balance of the building, with walls, partitions and floors enclosing it having a fire resistance rating of not less than one hour, as approved by the National Board of Fire Underwriters."
Shortly after the buildings were started a new ordinance was adopted and became effective on the 23rd of October, 1946. It provides, in section 1304, para. 2:
"(a) No private garage shall be hereafter located within or attached to a building occupied for any other purpose unless it is separated from such other occupancy and the walls, partitions and floors composing it have a fire resistance rating of not less than one hour.
"(b) Walls and partitions which effect such separation, and all floors and ceilings shall be continuous and any door in such separation shall be covered on the garage side with metal or other incombustible material approved for protection against fire, or such doors may be flush panel wooden doors not less than one and three eights inches thick."
University City had no code in effect relating to electrical fixtures and equipment until January 1, 1948. Prior to that time all electrical work was inspected by the St. Louis Fire Prevention Bureau and upon approval by this bureau the public utility company supplied current for the houses approved. After January 1, 1948, the city's own code became effective and an inspector was appointed. He made inspections of forty-six of the houses which were then still under construction. The gas heating equipment, while all enclosed within the usual metal furnace, contained within each unit an electric motor. The installation of this apparatus was closer to the floor than permitted under the code for garages, and the motor is of a type which the code prohibits from being installed in garages. As the houses were completed they were sold and a "certificate of occupancy" was issued by the city.
There was introduced in evidence an advertising pamphlet put out by the builder at the time the houses were being built. This pamphlet stated the number of rooms the house would contain and continued: "According to the plans, space will be provided for one or two cars in the basement, with easily operating overhead doors." Pictures of some houses other than those built by the plaintiff were put in evidence and these photographs show basement garages without fire walls separating them from the balance of the basement.
The defendant testified that he never approved the plans submitted, but had told the plaintiff that a fire wall was necessary and had indicated it upon the plan by a colored pencil mark. The building inspector for the city testified that he was instructed by the building commissioner to see that fire walls were built in the basements. He said that since such walls are not bearing walls they could be constructed at any time after the completion of the basement and he did not know that the plaintiff was not going to build the walls until the first house was completed and occupied. There was testimony that the basements were being used in some cases as laundry rooms, workshops, or rathskellers, in addition to garaging cars. But the plaintiff's evidence was that the whole basement was designed for garage purposes although it did have considerably more space than was necessary for the housing of two automobiles.
As to the twenty-one houses unsold at the time this suit was brought, the parties had agreed that the city would issue certificates of occupancy for them and that they might be sold pending the determination of this suit, and the builder had agreed and the purchaser also consented and agreed that in the event it was decided a fire wall should be installed such a wall would be constructed in each of the twenty-one houses by the plaintiff. The lot, block number and street number of these houses was in evidence.
The plaintiff first contends that it has not violated the building ordinances because the garage is admittedly located in a fireproof compartment which is not "occupied" for any other purpose than a garage. It is asserted that the words "occupy" and "occupancy", as used in the ordinance, refer to human habitation, and the fact that the heating plant and water heater are located in the basement does not constitute an "occupancy" from which the garage portion is required to be separated by a fire resistant wall. We are cited to several cases, all of which deal with the meaning of the word "occupied", as it is used in insurance policies, which provide in effect that the policies shall be void if the insured building intended for occupancy should become vacant or unoccupied.
We stated in Florea v. Iowa State Ins. Co., 225 Mo.App. 49, 32 S.W.2d 111, loc.cit. 114, that in such cases "the term `occupancy' refers to human habitation, and means the act of living in a particular house," but we went on to say that the term did not limit the insured's occupancy to any particular purpose and that the terms of the policy might be satisfied where one "is there possession pedis, such as a caretaker or watchman". It will be seen that the word even as employed in insurance cases has a very broad meaning, but generally refers to habitation. However, we must attempt to determine the meaning of words in the sense in which they are used and one of the definitions of "occupy" is, "To utilize or require for a purpose." Merriam-Webster International Dictionary, 2d Edition. It has been stated in Jackson v. Sewall, Mo.App., 284 S.W. 197, that the words "use", "occupancy" and "enjoyment" are practically synonymous. See, also, St. Louis-San Francisco Ry. Co. v. Travis Insulation Co., 215 Ark. 868, 223 S.W.2d 765. In the ordinary meaning of the word the gas furnace occupied a portion of the basement and this was an occupancy apart from the use of the basement as a garage. It seems fairly obvious that about two-thirds of the basement space was needed to house two automobiles and the balance would be put to uses and consequently to occupancy by the person or family who lived in the house.
The next contention is that the ordinance should be interpreted according to the construction put upon it by the city, citing State ex rel. Kansas City Agents Ins. Ass'n v. Kansas City, 319 Mo. 386, 4 S.W.2d 427. This case, however, does not appear to be in point, for it had to do with the construction of a contract entered into under the ordinance. The fact that there were other buildings within the city constructed in a manner similar to the ones in question does not mean that the city had established any interpretation of the ordinance but rather indicated a laxity in the enforcement of the code. The issuance of the building permits conferred on the builder no right to erect houses which were not in conformity with the code, even though the issuance of such permits may have rendered the builder immune from prosecution for such violation. State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720. Nor does the issuance of such permits serve to alter or amend the ordinance in any respect. City of Maplewood v. Provost, Mo.App., 25 S.W.2d 142.
The other points raised are directed to the decree which states: "Wherefore it is ordered and decreed by the Court that the plaintiff construct within a period of six months from the date hereof a fire-resistant wall of one hour's duration in the basement separating the portion of said basement where automobiles are to be kept and stored from other portions of the basement in each of the seventy-two houses constructed and built by the plaintiff in Lawrence Park Subdivision in University City, Missouri, unless the plaintiff is prevented from so doing by action of the owner of any of said houses."
It will be noted that the plaintiff was directed to construct fire walls in all of the houses in Lawrence Park, although only twenty-one of the houses were owned by the plaintiff at the time this action was instituted and fifty-one of them were owned by persons not parties to the suit.
In Seeley v. Cornell, D.C., 6 F. Supp. 241, loc. cit. 243, it was stated: "It is impossible for an equity court to make a decree in the absence of an indispensable party, that is, in the absence of a party whose rights must necessarily be affected by such decree."
It is stated in Pomeroy's Equity Jurisprudence, 5th Ed., Vol. 1, p. 154, Sec. 115: "The fundamental principle of equity in relation to judgments is, that the court shall determine and adjust the rights and liabilities concerning or connected with the subject-matter of all the parties to the suit, and shall grant the particular remedy appropriate in amount and nature to each of those entitled to any relief, and against each of those who are liable, and finally shall so frame its decree as to bar all future claims of any party before it which may arise from the subject-matter, and which are within the scope of the present adjudication."
It may be readily seen that a number of disputes might arise wherein the plaintiff might contend that it had been prevented from complying with the decree. The decree is not effective because it leaves the performance of the mandate to the wish or will of persons not parties to the suit.
In 19 Amer.Juris. p. 281, Sec. 409, we find it asserted: "It is a fundamental principle of chancery courts finally to dispose of litigation, making as complete a decision on all the points embraced in a cause as the nature of the case will admit, so as to preclude not only all further litigation between the same parties, but also the possibility that the parties may at any future period be disturbed or harassed by the claim of any other person, as well as the possibility of any danger of injustice being done to other persons who are not before the court in the present proceedings."
Such a pronouncement is followed in School District No. 24 of St. Louis County v. Neaf, 347 Mo. 700, 148 S.W.2d 554, 557, wherein it is held: "So also persons without whose joinder no effectual decree can be rendered in plaintiff's favor are indispensable parties, since the court ought not to interfere at all except in a mode which would be effectual for the purpose of the decree." See, also, Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9.
It follows that the only decree that could have been entered was one concerning the twenty-one houses owned by the plaintiff at the time the suit was instituted.
The Commissioner, therefore, recommends that the judgment be reversed and the cause remanded with directions to enter a decree requiring the plaintiff to construct within a period of six months a fire-resistant wall of one hour's duration in the basement separating the portion of said basement where automobiles are to be kept and stored from other portions of the basement in each of the following houses in Lawrence Park, a subdivision of University City:
Block I Lot 11 — 8167 Vardaman Drive Lot 12 — 8163 " "
Block II Lot 14 — 8137 Vardaman Drive Lot 15 — 8127 " " Lot 16 — 1247 Vaughan Drive Lot 17 — 1251 Vaughan " Lot 18 — 1257 " " Lot 21 — 1271 Vaughan "
Block III Lot 1 — 8166 Vardaman Drive Lot 2 — 8162 " " Lot 3 — 8158 " " Lot 4 — 8154 " " Lot 5 — 8148 " " Lot 6 — 8144 " " Lot 7 — 8140 " " Lot 8 — 8136 " " Lot 9 — 8132 " " Lot 10 — 2128 " " Lot 11 — 8124 " " Lot 12 — 8120 " " Lot 17 — 1266 Vaughan "
which were owned by the plaintiff at the time this suit was instituted.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed and the cause remanded with directions to enter a decree in accordance with the views expressed by the Commissioner.
BENNICK, P. J., and ANDERSON and GREEN, JJ., concur.