In its motion the defendant claims an absence of evidence to show that the decedent made his investigation and was in the building at the time of the explosion as a requirement of his duty as fire chief, and that it therefore had no duty to anticipate his presence there.
Those whose presence might be required in due care to have been anticipated included the decedent as to concealed dangers of an extra-hazardous nature. His presence might be found to have been reasonable and rightful, and so to have been thus anticipated.
Regardless of any duty, prescribed or otherwise, to investigate, as a fire chief in a city of the state he entered the basement of the building to ascertain if gas was escaping into it. It was an act in the course of his service such as might reasonably and naturally be expected under the conditions which existed and of which the defendant had knowledge. An obligatory character of his act was not essential to a reasonable foresight of his presence. It was enough if he acted officially rather than personally, and that he did so is not open to doubt. His prescribed duties were not necessarily the full measure of his service, which from the nature of his office and in the absence of defined limitation was inclusive of some conduct of discretionary authority. The prescription of official duties by statute or ordinance is not an exclusive test of authority when neither express provision nor implication from the nature of the office calls for it. A fire chief's service includes all legal conduct deemed by him calculated to promote the public safety in respect to the fire hazard. Exercise of such authority is within the scope of service and within his official power, although failure to exercise it may not be a breach of duty. The conduct was a part of the service and more than incidental to it.
And the decedent's presence in the building may be found to have been rightful. It is reasonable to say that it is within the implied authority of the janitor of a building, having the duties of care and protection, to admit a fire chief into it to make such an investigation as was here made. Consent of the owner through the janitor might therefore be found, and the consequent status of the decedent as at *Page 453 least that of a licensee. Especially is this so in the absence of opposing evidence.
The evidence justified a conclusion that his presence was rightful, and as it was also in the course of his official service, the conclusion that his presence should have been anticipated was not unwarranted.
The other grounds of the motion call for no statement of consideration.
Former result affirmed.
SNOW, J., did not sit: the others concurred.