American Mut. Liability Ins. Co. v. Fisher, 232
| Decision Date | 20 April 1973 |
| Docket Number | No. 232,232 |
| Citation | 206 N.W.2d 152,58 Wis.2d 299 |
| Parties | AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, a foreign corporation, Respondent, v. Richard Y. FISHER et al., as partners d/b/a Highway 100 Building Co., Appellants. |
| Court | Wisconsin Supreme Court |
Ronald L. Piette, Milwaukee, for appellants.
Arnold, Murray & O'Neill, Milwaukee, for respondent; George R. Schimmel, Milwaukee, of counsel.
This action was commenced on June 25, 1971, by American Mutual Liability Insurance Company to enjoin the defendants, Richard Y. Fisher and Joel S. Lee, doing business as the Highway 100 Building Company, from denying the plaintiff the use of certain parking spaces under a lease entered into between the parties. After the trial to the court, the plaintiff was granted a permanent injunction; and from the judgment of injunction, the defendants appeal.
The plaintiff rests its cause of action upon the lease which was executed by the parties on August 26, 1963. The plaintiff agreed to rent a floor of an office building then planned for construction by the defendants. The lease was for a period of ten years, with a renewal option for two additional five-year terms. In accordance with other options, the plaintiff has exercised its right to occupy more of the premises and is now the tenant of almost the entire building. In conjunction with the construction of the building and under the terms of the lease, the plaintiff was to have the right to use an adjacent parking lot.
From the time the plaintiff moved into the building until June of 1971, the plaintiff leased and used 18 spaces in the parking lot. In 1970, however, the defendants constructed another building immediately to the south of the building leased to the plaintiff. Seventeen of the parking lot spaces used until that time by the plaintiff were leased to tenants of the new building. In June of 1971, the defendants notified the plaintiff that it could no longer use any of its 18 parking spaces adjacent to the building.
The plaintiff brought this action, claiming that, under the lease, it was entitled to the 18 parking spaces and that the violation of the lease would work an irreparable hardship that could not be remedied by a judgment for damages. Accordingly, it brought this action for a permanent injunction.
Two clauses of the lease are relevant to this determination. The lease agreed upon by the parties provided:
'. . . together with the right of ingress and egress to and from said demised premises, (the lessee shall have) the right in common with the other tenants of said building to use of the common lavatories and other common areas of the building, and the parking lot pursuant to the provisions of subparagraph 'J' of paragraph 5 of this lease agreement . . ..
'. . ..
The parties to this appeal agree that the principal question is the meaning of the word, 'available,' which appears in 5(J) of the lease quoted above. The plaintiff takes the position that the word means physically usable or physically present. Plaintiff argues that, since the 18 parking spaces are undisputably physically usable, they are 'available' and that therefore, under the terms of the lease, the defendants cannot deprive the plaintiff of their use. The defendants argue that 'available' means 'not needed by the landlord' and that, since the spaces are needed by the landlord for the use of the tenants in the new building, the spaces are no longer available to the plaintiff.
This court may take judicial notice of dictionary definitions to determine the common meaning of words. State ex rel. Priegel v. Northern States Power Co. (1943), 242 Wis. 345, 351, 8 N.W.2d 350; Mittelsteadt v. Bovee (1960), 9 Wis.2d 44, 49, 100 N.W.2d 376.
We conclude that the meaning of the word, 'available,' is clear. The following dictionaries define the word:
Webster's Third New International Dictionary: Capable of use, accessible.
American Heritage Dictionary: Accessible for use, usable, at hand.
Funk & Wagnalls New Standard Dictionary: Capable of being made use of, suitable, usable.
Black's Law Dictionary (rev. 4th ed.): Suitable, usable.
The meaning urged by the defendants that the spaces are 'available' only if they give permission for use of the parking lot is not supported by any dictionary definition.
We conclude that, given the undisputed facts that the 18 parking spaces are physically usable, they are 'available' under the terms of the lease and the plaintiff is entitled to their use and enjoyment. The trial judge reached the same conclusion. The meaning of a word in a legal document is a matter within the expertise of the Supreme Court, and is not dependent upon the factfinder's appraisal of the demeanor of witnesses or the credibility that may be ascribed to their testimony. Accordingly, even were we to disagree with the finding of the trial court, we would be free to reach our own conclusion with respect to the meaning of a word. Delap v. Institute of America, Inc. (1966), 31 Wis.2d 507, 143 N.W.2d 476.
It should be noted that a trial judge's interpretation of a contract poses only a question of law. Medford Lumber Co. v. Industrial Comm. (1928), 197 Wis. 35, 39, 221 N.W. 390. Where a legal question, as distinguished from a finding of fact, is involved, this court is not bound by the usual rule that we will sustain a trial court unless its findings are contrary to the great weight and clear preponderance of the evidence.
The trial judge did not rest his decision only upon the plain meaning of the word, 'available.' In addition, he admitted parol evidence for the purpose of showing the...
To continue reading
Request your trial
-
Bostco Llc v. Milwaukee Metro. Sewerage Dist.
...of the caps irreparably harmed Bostco, leaving it with no other remedy except an injunction. See American Mut. Liab. Ins. v. Fisher, 58 Wis.2d 299, 305, 206 N.W.2d 152 (1973). Bostco argued that the jury found that the District negligently caused it harm, that the evidence at trial demonstr......
-
State v. Williams
...(1978) (deed); RTE v. Maryland Cas. Co., 74 Wis. 2d 614, 621, 247 N.W.2d 171 (1976) (insurance policy); Am. Mut. Liab. Ins. Co. v. Fisher, 53 Wis. 2d 299, 303, 206 N.W.2d 152 (1973) (lease); State v. Windom, 169 Wis. 2d at 348-49 (plea 27. See, e.g., State v. Smith, 207 Wis. 2d at 271; Stat......
-
Sprecher v. Weston's Bar, Inc.
...there is no showing that irreparable harm will result and that damages are not an adequate remedy. American Mut. Liability Ins. Co. v. Fisher, 58 Wis.2d 299, 305, 206 N.W.2d 152 (1973); Klump v. Cybulski, 274 Wis. 604, 609, 81 N.W.2d 42 (1957); Kuntz v. Werner Flying Service, Inc., 257 Wis.......
-
Kocken v. Wisconsin Council 40
...granted unless there is the threat of irreparable injury that cannot be compensated with a remedy at law. Am. Mut. Liab. Ins. Co. v. Fisher, 58 Wis.2d 299, 305, 206 N.W.2d 152 (1973). In other words, "[i]n order to warrant an injunction, the injury must be real, serious, material, and perma......