Barragan v. Munoz

• Decision Date: 25 June 1975
• Docket Number: No. 6417,6417
• Citation: 525 S.W.2d 559
• Parties: Lauro BARRAGAN, d/b/a Del Norte Saddlery, Appellant, v. Juan MUNOZ, d/b/a Fisher Hotel, Appellee.
• Court: Texas Court of Appeals

Page 559

525 S.W.2d 559

Lauro BARRAGAN, d/b/a Del Norte Saddlery, Appellant, v. Juan MUNOZ, d/b/a Fisher Hotel, Appellee.

No. 6417.

Court of Civil Appeals of Texas,

El Paso.

June 25, 1975.

Scott, Hulse, Marshall & Feuille, Stephen B. Tatem, Jr., El Paso, for appellant.

Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, Malcolm Harris, El Paso, for appellee.

OPINION

WARD, Justice.

The tenant, Lauro Barragan, sued his landlord, Juan Munoz, for the damages sustained to a stock of merchandise occasioned by water coming from the premises which were under the control and possession of the landlord. At the conclusion of the plaintiff's case, the Court instructed the jury to return a verdict for the defendant. We affirm.

The tenant operates a western-wear store on the first floor of a three-story building known as the Fisher Hotel in El Paso. The landlord has retained the possession of the top two floors of the building where he conducts his business known as the Fisher Hotel. On the morning of October 13, 1969, a concealed water pipe located between the second and third floors and above a vacant room in the hotel developed a leak. The water seeped through the floor of the second story and flowed into the Appellant's premises, and the damages resulted. Appellant's claim for recovery for his loss is based on alternative theories of trespass, negligence and res ipsa loquitur.

The Appellant occupied his leased premises as a tenant since 1947. The most recent written lease covering the premises prior to the flooding was for the term of April 1, 1953, through March 31, 1955, and since the expiration of that lease the tenant has continued to occupy the same premises and paid the same rent of $175.00 a month as called for in the lease. The landlord urges that a hold harmless clause contained in Paragraph Ninth of this written lease controls the disposition of this case. Paragraph Ninth is to the effect that the landlord shall not be liable to the tenant for damages to property from latent or patent defects in the building, nor for damages to property 'occasioned by or from plumbing, gas, water, steam and other pipes or apparatus being out of repair.' Such exculpatory provisions are not contrary to public policy and are valid and enforceable. Mitterlehner v. Mercantile National Bank at Dallas, 378 S.W.2d 137 (Tex.Civ.App.--Dallas 1964, writ ref'd n.r.e.) . The question is then presented as to whether or not the tenant is bound by these terms of the expired lease by virtue of the 'holdover doctrine.' It is the rule that proof of holding over after the expiration of a term fixed in the lease gives rise to the presumption that the holdover tenant continues to be bound by the covenants which were binding upon him during the term, in the absence of evidence to the contrary. 49 A.L.R.2d 483. The law implies an agreement on the part of the landlord that he will let and on the part of the tenant that he will hold on the terms of the expired lease. Overstreet v. Houston Oil Co., 64 S.W.2d 354 (Tex.Civ.App.--Beaumont 1933, writ ref'd). The holding over is normally a lease for a year binding on both parties in the absence of an express or implied agreement to the contrary. A second and subsequent holdover year can be created by holding over after the expiration of the first holdover year. Willeke v. Bailey, 144 Tex. 157, 189 S.W.2d 477 (1945); 35 Tex.Jur.2d Landlord and Tenant § 26, p. 510.

The Appellant relies upon Paragraph Eighth of the expired lease as being the necessary contrary evidence which keeps the tenant from being bound by the exculpatory clause. Paragraph Eighth provides that:

'It is agreed that this lease terminates at the time herein specified and should Lessee tender his monthly rental for the month next ensuing after the termination hereof or for any other month and same be accepted by lessor, same shall not renew his lease, but he shall be regarded as a tenant-at-will for such time as he may continue to remain in and upon the premises after the expiration hereof, * * *.'

Regardless of any such paragraph, all leases terminate by their own terms upon expiration, and where the tenant remains in possession and rent continues to be accepted the terms of the expired lease are presumed to continue, absent agreement to the contrary. The only change made in the is still bound by the remaining covenants. holdover was to be at will. Where a landlord and his tenant have agreed to a holding over but have made certain changes in the expired lease, the rule is that the tenant is till bound by the remaining covenants. 49 A.L.R.2d 490. Whether a particular clause in an original lease is applicable to a holdover depends upon the nature of the clause, that is, whether it was consistent with the new situation. The exculpatory clause in this case is as consistent to the situation after the holding over as it was during the term of the original lease.

The parties had allocated the risk of possible loss by the terms of the written lease. The tenant, knowing that he could not look to the landlord for the damages, had protected himself with insurance coverage and was so covered on October 13, 1969. The tenant points this out by stating this is a subrogation case brought on behalf of the United States Fire Insurance Company of New York in the name of its insurer. In addition, the tenant testified he thought he was still operating under the written lease. We hold that the exculpatory clause remained in effect and barred recovery against the landlord for any negligence or unintentional...