Buchanan v. Hieber, 32089.
| Decision Date | 16 December 1948 |
| Docket Number | No. 32089.,32089. |
| Citation | 50 S.E.2d 815 |
| Parties | BUCHANAN et al. v. HIEBER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. a Where a lease of realty premises contains the provisions that if the premises are damaged by storm, fire, earthquake, or other casualty, but not rendered wholly untenantable, the rental shall abate in proportion as the premises have been damaged, properly construed it means that the stipulated rent shall be reduced in proportion to the amount of damages the premises have undergone during the period the premises remained thus damaged.
b The judgment of the trial court is not the law of the case where the same has been appealed and reversed.
2. A loss or injury may occur by fire without the actual burning of the property as damage by water used to extinguish the flames. See Code, § 56-816.
3. Applying the facts in the instant case to the excerpt of the charge com-plained of in special ground 7 of the amended motion for a new trial, same fails to constitute reversible error.
4. Damage to the ingress and egress of rented premises for a commercial business abutting on a street in a city affords the tenant the same rights as he would have, had the actual leased property been damaged. See City of Rome v. Lecroy, 59 Ga.App. 644(2), 1 S.E.2d 759.
5. A judgment must be reversed on the general grounds where it appears that nowhere in the record is there any evidence to support the amount of the verdict returned in favor of the plaintiff. See Roddenberry Hardware Co. v. Merritt, 17 Ga.App. 425(4), 87 S.E. 681.
Error from Superior Court, Fulton County; Frank A. Hooper, Judge.
Proceeding by W. F. Buchanan and Alvin B. Cates, receivers of the Winecoff Hotel Company, to recover by distress warrants certain rent against William S. Hie-ber. Judgment for plaintiffs in the sum of $300, and the plaintiffs bring error.
Reversed.
The writ of error herein grows out of a proceeding by W. F. Buchanan and Alvin B. Cates, duly appointed receivers of the Winecoff Hotel Company and all assets thereof, hereinafter referred to as plaintiffs, to recover by distress warrant certain rent against the defendant in error, William S. Hieber, hereinafter referred to as the defendant.
For a full and complete statement of the case to the point of the trial out of which the writ of error herein grew, see Hieber et al. v. Buchanan, Receivers et al., 202 Ga, 831, 44 S.E.2d 647.
After the case was reversed by the Supreme Court the issue of fact made by the distress warrant, the counter affidavit and the pleadings filed by the parties amplifying their contentions was tried in the Superior Court of Fulton County by a jury in accordance with the Supreme Court decision. The verdict was for the plaintiffs in the sum of $300 and judgment was accordingly entered. Plaintiffs thereupon filed a motion for a new trial on the general grounds which was later amended by adding special grounds numbers 4 to 12 inclusive. The trial court overruled the motion for a new trial as amended and this judgment is assigned as error.
B. D. Murphy, of Atlanta, for plaintiffs in error.
Herbert Johnson, of Atlanta, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts).
1. a Paragraph number 11 of the lease contract under which the defendant held the premises provides as follows:
Although special ground numbers 4, 6 and 8, in dealing with this provision of the lease complain of certain excerpts from the charge of the trial court, special ground number 11 complains that the verdict is unsupported by the evidence and special ground 12 contends that the judgment of the trial court entered May 10, 1947, which was appealed to the Supreme Court, is stare decisis, each of these special assignments of error are treated together because they deal with the construction of the latter part of paragraph number 11 of the lease contract. It is insisted by the plaintiffs that, properly construed, this provision of the lease means that the lessee is not entitled to a reduction in the rent in case of damage to the leased premises except in the proportion that the premises might become untenantable. That is if the whole space rented by the defendant continued to be occupied by him after the damage, he would be entitled to no reduction in the rent. On the other hand if a part of the space was untenantable andtherefore not occupied by him after the damage he would be entitled to a reduction in the rent in proportion to the relation of this untenantable part of the space to the whole rented premises. The defendant contends that this provision of the lease contract means that if the rented premises become damaged in one of the ways designated but not to such extent but that the lessee may continue to occupy the whole leased premises, the rent shall be reduced in proportion to the amount of damages the premises have undergone during the period the premises remained thus damaged. The language in the lease under consideration is as follows: "If premises are damaged but not rendered wholly untenantable by any such casualty, rental shall abate in proportion as the premises have been damaged. * * *" (Italics ours.) Therefore to give this provision the meaning attributed to it by plaintiffs would require in effect the change of the wording of the provision so as to make it say "rental shall abate in proportion to the relation of the untenantable part of the premises to the tenantable part after the damage."
Section 20-704(2) of the Code in dealing with the construction of contracts provides as follows: "Words generally bear their usual and common signification; * * *." By giving the words of that part of paragraph 11 of the lease contract which we have under consideration their usual and common signification, they mean that if the leased premises are damaged by fire, or as the direct and proximate result of fire, but not rendered wholly untenantable thereby, the stipulated and agreed rent shall not continue to be paid in the same manner as before the damage, but thereafter and pending restoration of the leased premises, the rental shall abate in proportion to the extent of these damages.
b. The order of the court May 10, 1947, contended by plaintiffs to be the law of the case, in the 12th ground of their amended motion for a new trial contained a provision as follows: "The facts before the court do not justify a finding that the lessee is entitled to any abatement of rent on account of fire damages to the premises, it appearing that the premises covered by the lease, or any part of same, have not been rendered untenantable or unusable by reason of fire." In Hieber et al. v. Buchanan, Receivers, et al., supra, the entire order of the superior court including the foregoing quoted part was excepted to and error assigned thereon as being contrary to law and contrary to the evidence adduced at the hearing and without evidence to support it. This judgment of the trial court containing the excerpt quoted herein was reversed by the Supreme Court. The effect of the reversal was to vacate it the same as if it had never been entered.
The construction that the trial court therefore placed upon the language of the lease contract which we now have under consideration is not the law of this case.
Special grounds numbers 4, 6, 8, 11 and 12 of the amended motion for a new trial are without merit.
2. Special ground number 5 of the amended motion for a new trial contends that the trial court erred in charging the jury as follows: "The casualty in this case involved being an alleged fire which it is contended burned not only the Winecoff Hotel property but certain portions of the same as are covered by the lease contract in question." The plaintiffs contend that this instruction was error because it was not contended that the space leased by the defendant was actually burned, it appearing by the evidence without dispute that it was not burned by the fire itself but was damaged by water used to extinguish the flames and by other means directly resulting from the fire. Section 56-816 of the Code provides as follows: "A loss or injury may occur from fire without the actual burning of the articles or property; as, a house blown up to stop a conflagration, or goods removed from imminent danger, or damage by water used to extinguish the flames." The charge was not misleading and constitutes no ground for the reversal of this case.
3. By Special ground 7 of the amended motion for a new trial it is contended that the trial court erred in charging the jury that "in passing upon the question of what reduction, if any, the tenant * * * would be entitled to * * * he would not be entitled to any reduction on account of * * * loss of profits attributable solely to diminution in the number of guests in the Winecoff Hotel itself * * *." The plaintiffs contend this excerpt to be error because they say that it in effect instructs the jury that the defendant would be entitled to a reduction on account of loss of profits unless such loss of profits was attributable solely to the diminution in the number of guests in the Winecoff Hotel.
The plaintiffs correctly contend that the defendant is entitled to no reduction in his rent because of loss of sales or profits. However, in the instant case, the defendant had expressly pled damage...
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Buchanan v. Hieber
...50 S.E.2d 815 78 Ga.App. 434 BUCHANAN et al. v. HIEBER. No. 32089.Court of Appeals of Georgia, Division Nos. 1, 2.December 16, 1948 [50 S.E.2d 816] ... ... Syllabus by the Court ... 1. a ... Where a lease of realty premises contains the provisions that ... if the premises are damaged by storm, fire, earthquake, or ... ...