Chazen v. Trailmobile, Inc.

• Decision Date: 12 November 1964
• Citation: 19 McCanless 87,384 S.W.2d 1,215 Tenn. 87
• Parties: Phillip CHAZEN and Mollie Chazen v. TRAILMOBILE, INC. 19 McCanless 87, 215 Tenn. 87, 384 S.W.2d 1
• Court: Tennessee Supreme Court

Page 1

384 S.W.2d 1

Phillip CHAZEN and Mollie Chazen v. TRAILMOBILE, INC.

19 McCanless 87, 215 Tenn. 87, 384 S.W.2d 1

Supreme Court of Tennessee.

Nov. 12, 1964.

J. H. Doughty, of Hodges, Doughty & Carson, Lewis Howard, of Donaldson, Montgomery & Kennerly, Knoxville, for plaintiffs in error.

Sam F. Fowler, Jr., of Fowler, Rowntree & Fowler, Knoxville, for defendant in error.

BURNETT, Chief Justice.

The plaintiffs leased a building they owned to the defendants for use by the defendants in their business. In the scope of their business, the defendants repair trailers used in connection with tractor-trailer rigs in heavy over-the-road hauling. While an employee of the defendants was using a torch in the repair of a trailer he set fire to certain inflammable portions of it. With the knowledge that the trailer was susceptible to ignition and burning, the employee of the defendants continued to use the torch and set fire to the trailer which, in turn, set fire to the premises resulting in a considerable loss due to the fire. The plaintiffs sued the defendants on what amounted to common law negligence allegations and recovered a judgment but the case was reversed in favor of the defendants upon an appeal to the Court of Appeals, Eastern Section, and we denied certiorari.

The plaintiffs then began again to sue the defendants, this time alleging a breach of a covenant in the lease agreement to return the premises in as good condition as they were when leased. To this allegation the defendants demurred setting out the lease agreement itself and certain clauses specifically as a defense. The demurrer was sustained and the plaintiffs now appeal to this Court.

At issue are the following provisions in the lease and the correct interpretation to be placed thereon. On page 3 under 'improvements and repairs':

'The Lessee covenants to take said property, with the repairs agreed upon by a separate letter hereto attached, and to keep said property in good condition, and at its own cost and expense make all alterations, improvements and all necessary repairs to the premises herein leased, * * * and at the end of said term the Lessee is to return said premises in as good condition as when received, ordinary wear, tear and damage by fire or unavoidable casualty excepted.'

On page 6 under 'premises rendered unfit':

'No compensation or claim shall be allowed by the Lessors by reason of damage, inconvenience or annoyance arising from the necessity of repairing or rebuilding any portion of the building or its equipment, however, the necessity may occur.

'The Lessors waive all right of recovery against the Lessee for any loss occurring to the demised premises resulting from fire * * *. (enumerating others) * * * and the Lessee likewise waives all right of recovery against the Lessor for any similar loss or losses * * *.'

Plaintiffs argue from the foregoing, and from certain case law authority to be cited later, that the defendants have breached the covenant to keep the premises in good repair by reason of allowing the torch work to continue when it had actual notice that such work had a tendency to ignite the premises.

The defendants answer that the waiver of the right to sue voluntarily entered into between the plaintiffs and the defendants, which was of a reciprocal nature, bars recovery by the plaintiffs notwithstanding the degree of negligence present in the action of the defendants' employee in starting the fire and notwithstanding the clause of the lease providing for return of the premises in good condition.

In support of their contention, plaintiffs rely upon the case of Bishop v. Associated Transport, Inc., 46 Tenn.App. 644, 332 S.W.2d 696. In that case there was a provision in the lease similar to the one now in question. The lease contained the provision that the property was to be turned over to the lessor at the termination of the lease life in 'reasonably good state of repair'. There was, however, a specific exclusion of liability to the lessee for any damage resulting from fire.

The premises were destroyed by fire and the lessor sued the lessee, notwithstanding the lease provisions to the contrary, for the damage resulting from the fire. It was proved that the fire was arsonous in nature, being beliberately set by the sublessee, who was convicted of the crime.

The Court of Appeals said that the provision in the lease excluding fire from the liability of the lessee was intended to cover the loss by fire in the ordinary sense of the word, not by losses incurred as a result of a deliberately set fire. Because the fire in that case was deliberately set, the court held that the covenant in the lease was breached and the lessee was liable for the damages.

It is urged on behalf of the defendants that the case cited, supra, does not have any direct bearing on the present facts because it deals with a unique set of facts, those being concerned with arson and attendant liability to the lessee resulting therefrom. In no way do the defendants question the decision of Court of Appeals, rather it urges that the holding in the Bishop case, supra, is applicable to arson and not to negligence, no matter how gross or wilful it may be.

There is no disagreement within the various courts and...