City of Oakland v. Oakland Unified School Dist. of Alameda County

• Decision Date: 23 May 1956
• Docket Number: No. 16748,16748
• Citation: 297 P.2d 752,141 Cal.App.2d 733
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF OAKLAND, a municipal corporation, Plaintiff and Respondent, v. OAKLAND UNIFIED SCHOOL DISTRICT OF ALAMEDA COUNTY, State of California, a public corporation, and Board of Education of the Oakland Unified School District of the City of Oakland, County of Alameda, State of California, Defendants and Appellants.

Page 752

297 P.2d 752

141 Cal.App.2d 733

CITY OF OAKLAND, a municipal corporation, Plaintiff and Respondent, v. OAKLAND UNIFIED SCHOOL DISTRICT OF ALAMEDA COUNTY, State of California, a public corporation, and Board of Education of the Oakland Unified School District of the City of Oakland, County of Alameda, State of California, Defendants and Appellants.

No. 16748.

District Court of Appeal, First District, Division 1, California.

May 23, 1956.

Rehearing Denied June 22, 1956.

Hearing Denied July 18, 1956.

Woodrow W. Kitchell, Oakland, Herbert Chamberlin, San Francisco, of counsel, for appellants.

Appelbaum, Mitchell & Bennett, Oakland, for respondent.

BRAY, Justice.

Defendants leased from plaintiff the Arena of its Municipal Auditorium building in which to hold the 'Annual Spring Music Festival.' One Mrs. Genevieve Herd sued plaintiff for damages for injuries which she claimed to have sustained while attending said festival. She alleged that her injuries were due to a fall caused by a defect in the walkway providing access to the easterly entrance of said Municipal Auditorium. Claiming that under the lease above mentioned defendants had agreed to indemnify plaintiff against all loss, expense or claim for damages arising out of the use of the property described in the lease, plaintiff demanded that defendants defend plaintiff in the Herd action. Defendants refused so to do. Plaintiff brought this action to declare its rights under said lease and particularly to have it declared that defendants hold plaintiff harmless from any claims of said Genevieve Herd in said action brought by her against plaintiff. Defendants appeal from a judgment in favor of plaintiff.

The trial court found that the place where Mrs. Herd claimed to have been injured was a 'path * * * providing access' to the easterly entrance of said Municipal Auditorium owned by plaintiff, ¹ and that the place where the injury occurred was a part of the premises leased to defendants in the said lease, and that the accident sustained by Mrs. Herd arose 'out of the use and occupation of the premises leased * * *'

Question Presented.

Does the indemnity clause of the lease apply to the place of injury?

Premises Indemnified.

What were 'the premises' as to which the indemnity applies? The lease, prepared by plaintiff, provides: '1. That the lessor hereby leases to the lessee, and the lessee hereby hires from the lessor, the Arena of the Oakland Municipal Auditorium Building, hereinafter referred to as the 'premises' (and no other space or accommodation except as may be hereinafter expressly provided for) for the sole purpose of holding the Annual Spring Music Festival in said building * * *' (Emphasis added.) (No other space or accommodation is referred to.) The balance of said paragraph 1 and the other 12 paragraphs, excepting only paragraph 12, have no bearing on the problem here involved. Paragraph 12 provides: 'That the lessee will hold the lessor free from any liability or claim for damages or suit for or by reason of any injuries to any person or property, of any kind whatsoever, from any cause whatsoever arising out of the use and occupation of the premises by the lessee; and the lessee hereby covenants and agrees to indemnify and save harmless the lessor from all liability or damage on account of or by reason of any such injuries or damages.' (Emphasis added.)

At the trial Mrs. Herd testified that as she left the Music Festival, she walked out of the auditorium, descended steps to a walkway in front of and adjoining the building. After walking 22 to 25 feet on the walkway she stepped into a hole, whereby she was injured. This hole was in the center of the pathway. It customarily held a post, but the post had been removed. There is no evidence to show who had removed it. A photograph of the pathway was introduced in evidence. It shows a cement walk running parallel to the easterly end of the auditorium building. At the near end of the picture the walk inclines upward and then levels off. The steps to the doorways of the building lead off this walk at right angles. On the outer side of the walk is an iron railing. There was no evidence that the walk was used for purposes other than ingress and egress to or from the building.

Forrest Mitchell, who executed the lease on behalf of defendants, testified that at the time of executing it he understood that people attending the festival would be entitled to use the walkway and exist of the autitorium to get in and out.

The question here is not alone what could be used by defendants as appurtenant to the leased portion of the building but particularly as to what places the indemnity provision would apply. In determining this question and in interpreting the lease, it must be borne in mind that the terms of the lease must be construed strictly against plaintiff, first because the lease was prepared by plaintiff (see Basin Oil Co. v. Baasch-Ross Tool Co., 125 Cal.App.2d 578, 271 P.2d 122; Pacific Lumber Co. v. Industrial Accident Comm., 22 Cal.2d 410, 422, 139 P.2d 892; E. A. Strout Western Realty Agency v. Gregoire, 101 Cal.App.2d 512, 517, 225 P.2d 585); and secondly, because the indemnity provision purports to indemnify plaintiff against the results of its own negligence. ² '* * * the law does not look with favor upon attempts to avoid liability or secure exemption for one's own negligence, and such provisions are strictly construed against the person relying upon them. * * * [W]here the language of an instrument purporting to exculpate one of the parties for its future negligence was prepared entirely by the party relying on its terms, words clearly and explicitly expressing that this was the intent of the parties are required. [Citations.]', Basin Oil Co. v. Baasch-Ross Tool Co., supra, 125 Cal.App.2d at pages 594, 595, 271 P.2d at page 131.

In Hollander v. Wilson Estate Co., 214 Cal. 582, 7 P.2d 177, the tenant leased the fourth floor of a 7 story building. The lease contained a provision indemnifying the landlord against all claims for damages to persons or property "in or about or connected with this tenancy or the occupancy of said demised premises." 214 Cal. at page 584, 7 P.2d at page 178. The court held that while no mention was made in the lease of the tenant's right to use the elevator,...