Continental Cas. Co. v. G. R. Kinney Co., Iowa

• Decision Date: 08 February 1966
• Docket Number: No. 51882,51882
• Citation: 140 N.W.2d 129,258 Iowa 658
• Parties: CONTINENTAL CASUALTY COMPANY, Appellant, v. G. R. KINNEY CO., IOWA, Inc., an Iowa corporation, Appellee.
• Court: Iowa Supreme Court

Page 129

140 N.W.2d 129

258 Iowa 658

CONTINENTAL CASUALTY COMPANY, Appellant, v. G. R. KINNEY CO., IOWA, Inc., an Iowa corporation, Appellee.

No. 51882.

Supreme Court of Iowa.

Feb. 8, 1966.

McDonald & McDonald, Davenport, for appellant.

Carl W. Schultz, Davenport, for appellee.

LARSON, Justice.

This is an indemnity action to determine whether the landlord or the tenant insurance carrier must assume the liability which arose as a result of a damage action when a pedestrian fell upon a patch of ice in front of tenant's store in Davenport, Iowa, on or about January 9, 1962. See Meier v. Phillips, 256 Iowa 757, 129 N.W.2d 92.

The sole question presented by this appeal is whether there was sufficient evidence in the record to support a jury finding that the landlord had waived the indemnity provision in their written lease of August 11, 1955. The trial court, in overruling plaintiff's motion for judgment notwithstanding the verdict, held there was, and we agree.

Plaintiff's petition alleged a store-lease agreement between the parties, and a breach of the provision whereby the 'Tenant agrees to keep the public and private sidewalk in front of said premises in a clean, safe condition, free from snow, sleet or ice or other dangerous substances, and to hold the Landlord harmless for any damage to person or property due to Tenant's neglect to do any of these things.' It further alleged an action for damages was brought against the landlord as a result of a fall on an ice patch in front of the tenant's premises, a tenant rejection of a due and timely request that it defend, and a resultant financial loss to plaintiff. Defendant's answer affirmatively alleged waiver of the above provision, pleaded estoppel, but did not dispute the expense involved resulting from the accident. The law involved herein is not greatly in dispute.

I. Waiver is everywhere defined as the intentional relinquishment of a known right. It may be shown by affirmative act of the party charged therewith, or it may be inferred from such conduct as warrants the conclusion that a waiver was intended. In other words, the intention, where the waiver is implied, is a matter of inference, to be drawn from the facts and circumstances relied upon to constitute the same. Currie v. Continental Casualty Co., 147 Iowa 281, 126 N.W. 164; Pond v. Anderson, 241 Iowa 1038, 44 N.W.2d 372; Wisdom v. Board, 236 Iowa 669, 19 N.W.2d 602; Bankers Trust Co. v. Economy Coal Co., 224 Iowa 36, 43, 276 N.W. 16; North American Ginseng Co. v. Gilbertson, 200 Iowa 1349, 1352, 206 N.W. 610, 612; Williams v. Stroh Plumbing & Electric, Inc., 250 Iowa 599, 602, 94 N.W.2d 750, 82 A.L.R.2d 465, and citations; 92 C.J.S. Waiver, page 1048.

II. The issue of waiver of the written provision of the lease is an affirmative defense interposed by the defendant. Thus the burden of proving it by a preponderance of the evidence rests upon it. Williams v. Stroh Plumbing & Electric, Inc., supra; Ford v. Ott, 186 Iowa 820, 834, 173 N.W. 121; 56 Am.Jur., Waiver, § 22; Rule 344(f)5, R.C.P.

III. Where acts and conduct are relied upon as proof of waiver, the intention of the party charged to waive his rights must clearly appear. Williams v. Stroh Plumbing & Electric, Inc., supra, and citations. The issue of waiver where acts and conduct are relied upon is usually one of fact for the jury, although it is true occasionally where the evidence is not disputed, the question becomes one of law for the court. Terry & H. Rosenberg v. American Ins. Co., 202 Iowa 1291, 1298, 211 N.W. 716; Currie v. Continental Casualty Co., supra; 56 Am.Jur., Waiver, § 23; 31 C.J.S. Estoppel § 163b, pages 463, 464. Under the evidence here presented we are not persuaded that it appears as a matter of law that plaintiff did or did not waive the indemnity provision in the lease. Under the facts and circumstances revealed in the record this issue was properly submitted to the jury.

IV. In ruling on plaintiff's motions to direct and for judgment, we must view the evidence in a light most favorable to defendant. Rule 344(f)2. So viewed, did the conduct of the landlord permit the inference that the landlord intended to and did take over complete control of the sidewalk in question, and did defendant reasonably recognize and rely thereon? We think it did, especially when the landlord did not request or demand that service by the tenant or communicate with it about a neglect of the contractual duty prior to the accident.

V. Subsequent to the execution of this lease and before the tenant took possession of the premises in April of 1957, the landlord installed a heating system of pipes imbedded in the 15-foot-wide sidewalk in front of this and other rental property throughout the entire block. It was designed to keep the sidewalk, most of which was covered by a canopy, clear of snow, sleet and ice. It has been so used and operated by the landlord since its installation with success, and except for the one instance on January 9, 1962, when Frieda Meier slipped and fell on an icy spot about a foot or two in diameter, no one had seen icy patches on the walk in front of tenant's store, except near the street where city crews would sometimes push snow onto the walk as they cleaned the streets. There was testimony that when that occurred, the landlord's employees promptly cleaned it off.

From April 1957 until January 1962 the tenant had four store managers. Three of them testified they had nothing to do with the cleaning of the sidewalk in front of their store. The manager from April 1957 until August 1958 testified: 'The Putnam Estate janitors took care of everything' and 'During the time he was manager he never exerted any control over the cleaning of the sidewalks at any time, and he never...