DeMund v. Oro Grande Consolidated Mines, Civil 4257

• Decision Date: 03 January 1941
• Docket Number: Civil 4257
• Parties: CHARLES W. DeMUND and L. D. DeMUND, Appellants, v. ORO GRANDE CONSOLIDATED MINES, a Corporation, Appellee
• Court: Arizona Supreme Court

108 P.2d 770

56 Ariz. 458

CHARLES W. DeMUND and L. D. DeMUND, Appellants, v. ORO GRANDE CONSOLIDATED MINES, a Corporation, Appellee

Civil No. 4257

Supreme Court of Arizona

January 3, 1941

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Mr Theodore G. McKesson and Mr. Francis M. Sasse, for Appellants.

Messrs Patterson & Eastvold, Mr. Yale McFate, and Mr. Frank E Flynn, for Appellee.

OPINION

LOCKWOOD, J.

This is an action by Oro Grande Consolidated Mines, a corporation, plaintiff, against Charles W. and L. D. DeMund, defendants, to recover damages for the destruction by fire of certain buildings upon property owned by plaintiff. The case was tried to the court sitting without a jury, which rendered judgment in favor of plaintiff for $800, which was afterwards on a remittitur damna reduced to $600, and this appeal was taken.

The facts necessary to a determination of the appeal, with the exception of one matter which we shall discuss at the proper time, are not in dispute and may be stated as follows: Plaintiff was the owner of certain mining claims situated in Yavapai county, Arizona. Upon these claims were a number of buildings such as are usually constructed for operating a mine. On September 17, 1937, plaintiff leased the premises to defendants. The lease is lengthy and goes into considerable detail, but only two clauses thereof are material in the present action. They are obligations placed upon defendants, and read as follows:

"8. Fire Insurance.

"To have issued and maintain during his occupancy fire insurance in favor of Lessor on all buildings and machinery now on the property and to pay premiums thereon, said fire insurance to be carried for seventyfive (75%) per cent of the amounts shown as values on the attached inventory.

"Removal of Lessees' Property.

"... Provided, however, that buildings, equipment, tools, etc., belonging to Lessor as shown on inventory attached hereto and made a part of this agreement, shall be left upon the property in the same condition as when received by Lessors except for reasonable wear, and in case of loss or unreasonable damage Lessees hereby agree to compensate Lessor before removal of Lessees' property."

At the time of the signing of the lease, the inventory mentioned in the clauses above set forth had not been made and was not attached to the lease.This, however, was by the mutual consent of both parties, it being understood that the inventory should be agreed upon as soon as possible thereafter. A few days before October 2d one of defendants went upon the premises, together with an insurance agent, and listed the property to be covered by fire insurance. After returning to Phoenix, they placed a tentative valuation upon the various buildings and the contents, and a copy of this listing in full detail was forwarded to plaintiff. Contained therein were the following items:

"Cooks

Southeast of hoist

dwelling

about 300'

50.00

"Boarding

South of Cooks

house

dwelling

75.00"

The evidence shows that the item listed as "cooks dwelling" was what is referred to in the pleadings as "office building." On October 15th plaintiff replied to this letter, not questioning the inventory so far as the description of the property was concerned, but suggesting that the valuation on two of buildings, one of which was the boarding house, was too low. This letter, for some reason, was not received by defendants until around 11 o'clock the morning of October 18th, while the two buildings referred to had been completely destroyed by fire during the night of the 17th, or early morning of the 18th. Defendants immediately, upon receipt of this letter, placed fire insurance on the remaining buildings. Plaintiff brought suit to recover the value of the two buildings destroyed, setting up three causes of action, the first based on negligence, the second on the general provision of the lease, as above set forth, andthe third on the nonfulfillment of the covenant to procure fire insurance. After various preliminary motions were ruled upon, the case came on for hearing. At the close of plaintiff's case, defendants moved to require plaintiff to elect which cause of action it was proceeding upon, and demurred to the complaint for improper joinder of causes of action. The court reserved its decision on these matters until the close of the case, at which time the whole matter was taken under advisement. The motion to elect was finally granted, and plaintiff standing on its second and third causes of action, the first was dismissed, and judgment rendered as aforesaid on the second.

There are a number of assignments of error, which we will consider in accordance with the legal propositions raised thereby. A number of them are based upon the fact that the complaint on which the case was tried originally joined a cause of action ex delicto with two cause ex contractu, and that under section 3748, Revised Code of 1928, which was in force at the time of the trial, actions of these natures cannot be joined.

It appears from the record that before rendering judgment, the court required plaintiff to elect on which causes of action it would stand, and that it did elect to stand on the cause of action ex contractu, whereupon the one ex delicto was dismissed, and judgment expressly rendered on one of those ex contractu. We need not, therefore, consider whether the prelminary rulings of the court as to misjoinder of causes of action were correct or not, fors in view of the final ruling dismissing the first cause of action, defendants could not have been prejudiced even if error had been committed.

We next consider whether under the provisions of the lease there was any liability upon defendants. It will be noted that by its express terms they were required to do two things, (a) to compensate plaintiff in case of loss or unreasonable damage to any of the buildings on the premises, as shown by the inventory attached to the lease, and (b) to take out fire insurance on those buildings in accordance with the inventory. It is the position of plaintiff that these were separate obligations of defendants and that it, therefore, might sue for failure to comply with either one, while it is the contention of defendants that the special clause in regard to insurance superseded the general clause in regard to the compensation for loss or damage, and that it was the fault for plaintiff that no insurance was taken out. In support of such contention, defendants appeal to section 1955, Revised Code of 1928, which reads as follows:

"Destruction of buildings terminates lease. The lessee of a building which, without fault or neglect on his part, is destroyed, or so injured by the elements or any other cause as to be untenantable or unfit for occupancy, is not liable thereafter to pay rent to the lessor or owner thereof, unless expressly provided by written agreement; and the lessee may thereupon quit and surrender possession of such premises."

and urge that this is a declaration of public policy to the effect that a lessee is not responsible for damages to leased premises unless there is an express written agreement that he assumes such liability, and that any agreements of assumption are to be construed strictly.

We think the section is not subject to the construction placed on it by defendants. Under the common law, notwithstanding leased premises were destroyed, the tenant was still under obligation to any rent therefor, and the section in question merely releases the tenant from that particular obligation but nowhere therein is anything said about whether the tenant is responsible for destruction or damage to the property, and it is expressly provided that even as far as rentals are concerned, the parties may agree to retain the common-law rule in force. We are of the opinion that the clauses in the lease involved in the present action are in no manner affected by section 1955, isupra. There can be no question that the parties had agreed in the lease that any loss or damage to the buildings in question was at the risk of defendants. It is urged,...