Dilks v. Flohr Chevrolet, Inc.

• Decision Date: 02 July 1963
• Citation: 411 Pa. 425,192 A.2d 682
• Parties: Milford F. DILKS, Appellant, v. FLOHR CHEVROLET, INC.
• Court: Pennsylvania Supreme Court

Page 682

192 A.2d 682

411 Pa. 425

Milford F. DILKS, Appellant, v. FLOHR CHEVROLET, INC.

Supreme Court of Pennsylvania.

July 2, 1963.

Rehearing Denied July 20, 1963.

Philip D. Weiss and Desmond J. McTighe, Duffy, McTighe & McElhone, Norristown, for appellants.

William F. Fox, Fox, Differ, DiGiacomo & Lowe, Norristown, Herbert A. Barton, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ. JONES, Justice.

This appeal requires the construction of several paragraphs of a written building lease to determine whether, under those paragraphs of the lease, the lessee is relieved of any liability to the lessor for damages to the building arising from a fire allegedly caused by the negligence of the lessee's employees.

On December 6, 1956, Milford Dilks [Dilks], the owner of premises located at 551 Lancaster Avenue, Haverford, Pa., leased the premises for a term of five years to Flohr Chevrolet, Inc., [Chevrolet], to be used by the latter as an automobile sales office and a shop for the service and repair of automobiles. Chevrolet entered into possession on December 10, 1956 and remained in possession until December 3, 1959. On the latter date, allegedly, certain employees of Chevrolet, engaged in using an inflammable liquid to clean an automobile engine, caused a fire which spread to some excelsior wrapped around automotive parts and eventually resulted in the complete destruction of Dilk's building.

Allegedly having suffered a $231,500 loss, ¹ Dilks instituted an assumpsit action against Chevrolet in the Court of Common Pleas of Montgomery County. In his complaint, Dilks averred that Chevrolet had breached two covenants contained in the lease--a covenant to use every reasonable precaution against fire ² and a covenant not to permit benzine on the premises ³--in the following respects: Chevrolet (a) failed to use every reasonable precaution against fire; (b) used benzine on the premises; (c) stored automotive parts wrapped in excelsior in areas in which inflammable liquids were used to clean engines; (d) failed to report without delay the outbreak of the fire. After the filing of an answer, Chevrolet moved for judgment on the pleadings. That motion was based principally upon paragraph 8, (b), of the lease which Chevrolet claimed excused and relieved it from any liability to Dilks for the fire, even though the fire was caused by the negligence of Chevrolet's employees. ⁴

Judgment on the pleadings was entered by the court below in favor of Chevrolet and against Dilks and the propriety of the entry of that judgment is now before us.

On this appeal, the vital paragraph of this lease is paragraph 8, (b), ⁵ under which Chevrolet became obligated to '[k]eep the demised premises clean and free from all ashes, dirt and other refuse matter; replace all glass windows, doors, etc., broken; keep all waste and drain pipe open; repair all damage to plumbin and to the premises in general; keep the same in good order and repair as they are now, reasonable wear and tear and damage by accidental fire or other casualty not occurring through negligence of [Chevrolet] or those employed by or acting for [Chevrolet] alone excepted. [Chevrolet] agrees to surrender the demised premises in the same condition which [Chevrolet] has herein agreed to keep the same during the continuance of this lease.' (Emphasis supplied.)

The rationale of the court below in the entry of this judgment was: (a) the parties' use of the word 'or' as a disjunctive particle in paragraph 8, (b), revealed their intent to differentiate between two alternatives, i. e., an 'accidental fire' and an 'other casualty'; (b) such use of the word 'or' further revealed the parties' intent that Chevrolet was to be exculpated of any responsibility for damages caused by an 'accidental fire', whether such fire was caused by Chevrolet's negligence or otherwise, but that Chevrolet was not to be exculpated by any responsibility for damages caused by an 'other casualty' if such 'other casualty' was caused by Chevrolet's negligence; ⁶ (c) that the words 'accidental fire' include fires of both negligent and non-negligent origin and per se relieved Chevrolet of any responsibility for damages for a fire caused by its negligence; (d) that this construction of paragraph 8, (b), was fortified by the language of paragraph 9, (g), ⁷ which the court construed to require Dilks to carry fire insurance; (e) that the covenants contained in paragraphs 8, (d) and 9, (g)--requiring, respectively, the use of reasonable precaution against fire and that benzine be not used on the premises--were enforceable in independent actions but not in this action.

In passing upon the propriety of the entry of this judgment we are mindful of two applicable principles of law: (1) '* * * the well-known rule of construction that, in cases of doubt or uncertainty as to the meaning of a provision of a lease, it is to be construed most strongly against the lessor and in favor of the lessee: [citing cases]: Darrow et al. v. Keystone, etc., Stores, Inc., 365 Pa. 123, 126, 74 A.2d 176. See also: Bogutz v. Margolin, 392 Pa. 151, 154, 139 A.2d 649; Larsh et al., Trustees, v. Frank & Seder of Pittsburgh, Inc., 347 Pa. 387, 391, 32 A.2d 219; (2) a judgment on the pleadings should be entered only in cases which are clear and free from doubt. Rogoff v. Buncher Company, 395 Pa. 477, 480, 151 A.2d 83; Necho Coal Co. v. Denise Coal Co., 387 Pa. 567, 568, 128 A.2d 771.

We are in agreement with the conclusion reached by the court below that the word 'or' in paragraph 8, (b), is used as a disjunctive particle to differentiate between an 'accidental fire' and an 'other casualty'. ⁸ In fact, Dilks, in his brief, subscribed to this conclusion.

However, we do not agree with the court below that the employment of 'or' in paragraph 8, (b), necessarily reveals the intent of the parties that the phrase 'not occurring through negligence of [Chevrolet] or those employed by or acting for [Chevrolet]' modify only an 'other casualty' and not an 'accidental fire' Words and phrases on one side of the word 'or' may, and often do, modify and apply to words and phrases on the other side of the word 'or' in the same sentence. For example, in the very paragraph now under construction, the words 'damage by' are on one side of 'or' and yet clearly such words include not only 'damage by' accidental fire on the same side of 'or' but also 'damage by' other casualty on the other side of 'or'. In construing 'or', the court below relied in part on Garratt v. Philadelphia, 387 Pa. 442, 445, 127 A.2d 738. In Garratt, the Court construed the language of a municipal ordinance which read: 'Section 1. The Council hereby provides that the sum of Ten Thousand (10,000) dollars shall be paid to the surviving widow or dependent children or dependent parents of every fireman, policeman or park policeman who is killed in the course of responding to an alarm, fighting a fire, apprehending a criminal, or in the course of performing an heroic deed which involves a special hazard or risk.' (Emphasis supplied). Can there be the slightest doubt under the language of this ordinance that, even though 'or' separates 'policeman' and 'park policeman', that the phrase 'who is killed in the course of responding to an alarm, etc.' modifies not only 'policeman' on the one side of 'or', but also 'park policeman' on the other side of 'or'?

In the case at bar, the use of the word 'or' does not clearly or necessarily preclude the conclusion that the parties intended the phrase 'not occurring through negligence of [Chevrolet] or those employed by or acting for [Chevrolet]' to modify both 'other casualty' and 'accidental fire', particularly if 'accidental fire' be construed to include fires negligently-caused as well as non-negligently caused. If 'accidental fire' is so modified, then, obviously, paragraph 8, (b), does not relieve Chevrolet of liability for a fire caused by its negligence or its employees' negligence.

Even if 'accidental fire' is not so modified, as the court below, by implication at least, found, does the exemption from liability granted to Chevrolet for 'damage by accidental fire' standing alone relieve Chevrolet from liability for a fire caused by its own negligence? The court below found that the words 'accidental fire' encompassed fires of negligent as well as non-negligent origin and for such finding there exists authority under our law. Our Court in North American Life & Accident Insurance Co. v. Burroughs, 69 Pa. 43, 51, 52, defined the terms 'accident' and 'accidental': 'An accident is 'an event that takes place without one's foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected; chance; casualty; contingency.' And accidental signifies, 'Happening by chance or unexpectedly; taking place not according to the usual cause of things; casual; fortuitous. We speak of a thing as accidental when it falls to us as by chance and not in the regular course of things; * * *. Webster's Dictionary ad verba.' Over 100 years ago and prior to Burroughs, supra, this Court in McCarty et al. v. New York & Erie Railroad Company, 30 Pa. 247, 250, 251, considered whether 'accidental fire' included fires of negligent as well as of non-negligent origin. In that case, the Court considered the propriety of instructions to a jury wherein the trial court said: 'If the fire * * * was the result of accident, a circumstance over which they could have no control, they are not liable. If it was the result of carelessness or negligence on their part, they are liable.' Counsel argued that the trial court's use of the word 'accident' led the jury to believe that a loss occasioned by an accident is something different from a loss occasioned by negligence, that the two are identical and the opposite of accident is not negligence but design. The Court said: 'If...