Fisher v. Temco Aircraft Corp.

• Decision Date: 19 May 1959
• Docket Number: No. 7141,7141
• Citation: 324 S.W.2d 571
• Parties: J. N. FISHER, Appellant, v. TEMCO AIRCRAFT CORPORATION et al., Appellees.
• Court: Texas Court of Appeals

Page 571

324 S.W.2d 571

J. N. FISHER, Appellant, v. TEMCO AIRCRAFT CORPORATION et al., Appellees.

No. 7141.

Court of Civil Appeals of Texas, Texarkana.

May 19, 1959.

Irion, Cain, Cocke & Magee, M. R. Irion, Dallas, for appellant.

Johnson, Bromberg, Leeds & Riggs, Otis B. Gary, William D. Powell, William Latham Leeds, Dallas, for appellee Temco Aircraft Corp.

Touchstone, Bernays & Johnston, Dallas, for appellee, McClure Electric Company, Inc.

CHADICK, Chief Justice.

This is a suit for damage to real property. The judgment of the trial court is affirmed in part and in part reversed and remanded for new trial.

J. N. Fisher, as lessor, leased to Temco Aircraft Corp., as lessee, an entire 3-story brick building with a 1-story annex containing approximately 38,400 square feet floor space, located in the City of Dallas for a term of one year, beginning in December, 1956. Temco accepted possession of the building and entered into a contract with McClure Electric Company, Inc., to make certain additions and modifications in the electrical wiring of the building to provide electric current for computing machines Temco planned to install.

Prior to letting the contract to McClure, Temco's property manager and other employees had pointed out generally what was desired in the way of additional electric services and McClure's superintendent went on the premises and made an inspection. After the award of the contract, McClure's superintendent laid out the plan of work for McClure's employees and set them about it. The work as planned required additional electric lines to be brought in through a brick wall at a corner of the building and carried by conduits some 40 to 50 feet in a space between the original ceiling of a room and a false ceiling suspended some five feet below. The two employees of McClure Electrical Company performing the work had access to the space between the original ceiling and the suspended ceiling through a service room and observed that passage over the suspended ceiling could be made by laying planks across the channel irons supporting such ceiling. The planks were in place at the time they went upon the job and they proceeded to use them thereafter, shifting the planks as necessary to reach the locations to which their work carried them. During the first day of their work while both were within two or three feet of each other carrying tools and a section of conduit, the suspended ceiling gave way and a large amount of it crashed to the floor approximately 10 feet below. Fortunately neither workman was injured and they were soon rescued from their precarious position. Fisher thereafter repaired the collapsed ceiling.

In February 1958, Fisher sued Temco Aircraft Corp. and McClure Electric Co., Inc., to recover $4,893.50 actual damage for collapse of the ceiling and $5,000 exemplary damages. His third amended original petition alleged nine acts of negligence against McClure; 11 such acts against Temco, contending that each proximately caused the damage to the building for which redress was sought. Against Temco, Fisher pled the lease contract and certain provisions thereof which will be noted in detail later in the opinion. Temco answered by general denial and specifically pled that McClure was an independent contractor and pled over against McClure upon an indemnity agreement in the wiring contract. After answers were filed by both Temco and McClure, Temco filed motion for summary judgment. Replying to this motion Fisher filed an unsworn answer. At the hearing the deposition of Temco's property manager, McClure's superintendent and employees involved in the work, the lease agreement heretofore mentioned and the contract for the performance of the electrical installation between Temco and McClure were before the trial court for consideration in determining the motion. The trial court sustained Temco's motion for summary judgment and rendered a take-nothing judgment against Temco, apparently upon the theory that McClure was an independent contractor and Temco was not liable for McClure's negligent acts in performing the contract work, and directed Fisher to re-plead and omit Temco Aircraft Corp. as a defendant. Fisher complied with the order and re-pled against McClure Electric Co., Inc., and a trial was had before a jury.

Upon jury answers to special issues the trial judge entered a take-nothing judgment against McClure. Fisher filed motion for new trial which was duly overruled and has perfected his appeal. In this court Fisher seeks to review only the action of the trial court in sustaining Temco's motion for summary judgment, its action in requiring him to re-plead and omit Temco as a defendant, and the court's failure to submit for jury determination fact issues made by plaintiff's pleading and the evidence as against Temco Aircraft Corp. Three points of error are briefed and discussed as a group by Fisher.

The central question to be resolved in this appeal is the effect of the following sections of the lease agreement between Fisher and Temco, to-wit:

'2nd. That the Lessee accepts the premises, building and each appurtenance thereto in their present condition as suitable for which the same are leased, and agrees to allow for changes between the date this lease is executed and the date Lessee occupies said premises.

'3rd. That the Lessor shall at his expense maintain in good repair the roof, foundation and exterior walls of the building. The Lessee shall maintain all glass, including plate glass, and any special store front or equipment. Lessee agrees to give Lessor written notice of defects or need for repairs in roof, foundation or exterior walls of the building.

'4th. That the Lessee shall at his expense keep the interior of the building, including the plumbing, closets, pipes and fixtures belonging thereto, in good repair; and shall take good care of the property and its fixtures and suffer no waste; and keep the water pipes and connections free from ice and other obstructions, to the satisfaction of the municipal or governmental authorities, during the term of this lease.

'All alterations, additions and improvements, except trade fixtures, put in at the expense of lessee shall become the property of the Lessor and shall remain upon and be surrendered with the premises as a part thereof at the termination of this lease.

'At the end or other expiration of the term, Lessee shall deliver up the demised premises in good order and condition, natural deterioration and damage by fire, tornado or other casualty and the elements only excepted.

'5th. That the Lessee shall promptly execute and fulfill all the ordinances of the city corporation or other governmental agency applicable to said premises because of Lessee's use of said premises, and all orders and requirements imposed by the Board of Health, Sanitary and Police Departments, for the correction, prevention and abatement of nuisances in or upon or connected with said premises because of Lessee's use thereof during the said term, all at Lessee's expense.'

Fisher asserts that Temco's obligation under the lease is to keep the interior of the building in good repair, etc., and deliver up the premises in good order and condition at the end of the term, a contractual obligation under which Temco, as a matter of law, is liable for the costs of repair of the ceiling. Fisher does not by designation make an alternative contention, but the effect of his brief and argument is a contention that in the alternative Temco is liable for the cost of repair if the collapse occurred through its fault. In support of this latter contention Fisher directs attention to his pleading wherein the provisions of the Fisher-Temco lease and the Temco-McClure electrical contract are set out together with the testimony of McClure's superintendent and workmen.

Consideration of the record in this respect shows without dispute that Fisher alleged as negligence Temco's failure to inform McClure before the work was commenced that the suspended ceiling would not support the weight of two men at the same time and that McClure was an invitee upon the premises performing work for Temco, and that the ceiling collapsed when two workmen with their tools and material were standing upon boards placed upon channel irons of the suspended ceiling within two or three feet of each other, the weight thus concentrated being approximately 325 pounds. Under this record, such allegation and proof raised a fact issue of breach of the Fisher-Temco lease for jury determination if the provisions of the lease contract heretofore set out make Temco liable for the cost of repair of damage proximately caused by Temco's negligence as alleged.

The provisions of the contract require no construction, unless they are inconsistent, conflicting or found to be ambiguous. See 51 C.J.S. Landlord and Tenant Sec. 232, p. 848. Brief reference to the provisions of the covenants of the lease under consideration indicates a need for construction. The language of the Fisher-Temco lease covenants requires the application of the following general rules of construction to...