Franklin Fire Ins. Co. v. Noll
| Decision Date | 29 January 1945 |
| Docket Number | 17246. |
| Citation | 58 N.E.2d 947,115 Ind.App. 289 |
| Parties | FRANKLIN FIRE INS. CO. v. NOLL et al. |
| Court | Indiana Appellate Court |
Appeal from Superior Court, Allen County; Edward W. Meyers Judge.
Ramon S. Perry, of Fort Wayne, for appellant.
Barrett Barrett & McNagny, Otto E. Grant Jr., and Leigh L. Hunt all of Fort Wayne, for appellees.
This action was instituted by the appellant, Franklin Fire Insurance Company, against the appellees, as the owners and landlord of a certain building to recover is subrogation the amount which the appellant had paid to one of its insured as damages for the destruction of a stock of ladies' apparel and other personal property, caused by water on April 29, 1941.
The complaint alleged in substance the following facts: That the plaintiff is a corporation duly authorized to do business in the State of Indiana and is and was doing business as a fire insurance company; that prior to April 29, 1941, the plaintiff issued a policy of insurance to Nobb's Fashions, Inc., doing business as Nobbson's, covering mercantile stock held for purposes of sale in the premises occupied by the insured at 928 South Calhoun Street, Fort Wayne, Allen County, Indiana, against the hazards of fire and water damage, said policy of insurance being in the principal sum of $5000; that said policy of insurance was in full force and effect on April 29, 1941. It is further averred that the plaintiff's assured, said Nobb's Fashions, Inc., leased the premises at 928 South Calhoun Street, Fort Wayne, Indiana, from the defendants, under and by virtue of a certain written lease, a copy of which said lease is filed with and made a part of the complaint and marked 'Exhibit A'; that said leased premises covered a certain street floor room and the basement room thereunder; that on April 29, 1941, water was discovered leaking from the upper floors of the building, in which the leased premises were located, through the ceiling and walls and into the room occupied by the plaintiff's insured; that the stock of goods in the insured's room covered by said policy of insurance was damaged to the amount of $2,655.13 by said water, which said amount the plaintiff was obligated to and did pay to its said insured, and by reason of said payment said plaintiff became subrogated to all rights, claims, demands, and interests of its insured, Nobb's Fashions, Inc., doing business as Nobbson's, to the amount and extent of such payment.
The complaint then charges that said loss and damage to said stock of wearing apparel, goods, and merchandise was caused by the negligence of the defendants, appellees herein, in each of the following particulars, to wit:
'5. Plaintiff further avers that the defendants and each of them had carelessly and negligently permitted their plumbing in the said Noll Building to become in a bad state of repair, in that the pipe or pipes in the upper floors had begun to leack, thus allowing great quantities of water of flow through the building and into the premises occupied by the plaintiff's said insured.
'6. Plaintiff further avers that the defendants and each of them were careless and negligent in that they failed to properly inspect and check the said plumbing pipe and equipment, and because of said carelessness and negligence, the said plumbing pipe and equipment had become defective and worn out and permitted water to escape from said pipe and to run over onto and into the premises occupied by the said plaintiff's insured.
'7. Plaintiff further avers that the defendants and each of them were further careless and negligent in that an ordinary prudent person could have known and should have known in the operation and maintenance of their said building, that the pipes and plumbing equipment were defective, but that defendants failed to use ordinary care which an ordinary prudent person would have and could have used, and because of said negligence and carelessness on the part of the defendants, water was permitted to escape from the defendants' plumbing equipment into and onto the premises occupied by the plaintiff's said insured.
'8. Plaintiff further avers that the defendants were careless and negligent in not keeping and maintaining said pipes and plumbing equipment in a good state of repair, in that said repairs were not properly made in a good workmanlike manner; and because of said carelessness and negligence, water escaped from the pipes and equipment of the defendants into and upon the property of the plaintiff's said insured.
'9. Plaintiff further avers that the defendants and each of them were careless and negligent in using pipes and plumbing equipment which were out of repair, which defects and lack of repairs were unknown to this plaintiff, who had no access to them, and no right of access to them, but could have been and should have been known to the defendants and each of them; that because of such carelessness and negligence, water was permitted to escape and run onto and into the premises occupied by the said plaintiff's assured.'
To this complaint the defendants filed a demurrer alleging insufficient facts to constitute a cause of action. In the memoranda accompanying the demurrer the defendants assert that the complaint fails to state a cause of action for the reason that the lease which is made a part of the plaintiff's complaint contains a clause which specifically exempts the defendants from liability to the lessee, plaintiff's insured, and that the plaintiff's right and title to the claim asserted in the complaint is derived from said lessee and because of the fact that said lessee cannot recover, the plaintiff has no greater right than its insured. The clause referred to, and which is a part of the lease, reads as follows:
'The Lessors shall not be liable for any damage or injury either to person or property, sustained by the Lessee or other persons, due to the building or any part thereof, or any appurtenances thereof, becoming out of repair, or for any injury or damage occasioned by or from elevators, electricity, hot or cold water, steam or compressed air, or the appliances for the conveyance of either or any of said substances or elements, or by or from plumbing or pipes, or from sewage or sewer gas, or from the bursting, leaking, running or failure to run, overflow or stoppage of any pipes of any kind, or of either connections or attachments, or by or from any tank, wash stand, sink, water closet, or waste pipe or sewers, in, over, upon or about either the said leased building or the premises on which it is located, or for any injury or damage occasioned by or from water, snow or ice being upon or coming through the roof of said building, or through any opening therein, nor for any injury or damage arising from or occasioned by the acts of any other tenant or of other persons therein, or of owners or occupants of adjacent property.'
The court sustained this demurrer and the plaintiff refused to plead further. Judgment was rendered in favor of the defendant and against the plaintiff and an appeal taken to this court.
It is appellant's contention that the clause referred to in the lease, and heretofore set forth, is null and void for each of two reasons, to wit: (a) That its presence in the lease, in view of a very substantial amount of rent called for by the lease, to wit: $650 per month, renders the lease an...
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