King v. Richards-Cunningham Company, 1809

• Decision Date: 09 January 1934
• Docket Number: 1809
• Citation: 46 Wyo. 355,28 P.2d 492
• Parties: KING ET AL v. RICHARDS-CUNNINGHAM COMPANY
• Court: Wyoming Supreme Court

28 P.2d 492

46 Wyo. 355

KING ET AL v. RICHARDS-CUNNINGHAM COMPANY

No. 1809

Supreme Court of Wyoming

January 9, 1934

ERROR to the District Court of Natrona County; C. D. MURANE, Judge.

Action by W. J. King and H. J. Rafferty against Richards-Cunningham Company, a Corporation, for recovery of damages caused to leased premises by an explosion. From a judgment in favor of defendant, plaintiffs bring error. The material facts are stated in the opinion.

Affirmed.

For the plaintiffs in error, there was a brief by E. E. Enterline Madge Enterline and Durham & Bacheller, of Casper, Wyoming and oral arguments by E. E. Enterline and E. Paul Bacheller.

Defendant failed to keep its covenant to make repairs and should have been held liable for damages sustained by plaintiffs as a result thereof. Defendant could not escape liability by subletting the portion of the premises in which the explosion occurred. Geer v. Zinc Company (Mo.) 103 S.W. 151; Jones, L. & T., Secs. 445, 659; 1 Taylor, L. & T. (9th Ed.) Sec. 109; 2 Taylor, L. & T. (9th Ed.) Sec. 448. A tenant's general covenant to repair binds him under all circumstances even though the injury proceeds from an act of God, from the elements, or from the act of a stranger, and if he desires to relieve himself from liability for injuries resulting from any of the causes above enumerated, he must take care to except them from the operation of his covenant. 16 R. C. L. Sec. 605; Arnold-Evans Company v. Hardung (Wash.) 232 P. 290, 45 A. L. R. 9; Willis v Wrenn, 127 S.E. 312; David v. Ryan, 47 Iowa 642; Gettysburg Electric Ry Co. v. Company 200 P. 327; Priest v. Foster, 69 Vt. 417; Black v. LaPorte, 271 F. 620. Defendant agreed to yield up the premises at the end of the term in as good order and condition as when entered upon by lessee, loss by fire, inevitable accident or ordinary wear excepted, and further agreed to keep said premises and buildings in good repair during the lease at its own expense. The exceptions in this lease do not apply to the last clause above mentioned. 16 R. C. L. Sec. 606, pp. 1090-1091; Realty Co. v. Rea (Calif.) 194 P. 1024. If it be assumed for argument, that the exceptions referred to did qualify the clause last referred to, no sufficient plea was interposed to authorize the introduction of evidence tending to establish "inevitable accident" nor was there any sufficient proof introduced by the defendant to establish or prove "inevitable accident" within the meaning of the authorities. Tays et al v. Ecker (Texas) 24 S.W. 954; Rustad v. Lampert (Minn.) 183 N.W. 842; Davilla v. Ins. Co. (Calif.) 299 P. 831; 1 C. J. 493; P. Mutual Life Ins. Co. (Ariz.) 9 P.2d 188; Underhill on Landlord and Tenant, Sec. 527; Peck v. Scoville Co., 43 Ill.App. 360. Inevitable accident means an unusual, unexpected and extraordinary occurrence without participation by the landlord or tenant. French v. Pirnie (Mass.) 134 N.E. 353, 20 A. L. R. 1098; Healey v. Tyler (Ia.) 129 N.W. 802; Woodbury Co. v. Company (Ia.) 148 N.W. 639; Leominster Co. v. Scanlon (Mass.) 137 N.E. 271. It means something unavoidable. 7 Cyc. 314-315; 36 C. J. 150; Hecht v. Coal Co., 19 Wyo. 18. The doctrine of res ipsa loquitur can be applied in this case. Texas Co. v. Cadwell, 237 S.W. 968, 22 N.C. C. A. 371; McClure v. Hoopeston Co., 21 N.C. C. A. 534; 20 C. J. 380-381; Dierks Lumber Co. v. Brown, 19 F.2d 732; Warn v. Davis, 61 F. 63; Hardesty v. Lumber Co., 34 Mont. 151; Damgard v. School Dist. (Calif.) 298 P. 983; Maki v. Hospital, 7 P.2d 228; McComas v. Shows Company (Calif.) 12 P.2d 630; Chiles v. Commission Co., 216 S.W. 11; Kleinman v. Laundry Company (Minn.) 186 N.W. 123. The following authorities established the rule of distinction between a covenant to repair or to keep in repair and a covenant to surrender demised premises at end of term in same condition or in as good condition as when they were received. Warner v. Hitchins (N. Y.) 5 Barb. 666; Levey v. Dyess, 51 Miss. 501; Howeth v. Anderson, 25 Tex. 557; Miller v. Morris, 55 Tex. 412; Wainscott v. Silvers, 13 Ind. 497; Wood v. Long, 28 Ind. 314; Young v. Leary, 135 N.Y. 569.

For the defendant in error, there was a brief by Hagens & Wehrli, of Casper, Wyoming, and an oral argument by Mr. William J. Wehrli.

The provisions of the lease with respect to repairs are essentially two covenants, one requiring repairs to be made during the term of the lease--the other requiring the delivery of the premises at the termination of the lease in a certain condition of repair, and both clauses must be construed together, with the result that the defendant lessee is not liable for any repairs resulting from inevitable accident. Ball v. Wyeth, 90 Mass. 275; Allen v. Fisher (N. J.) 49 A. 477; Kirby v. Davis (Ala.) 97 So. 655; Kann v. Brooks (Ind.) 101 N.E. 513; Herboth v. Co. (Mo.) 123 S.W. 433; May v. Gillis (N. Y.) 62 N.E. 385; Richmond Co. v. Ice Co. (Va.) 37 S.E. 851; Mills v. United States, 52 Ct. Cl. F. 452; Wanamaker v. Co. 120 N.Y.S. 1000; Ducker v. Del Genovese, 87 N.Y.S. 889. The exceptions contained in the first clause apply to the last clause, and the lessee was not obligated to make any repairs which were the result of any exceptions contained in the first clause, such as loss by fire, inevitable accident and ordinary wear. Any ambiguity in the lease must be resolved in favor of the lessee and against lessor. The case of Howeth v. Anderson (Texas) cited by plaintiffs, involved a lease which did not contain a general covenant to repair but did contain a covenant to surrender the premises in as good order as received, excepting usual wear and tear and unavoidable accidents. When carefully read, it is really an authority in support of defendant's contention. See also Machen v. Hooper (Md.) 21 A. 67; Park Bldg. Co. v. Fur Co. (Mich.) 175 N.W. 431; McClintock Company v. Company (Pa.) 103 A. 622; Pierce v. Company 265 F. 148; Niles Company v. Company 234 F. 294; Ingle v. Bottoms (Ind.) 66 N.E. 160; Chamberlain v. Brown (Ia.) 120 N.W. 334; Stein v. Archibald (Calif.) 90 P. 536. The terms of a lease should be given a reasonable construction and one most equitable to the parties. 35 C. J. 1177, 1179 and 1181. And where prepared by lessor, ambiguities or uncertainties should be resolved against him. (See above authorities). Only two elements are necessary to constitute inevitable accident. (a) An occurrence of an unusual and unexpected or extraordinary character. (b) Lack of negligence on the part of the defendant, or party sought to be charged. The authorities cited by plaintiffs in error with reference to inevitable accident, in fact support our contention. A boiler explosion is an inevitable casualty. John Morris Co. v. Southword (Ill.) 39 N.E. 1099; Phillips v. Dyeing Co., 10 R. I. 458. Also a fire occurring without the fault or negligence of the defendant. Kelly v. Duffy (Pa.) 11 A. 244. A leading case is Hodgson v. Dexter, 1 Cranch 109. The doctrine of res ipsa loquitur can have no possible application in this case because the defendant did not have possession or control of the agency or instrumentality causing the injury. There is a conflict of authority as to whether the doctrine applies in any case of boiler explosion. 23 A. L. R. 484; 45 C. J. 1193. It cannot operate unless the injuring agency was under the control of defendant. 45 C. J. 1205, 1214. When a sub-lease is made, the sub-tenant is entitled to possession. 35 C. J. 1001. The authorities cited by plaintiff in error in support of the application of the doctrine, when carefully read, will be found to contain exceptions involving negligence on the part of defendant, or where the destroying agency was under his control. As against this we cite: Actiesselskabet Ingrid v. Railroad Company, 216 F. 72; Sullivan v. Ry Co. (Minn.) 200 N.W. 922; Carter Oil Co. v. Company (Okla.) 232 P. 419; Heffner v. Northern States Power Company (Minn.) 217 N.W. 102; Conley v. United Drug Co. (Mass.) 105 N.E. 975. We fail to see any merit in plaintiff's contention that defendant's answer is insufficient to raise the defense of inevitable accident. Plaintiffs' petition alleges that the damage was caused by an evplosion, but does not allege that defendant owned, possessed, managed or controlled the tank which exploded. Negligence is never presumed. Hodgson v. Dexter, supra; Conley v. Company, supra. Plaintiffs having plead the exception by annexing a copy of the lease and the damage resulting from an explosion and failing to plead that the damage resulted from any negligent acts of the defendant, admit that the damage resulted from an inevitable accident. The petition was in fact demurrable. Ducker v. Del Genovese, supra. Moreover, defendant's evidence overcomes any presumption or inference of negligence which might arise from the application of the doctrine of res ipsa loquitur. 45 C. J. 1221; Colorado Springs v. Reese, (Colo.) 169 P. 572. On the subject of interest we refer to 36 C. J. 169. The purpose of showing the sub-lease was to show that defendant did not have possession of the premises or of the refrigerating plant. The fuel used in connection with the plant was natural gas, a highly explosive substance. If the explosion, or explosions were caused by natural gas, there is nothing in the record to establish negligence against the defendant. Or, if there were two explosions, one of gas and the other a boiler explosion, it would be impossible to say from which the damage resulted. In any event, whatever explosion or explosions may have occurred, and from whatever cause or causes, it was an inevitable accident because there is not the slightest evidence of negligence on the part of the defendant. The judgment should be affirmed.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

Plaintiffs in error W. J....