Larson v. City of Minneapolis
| Decision Date | 09 March 1962 |
| Docket Number | No. 38410,38410 |
| Citation | 114 N.W.2d 68,262 Minn. 142 |
| Parties | Norma F. LARSON et al., Respondents, v. CITY OF MINNEAPOLIS, Respondent, Penn--54th, Inc., Appellant, Settergren Hardware and Variety, a partnership composed of Phillip Settergrenand Dale Settergren, Respondent. |
| Court | Minnesota Supreme Court |
SYLLABUS BY THE COURT
1. Indemnity is essentially an equitable doctrine and does not necessarily depend for existence upon express contractual provisions. It may be implied in a particular case from surrounding facts and circumstances.
2. The right to indemnity, which rests upon principles of equity, may be appropriately applied in circumstances, such as those set forth in the opinion, where it is invoked to protect one who is legally liable but morally innocent against another whose wrongful conduct or omission has caused liability to be imposed upon him.
Freeman, Hoppe & Kennedy and Robert J. Healy, Minneapolis, for appellant.
Ryan, Kain, Mangan, Westphal & Kressel, William P. Westphal, Minneapolis, for respondent Settergren Hardware and Variety.
Dorfman & Rudquist, Minneapolis, for respondent Larson.
Keith Stidd, City Atty., G. V. Johnson, Asst. City Atty., Minneapolis, for respondent City of Minneapolis.
This is an appeal from a judgment granting the defendant and cross-complainant, Settergren Hardware and Variety, a partnership, indemnity against defendant and cross-complainant, Penn-54th, Inc., which indemnity arose out of a judgment recovered by plaintiffs in a personal injury action against both of the above-named defendants and the city of Minneapolis. The defendant Penn-54th, Inc., is the owner of a shopping center in the city of Minneapolis. Settergren Hardware and Variety is one of its tenants. In the discussion which follows Penn-54th, Inc., will be referred to as the landlord, and Settergren Hardware and Variety will be referred to as the tenant. The landlord appellant asserts that the court erred in granting indemnity in that there is no basis for it in law or in fact.
From the record it appears that Norma F. Larson, one of the plaintiffs, fell over a pipe located in the boulevard in front of the leased premises. The pipe protruded 2 or 3 inches above the ground but was hidden by grass and leaves. The accident occurred on November 11, 1957, 71 days after the tenant took occupancy. The pipe was installed by the landlord. It served to connect the store with the city water system and contained a shutoff value near the ground level. Ordinarily such pipes are level with the ground, but it appears that this one had protruded above ground level for some time prior to the accident.
The plaintiffs, Mrs. Larson and her husband, started the action against the landlord, the tenant, the city of Minneapolis, and the plumbing contractor who installed the pipe. All of the defendants cross-claimed for indemnity against one another. By stipulation of the parties it was agreed that the issues arising from the cross-claims for indemnity should be determined by the court after the jury verdict. At the close of plaintiffs' evidence the court dismissed the action against the plumbing contractor. After the verdict was returned for plaintiffs, the remaining defendants joined in a motion for judgment notwithstanding or for a new trial, which was denied. The court thereafter considered the parties' cross-claims for indemnity and found that the city of Minneapolis and the landlord had failed to establish their rights to indemnity. He further found that the tenant had established a right to indemnity as to the landlord but not as to the city of Minneapolis. The landlord appeals from the judgment entered pursuant to the court's findings. No appeal has been taken by the city.
The court adopted the findings of the jury by its verdict to the effect that all three defendants were negligent in the maintenance and care of the pipe located in the boulevard area. The findings recite:
'That as between the parties, the defendant City of Minneapolis was bound under its duty to maintain streets and highways, including sidewalks and boulevards, in a safe condition; that Penn-54th, Inc., the owner of the property, was bound by its ownership to maintain the premises, having installed the pipe and having the duty of maintaining the approaches to its building in a safe condition; that the lessees, defendants Settergren, as to the public, also had the same obligation.'
The record does not contain evidence of actual notice to the defendants of the dangerous condition existing on the boulevard. Liability is based upon constructive notice of the condition to the defendants for a sufficient time before the accident occurred to constitute negligence for failure to remove it. The landlord contends that the trial court's finding to the effect that it was under obligation to maintain and repair the boulevard area is contrary to the evidence and the law; that there are no provisions in the lease from which an agreement to indemnify the tenant can be found; and, furthermore, that the lease contains an exculpatory clause by which the tenant has waived indemnity for liability on account of personal injuries to third persons growing out of its occupancy of the premises.
1. It is agreed that the offending pipe was installed in 1950 when the shopping center was built and was owned and paid for by the landlord or its predecessor in interest. When the tenant took possession on September 1, 1957, the pipe was protruding above the ground in the boulevard. The space leased to the tenant was not referred to by legal description in the lease but was identified as '5403--5405--5407 Penn Avenue South.' Three other tenants, including a grocery supermarket, conducted their business on the property. The landlord contends that the tenant had equal control and possession with it of the boulevard and was under the same duty and obligation to those who used that area. It argues that without language in the lease creating the right of indemnity the tenant is not entitled to relief. 1 A helpful memorandum, which is made a part of the court's findings, indicates that all of the landlord's arguments were fully considered and that the court came to the conclusion that there was an implied agreement on the part of the landlord to indemnify the tenant under the circumstances.
The landlord let to the tenant the 'premises' described in the lease and agreed 'to maintain & keep in repair, the outside of the building and the roof.' The tenant, in addition to the payment of rent and other usual conditions, agreed to 'keep said premises continually in a neat, clean and respectable condition' and to 'keep the sidewalks in front and along said premises cleared of ice and snow, or other obstructions or objectionable thing.' The word 'premises,' the purport of which is disputed by the parties, may have various legal meanings depending upon context and situation. Under the particular circumstances of this case, we think the trial court correctly construed the term to apply to the space the tenant occupied in the conduct of its business as identified by the street address, with the accompanying obligation to keep the sidewalks in front and along the store space cleared of ice, snow, and other obstructions. The lease makes no reference to the boulevard or other areas used in common by the landlord's tenants and their customers.
Essentially the landlord's claim rests on the proposition that the tenant was also in control of the 'premises,' which not only includes the specific space leased and sidewalks in front of it but the boulevard as well. This claim might be substantiated if, by a reasonable interpretation, the lease could be construed to mean that the tenant was under obligation to maintain and repair the boulevard. The trial court, however, was persuaded to hold that the boulevard was not included in the term 'premises,' not only from the language of the instrument itself, which was prepared by the landlord, but by the construction placed upon it by the parties themselves. 2 The testimony relied upon by the court was elicited from one Charles J. Tack, vice president of the landlord corporation. The pertinent portions of his testimony follow:
'Q. You mentioned, I believe, that you supervise the properties for the Penn-54th, Inc., is that correct?
'A. Between myself and John H. Lein.
'Q. There are other properties that the Leins own separately, in addition to those held by the Penn-54th, Inc.?
'A. That's right.
'Q. And when you...
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