McKenzie v. Western Greenbrier Bank

• Decision Date: 27 February 1962
• Docket Number: No. 12105,12105
• Citation: 124 S.E.2d 234,146 W.Va. 971
• Court: West Virginia Supreme Court
• Parties: Barbara McKENZIE et al. v. The WESTERN GREENBRIER BANK, a Corporation, etc.

Page 234

124 S.E.2d 234

146 W.Va. 971

Barbara McKENZIE et al. v. The WESTERN GREENBRIER BANK, a Corporation, etc.

No. 12105.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 1962.

Decided Feb. 27, 1962.

Syllabus by the Court

1. A lessee is under no duty to remove, at the expiration of a lease, permanent fixtures or improvements made with the consent of the lessor or under the authority or provisions of the lease in the absence of an express requirement so to do.

2. A lessee in this State is not required to pay for repairs under a covenant in thelease to keep the premises in good repair, ordinary wear and tear excepted, unless it is shown that such damage was caused by his fault or negligence; and the burden of showing such fault or negligence rests upon the lessor.

Mahan, Higgins, Thrift & Graney, Charles E. Mahan, Fayetteville, for appellant.

John L. Detch, Andrew Detch, Lewisburg, for appellees.

BERRY, Judge.

This is an action for damages brought under the Rules of Civil Procedure for Trial Courts of Record, effective in this State July 1, 1960. The action is based upon a lease involving a building situate in East Rainelle, West Virginia. The plaintiffs, Barbara McKenzie and J. V. McKenzie, lessors, instituted this action against the defendant, The Western Greenbrier Bank, a Corporation, lessee, to recover cost of removing a bank vault encasement placed in a building by the lssee and for cost of repairs to the building in question, all of which is based on a written lease between the parties. The case was submitted to the jury on the theory of an absolute contractual liability for any damage or injury to the building without considering whether the same was caused by the fault or negligence of the lessee. The jury returned the verdict in favor of the plaintiff in the amount of $13,443.30. The trial court entered judgment on the verdict and overruled a written motion to enter judgment for the defendant, to set aside the verdict and to grant it a new trial, to which judgment and ruling this Court granted an appeal and supersedeas.

The plaintiffs purchased the land upon which the leased building was constructed from A. P. Martin and wife some time before 1950. The Martins started construction of a building on the lot when they owned it but abandoned such construction after footers for the building had been poured. This building was completed by the plaintiffs after purchasing the lot and the first floor thereof was leased to the defendant bank. This bank was formerly known as The Bank of Quinwood, and was located at Quinwood, West Virginia. In May, 1950, the bank desired to move its location from Quinwood to East Rainelle, West Virginia, and on May 26, 1950, entered into an option agreement with the plaintiffs for the lease of the first floor of the building owned by plaintiffs in East Rainelle upon certain terms and conditions stated in the option with the provisions that upon the exercise of the option the lease of said premises would commence on the first day of June, 1950. It further provided, among other things, that the defendant bank had the right to make afterations, additions and improvements to the interior of said premises without any liability for damages which might result therefrom.

After the option was obtained the defendant bank in accordance with the provisions of the option, made certain alterations, additions and improvements to the interior of said premises which included the installation of a bank vault to be used for banking purposes. This vault was constructed and installed under the right to do so given under the terms or conditions of the option before the execution of the lease on said premises. The defendant bank gave notice of its exercise of the option to lease the premises on June 28, 1950, and the lease in question was executed on August 3, 1950, but it was dated June 1, 1950, in accordance with the provisions of the option.

Certain changes were made in the lease from the provisions contained in the option. Paragraph 6 of the lease provides that the lessors shall make all necessary repairs to the exterior of the premises, including the plate glass windows and fixtures appurtenant to the building on the inside, and that the lessee shall be responsible for all other repairs to the interior, unless the damage necessitating repairing was caused by the negligence of the lessors or other tenants, including all interior painting, remodeling and redecorating.

Paragraph 8 of the lease contained the provisions giving the lessee defendant bank the right, at its own expense and at any time, to make alterations, additions and improvements to the nterior of the premises, but omitted the wording appearing in the option 'without any liability for damages which might result to said premises as a consequence thereof.'

Paragraph 14 of the lease provided for peaceable possession of said premises to be given by the lessee to the lessors at the termination of the lease 'in as good condition as the same are now in, usual wear and tear, fire and unavoidable casualty excepted', which was provided for in the option, with the words 'including any other exceptions herein contained' added in the lease at the end of paragraph 14.

Paragraph 11 of the lease contained the same provisions as the option, giving the lessee the right to remove at the end of the term all personal property, fixtures and vault equipment and parts belonging to the lessee in, on, or attached to the said premises.

The rent was also increased from $150.00 per month, as contained in the option, to $161.66 per month, as contained in the lease.

The footers for the building were 24 inches wide, 18 inches deep, with 6 inches underground and 12 inches above the ground, and were made of cement and field stone, with mine rails inserted to reinforce them. The walls of the building consisted of 8 inche cinder blocks on the inside and 4 inch brick veneer on the outside. The second floor of the building consisted of apartments and was supported by I beams placed on pilasters in the walls. A footer was placed in the middle of the building for a partition wall. The building weighed over 220 tons and created a pressure upon the footers of about 1200 pounds per square foot. The concrete vault was built inside the building and was placed upon a separate foundation on much larger footers. The bank vault weighed over 100 tons and created a pressure of about 900 pounds per square foot on its separate footers.

About a year after the defendant bank occupied the leased premises it was necessary to have a leak in the front of the building repaired, and about three or four years after the premises were leased certain cracks were observed in the floor and walls of the building. By the end of the ten year term of the lease the footer in the east wall was broken, and cracks had appeared in the walls, and in the wall on the east side where the bank vault had been constructed the cracks were as wide as 2 inches. The cracks also appeared in the floor of the building which had settled in some places and risen in others. Numerous cracks were around or near where the bank vault had been installed. The bank vault appeared to be as solid as when it was installed. However, the plaintiff's witnesses claimed that it had settled somewhat.

At the end of the ten year term of the lease the bank did not exercise its option for additional term and surrendered the premises to the lessee plaintiffs, after making certain minor repairs. The plaintiffs then demanded that the defendants remove the vault encasement and make major repairs to the interior and exterior of the building, which the defendants refused to do, relying on the provisions contained in the lease for such refusal.

It is the contention of the defendant bank that the vault in question is a permanent fixture and is part of the realty, although it did remove certain metal parts of the vault, including the door which could be used in the banking business.

The evidence with regard to the damage to the plaintiffs' building was to the effect that it would cost about $5000.00 to remove the vault and amount $8000.00 to repair the damage to the building. Notwithstanding the provisions contained in both the option and the lease, the plaintiffs contend that, although they knew that vaults were necessary in the banking business and had visited the bank on numerous occasions during the lease, they did not know the defendant had constructed the bank vault in the building.

The theory upon which the plaintiffs tried this case, as clearly indicated by the pleading and evidence, was that the defendant was liable to the plaintiffs on a contractual basis under the provisions of the lease for the failure to remove the vault encasement and to repair any damage to the building. No attempt was made by the plaintiffs to show any fault or negligence on the part of the defendant in the construction of the vault or in causing the damage to the building. It is the contention of the plaintiffs that it is not necessary for them to do so.

The questions to be answered in this case are whether the defendant bank, under the provisions of the lease, is required to remove the concrete vault encasement or to pay for the cost thereof, and, second, whether the defendant bank is required to repair the damage to the floor and walls of the building in question, under the conditions or provisions of the lease, or to pay for damages thereof.

It is interesting to note that most cases involving fixtures put on leased premises deal with the right of the lessee to remove such fixtures, and are usually governed by provisions or conditions contained in the lease. 8 M.J., Fixtures, § 9; 36A C.J.S. Fixtures § 15; Childs v. Hurd, 32 W.Va. 66, 9 S.E. 362; Jones v. Shufflin, 45 W.Va. 729, 31 S.E. 975; Snuffer v. Spangler, 79 W.Va. 628, 92 S.E. 106, L.R.A.1918E, 149; Pocahontas Coal & Coke Co. v. By-Products Pocahontas Co. et al.,...