Mitterlehner v. Mercantile Nat. Bank at Dallas

• Decision Date: 13 March 1964
• Docket Number: No. 16319,16319
• Citation: 378 S.W.2d 137
• Parties: Earl L. (Hark) MITTERLEHNER, d/b/a S & M Distributing Co., Appellant, v. MERCANTILE NATIONAL BANK AT DALLAS, Trustee, Appellee.
• Court: Texas Court of Appeals

Page 137

378 S.W.2d 137

Earl L. (Hark) MITTERLEHNER, d/b/a S & M Distributing Co., Appellant, v. MERCANTILE NATIONAL BANK AT DALLAS, Trustee, Appellee.

No. 16319.

Court of Civil Appeals of Texas, Dallas.

March 13, 1964.

Rehearing Denied April 10, 1964.

Harold B. Berman, Dallas, for appellant.

Brundidge, Fountain, Elliott & Churchill, L. E. Elliott, Dallas, for appellee.

DIXON, Chief Justice.

Earl L. Mitterlehner, appellant, doing business as S & M Distributing Company, brought this suit against his landlord, Mercantile National Bank at Dallas, Trustee, for damages to merchandise stored in a leased building which damages are alleged to have been caused by water leaking from water pipes in the building.

Appellant is in the bonded warehouse business. The merchandise alleged to have been damaged belonged to one of his customers. The Bank is trustee for the Estate of Carl Wallace and Wanda Mae Wallace, owner of the building.

The appeal is from a summary judgment entered in favor of the Bank. The record before us consists of the pleadings of the parties, answers of appellant in response to written interrogatories propounded by appellee, and the deposition of J. L. Willess, a trust officer of the Bank. Several exhibits are attached to the depositions.

PLEADINGS

In his original petition appellant alleges that in a written lease agreement landlord, Bank, Trustee, obligated itself to place in good condition and repair the plumbing in the building but that it failed to do so with the result that water damage occurred in the amount of $3,603.89. In the alternative appellant alleges that the Bank was negligent in that the Bank failed (1) to place the plumbing in good condition, (2) and (3) to cap or cap properly a water pipe, and further, the Bank (4) turned the water on without inspecting all outlets, (5) left the water on after using same, and (6) failed to advise appellant that it had turned the water on.

Appellee, the Bank, in addition to a general denial, pled three provisions of the contract as defenses to appellant's action, which three provisions will be copied in full later in this opinion.

In its unsworn motion for summary judgment the Bank alleges that there is no liability on the Bank for the water damage for the reason that 'no demand was made on the defendant to repair any plumbing prior to the time the damage is claimed to have been sustained.'

In his unsworn reply appellant contends that the lease itself contained notice to appellee to repair the plumbing. He also reiterates his allegations of negligence.

FACTS

On January 18, 1962 the parties entered into a written lease agreement made out on a printed form styled 'DALLAS REAL ESTATE BOARD OFFICIAL FORM--EXISTING BUILDING'.

Our decision in this case depends mainly on the interpretations we give to three paragraphs of the lease and the relationship of these paragraphs to each other. Therefore we deem it well to copy these paragraphs in full:

'2. Tenant acknowledges that it has fully inspected the demised premises, and on the basis of such inspection, Tenant hereby accepts the demised premises, and the buildings and improvements situated thereon, as suitable for the purposes for which the same are leased, in their present condition, with such changes therein as may be caused by reasonable deterioration between the date hereof and the commencement date of this Lease; provided that in the event any presently installed plumbing, plumbing fixtures, electrical wiring, lighting fixtures, or air conditioning and heating equipment are not in good working condition on the commencement date of this lease, Landlord agrees to repair promptly any such defects of which Tenant delivers written notice to Landlord within thirty days after the commencement date of this lease.'

'15. Landlord shall not be liable to Tenant or Tenant's employees, agents, or visitors, or to any other person whomsoever, for any injury to person or damage to property on or about the demised premises, caused by the negligence or misconduct of Tenant, its agents, servants, employees, or invitees, or caused by the building and improvements located on the premises becoming out of repair, or caused by leakage of gas, oil, water or steam or by electricity emanating from the premises, or due to any other cause whatsoever, and Tenant agrees to indemnify Landlord and hold it harmless from any loss, expense, or claims arising out of any such damage or injury.'

'27. Special provisions: Lessor will at his expense place in good mechanical condition the following items:

'1. Air Conditioning Equipment

'2. Electrical Wiring and Outlets

'3. Adjust Doors

'4. Plumbing.'

Paragraphs Nos. 2 and 15 are printed, as are most other paragraphs in the contract, but Paragraph No. 27 is typewritten in a blank space following the printed caption 'Special provisions'.

The lease is for a term of five years commencing February 1, 1962. It provides for rental of $250.00 per month for the first four months and $468.75 per month thereafter. For the first four months the premises were to be used only for warehouse purposes, but in June 1962 appellant expected to and did move his office and office staff into the building.

There is evidence that on January 23, 1962 the Bank employed a maintenance company to clean the building, which had been vacant for some time prior to the time appellant leased it. Nothing further was done to the building by the Bank until June 5, 1962 and June 7, 1962 when a plumbing company employed by the Bank repaired leaks and repaired a commode. This was after the alleged water damage had occurred.

Exhibits attached to the deposition of Willess indicate that the Bank paid a final water bill on January 24, 1962 representing service rendered to January 15, 1962. On January 24, 1962 the Bank returned to the Dallas City Water Works an unexecuted contract form for water service to the building, which contract form the Bank declined to execute 'due to our leasing the building and service being discontinued in our name.' There is no evidence as to whether the water supply was...