Plate Glass Underwriters' Mutual Insurance Company v. Ridgewood Realty Company

• Citation: 269 S.W. 659,219 Mo.App. 186
• Parties: PLATE GLASS UNDERWRITERS' MUTUAL INSURANCE COMPANY, Appellant, v. RIDGEWOOD REALTY COMPANY, Respondent.
• Decision Date: 09 February 1925
• Court: Court of Appeals of Kansas

269 S.W. 659

219 Mo.App. 186

PLATE GLASS UNDERWRITERS' MUTUAL INSURANCE COMPANY, Appellant, v. RIDGEWOOD REALTY COMPANY, Respondent.

Court of Appeals of Missouri, Kansas City

February 9, 1925

Appeal from the Circuit Court of Jackson County.--Hon. Charles R Pence, Judge.

AFFIRMED.

Judgment affirmed.

Ashley & Gilbert for appellant.

Hogsett & Boyle and Chester L. Smith for respondent.

OPINION

TRIMBLE, P. J.--

Defendant is a corporation owning a large business building in Kansas City, which it had leased to the F. P. Burnap Stationery and Printing Company. Plaintiff is a plate glass insurance company in which the Printing Company had a policy insuring it against loss or damage, by breakage of plate glass covered by the policy, from accidental causes beyond insured's control.

While said policy was in force, a windstorm blew out the plate glass front of the ground floor of said building, and insured called upon plaintiff to replace it. The insurance company within twenty-four hours after the glass was blown out, replaced it at a cost of $ 624.02, which is alleged to be, and which plaintiff's evidence shows was, reasonable.

The plaintiff did not know whether the Printing Company occupied the building as owner or tenant, and as the lease does not seem to have been recorded, it seems the insurance company had neither actual nor constructive notice of the terms of the lease.

After replacing the glass, the insurance company discovered that the insured was a tenant of defendant, holding under a five-year lease which provided, among other things, as follows:

"The lessee further agrees that . . . it will make all repairs which are required by lessor to be made during the term of this lease other than repairs necessary to be made on account of damage by fire, cyclone or windstorm, except that the lessor shall make all necessary repairs on the roof and shall keep the outside of the building painted."

The lease further provided that:

"In case said building shall at any time during the term of this lease be destroyed or damaged by fire or other unavoidable casualty so as to render the same unfit for occupancy or for carrying on the lessee's business, and such damage is of such an extent that the same cannot reasonably be restored or repaired within four months, then this lease shall terminate and the lessee shall yield up possession of the said premises and the lessee's obligation to pay any further rent shall cease. If, however, such loss or damage can reasonably be restored or repaired within four months, the lessor hereby agrees to rebuild said building or repair such damage as soon thereafter as the work can be done, and the rent hereby reserved or a fair and just proportion thereof according to the nature and extent of the damage sustained shall be suspended or ratably diminished as the case may be until the said premises have been rebuilt or made fit for use and occupancy."

Upon discovery of the lease with the above terms, the plaintiff brought this suit against the landlord to recover the amount it had expended in replacing the glass, on the theory that by the terms of the lease, the landlord was obligated therein to repair the damage above mentioned, and plaintiff had repaired it in ignorance of that fact, and was entitled to recover of the defendant landlord the expense thereof on the theory that plaintiff only agreed to indemnify the Printing Company against the loss or damage in question, and that by the terms of the lease such loss was primarily the loss of the landlord and should have been borne by it; and that the insurance company was subrogated to the rights of the insured, under a clause in the policy reading as follows:

"In case of replacement or payment for loss under this policy, the Company shall be subrogated to all the rights of the Assured against any person or corporation as respects such loss to the extent of its interest, and the Assured shall execute all papers required to secure to the Company such rights."

After a trial, the court gave, among others, an instruction which in substance told the jury that if defendant was the owner of the building and leased it to the Printing Company, and that while the latter was occupying the building under the lease, the plate glass windows were broken out by a windstorm, and that said Printing Company held plaintiff's policy indemnifying it against such loss, and if, on demand of the Printing Company, plaintiff restored said glass at a cost of $ 624.02 and if said cost was reasonable, and if at the time plaintiff "was ignorant of the fact that under the terms of said lease said Burnap Stationery and Printing Company was not bound under the circumstances of said accident to replace said glass, and that plaintiff replaced same under the belief that it was legally bound to do so," their verdict should be for plaintiff in the sum of $ 624.02 with interest.

The jury returned a verdict for $ 691.10, and, upon defendant's filing a motion for new trial, the court sustained it, stating as a reason therefor that it was "on grounds of error in instructions." Whereupon plaintiff appealed.

The first and possibly most important question to be determined is, do the terms of the lease obligate or bind the landlord to make the repairs involved in this controversy? For, if the landlord is not bound to make them, then plaintiff is not entitled to recover, whatever might be its rights of subrogation where the landlord is bound.

It will be observed that the lease provides that the lessee agrees to "make all repairs which are required by lessor to be made during the term of this lease other than repairs necessary to be made on account of damage by fire, cyclone, or windstorm, except that lessor shall make all necessary repairs on the roof and shall keep the outside of the building painted."

Now, no matter if the above language may seem to imply that since lessee is not obligated to repair damage by windstorm the landlord is so obligated, yet, under the law of landlord and tenant, this, of itself, is not sufficient to bind the landlord to do so. For, under that law, a landlord is not obligated or bound to repair unless he has expressly agreed to do so, and the only express agreement on the landlord's part, in the above clause, is to repair the roof and keep the outside painted. [Kohnle v. Paxton, 268 Mo. 463; Glenn v. Hill, 210 Mo. 291; Piper, etc., Co. v. Dobbin, 195 Mo.App. 435, 437; 24 Cyc. 1081.] A covenant that the lessor will make any repairs is never implied. [Sheets v. Selden, 7 Wall. 416, 423; 24 Cyc. 1087.] The provision that the tenant should make all repairs other than those made necessary on account of windstorm, did not obligate the landlord to make those excepted, it merely relieved the tenant of any contractual obligation to make them. [Kennedy v. Watts, 142 Mo.App. 103, 106; 16 R. C. L. 1033; 1 Tiffany on L. & T. 581; Taylor on L. & T. 400; Healey v. Tyler, 150 Iowa 169.] In other words, even though the tenant might, in fact, have to make such repairs if they were made by anyone, yet, so far as the above terms of the lease are concerned, the repairs here considered were not, by the contract, laid upon the tenant, nor was the landlord bound to make them.

Does the second provision hereinabove quoted bind the landlord to make the repairs involved herein?

It provides that if the building be damaged by fire or other unavoidable casualty "so as to render the same unfit for occupancy, or for carrying on the lessee's business" and is of such extent that it cannot be repaired in four months, then the lease shall terminate; but if such damage can reasonably be repaired within four months, the lessor agrees to rebuild said building or repair such damage as soon as it can be done the rent shall be suspended or ratably diminished, as ...