Richker v. Georgandis

• Decision Date: 02 April 1959
• Docket Number: No. 13171,13171
• Parties: I. RICHKER et ux., Appellants, v. A. GEORGANDIS, Appellee.
• Court: Texas Court of Appeals

Page 90

323 S.W.2d 90

I. RICHKER et ux., Appellants, v. A. GEORGANDIS, Appellee.

No. 13171.

Court of Civil Appeals of Texas, Houston.

April 2, 1959.

Rehearing Denied April 23, 1959.

Al L. Crystal, Houston, for appellants.

James N. Adams, Houston, for appellee.

BELL, Chief Justice.

Appellee was the tenant of appellants in the premises located at 302-304 Fannin Street in Houston where he operated a restaurant. The original lease was for a five year term with an option to renew for five years, the option to be exercised six months prior to the expiration of the original term. In July of 1954 the option to renew was exercised.

Appellee on April 5, 1955, filed suit against appellants, alleging that appellants had breached the implied covenant of peaceable and quiet enjoyment. The acts which were alleged to constitute the breach were that during September 1954 appellants and those acting under them erected a barricade in front of the cafe operated by appellee in connection with remodeling work to be done on the Fannin Building, of which appellee's premises were a part; that the barricade severely impaired the view of appellee's place of business from the public, and that it interfered with the safety of those entering the cafe and interfered with the accessibility of the premises. Too, it was alleged that appellants and those acting for them utilized the space in front of the cafe to dump and dispose of trash and other materials which caused the cafe to become polluted with dust. Further, it was alleged that severe noise and disturbance were created; that the electric current serving the place was intermittently interrupted and that the sign in front of the cafe was removed. Appellee alleged that he had sought to obtain relief by communicating with appellants, but appellants had failed and refused to do anything to abate or minimize the conditions. Further, it is alleged that instead of taking any steps that would grant relief to appellee, appellants told appellee he could move out. By virtur of these acts, it is alleged that appellants intended to deliberately destroy appellee's business.

Appellee prayed that his rents be abated from September 1954 until such time as the breach of his covenant should cease. He further alleged damages for lost profits in the amount of $20,000. He further prayed for injunctive relief.

Appellants answered, denying all allegations and pleading affirmatively that by paragraph 3 of the lease appellee agreed to save appellants harmless from any and all damages however such damages should be caused.

The case was tried to a jury and the following issues were submitted and the following answers were given to the issues:

1. Do you find from a preponderance of the evidence that the barricade in question constituted an unreasonable obstruction of plaintiff's place of business?

Answer: We do.

2. Do you find from a preponderance of the evidence that the premises in question were rendered unusable for the purpose for which they were leased by the erection of the barricade in question?

Answer: We do.

3. Do you find from a preponderance of the evidence that plaintiff was materially damaged by the erection of said barricade?

Answer : We do.

4. From a preponderance of the evidence what sum of money, if any, do you find would reasonably compensate plaintiff for such damages, if any, suffered by him as a direct and proximate result of the erection of said barricade?

Answer: $15,000.

Judgment was rendered on the verdict in favor of appellee.

Appellants seek reversal of the judgment on the following grounds:

1. The appellee, as a matter of law, is not entitled to recover against appellants because under paragraph 3 of the lease appellee agrees appellants shall not be liable for any damage suffered by appellee. Paragraph 3 reads as follows:

'Lessor shall not be liable for any damages, loss or injury to the person or property or effects of lessee or any other person or persons whomsoever suffered on, in or about the said premises or upon the streets or sidewalks in front of or adjoining same by reason of water, leakages or present, future or latent or other defects or weaknesses in the form, character or condition of the said premises or any party or portion of same or from any other source or cause whatsoever or for any repair or other work done upon said premises or any part of the same or from any negligence of lessee or lessee's servants, agents, employees or contractor, and lessee agrees to indemnify protect and save harmless lessor against any and all such damages or things.'

2. There is no evidence in the record showing an actual or constructive eviction, as a matter of law, and no jury finding of an eviction or the elements thereof, so there is no showing or finding of the breach of the covenant for peaceful and quiet enjoyment.

3. There is no evidence of negligence in the erection or maintenance of the barricade and as a matter of law, therefore, appellee failed to prove a breach of the covenant of peaceful and quiet enjoyment, but even if there is evidence of negligence there is no jury finding of negligence so no judgment could be predicated on negligence.

4. The Court erred in refusing to submit their requested special issue reading as follows:

'Do you find from a preponderance of the evidence that the plaintiff was exposed to any greater damage by reason of the erection or maintenance of the barricade any more so than any of the other tenants on the ground floor of the building?'

5. The Trial Court erred in admitting in evidence, over appellants' objection, testimony of appellee as to the amount of his investment in the leased premises.

6. The Court erred in submitting the issue on damages as there was no sufficient or competent proof upon which a jury could base a finding for lost profits, and any finding would be conjectural and speculative.

7. There was error in the action of the Trial Court in overruling appellants' motion for new trial because of jury misconduct, the misconduct consisting in the receipt by the jury of evidence not in the record but given by one of the jurors in the jury room.

Appellee presents here two theories of liability. His first theory is that the acts of the appellants constituted such a disturbance of his use and enjoyment of the premises that his business was destroyed and he had to move and that these acts constituted a breach of the implied covenant for peaceful and quiet enjoyment of the premises. His second theory of liability is that independent of any such covenant, appellants' conduct was tortious and his business having been destroyed he is entitled to recover his damage, they being his lost profits.

We must review the testimony. We might say in this connection that it is not possible for us to accurately portray the barricade complained of because much of the description given by the witness was in connection with a drawing that we have not been furnished, and various pictures of the barricade were introduced in evidence but they have not been furnished us. They were, however, all before the jury and in answering the issues submitted the jury had benefit of them. The following is the substance of the testimony given by appellee:

The Fannin Building is located in the 300 block of Fannin Street, being on the west side of Fannin Street across from the Harris County Civil Courts Building. Its northeast corner is a point about 25 feet from the interesection of Fannin and Congress Streets. It runs along Fannin Street south to a point about 50 feet north of Preston Street. The space occupied by appellee was about 22 feet across, fronting on the sidewalk. It was the 22 feet at the north end of the building. The sidewalk in front of the building was about 6 feet wide. Appellants' space was about 25 feet from the main entrance to the building. Appellee had a sign reading 'Savoy Cafe' on the building above his entrance and extending partially over the sidewalk. This advertised appellee's place of business. Appellee denies he was ever notified that remodeling of the building was going to occur. The work started the last part of August, 1954. In August 1954 appellants or the contractor for them took down the sign without asking him about it. Then the barricade was erected the entire length of the building from a point two feet from the north end to the south end. It ran across the sidewalk and about two feet into the street. The barricade was about 36 inches wide on the sidewalk. Passage was cut down by one-half. There is then this question: 'Now all of this area in here was blocked to the public?' The answer was: 'Yes sir.' (This will illustrate the difficulty encountered when we are called on to review the facts. We cannot ascertain what area was referred to.) The barricade was tall enough to allow a six-foot tall man to walk through. Then, in the testimony there is this question: 'Does this fairly represent the area that was blocked?' The answer was: 'Yes, sir.' (Again, we cannot ascertain what area was referred to.) There was an entrance to allow the public to enter the 36-inch area. Materials were stored in the barricade, i. e. lumber, lime 'an all that.' The workmen used wheelbarrows and trucks to go inside the barricade. This all prevented the public from going through the barricade. In the barricade were stored trash and building material. There was noise from air compressors and trucks. Dust in great quantities came into the place. On October 25, 1954, appellee wrote appellants a letter complaining about the barricade and the effect it was having on his business. He asked for some adjustment while construction was going on. This letter went unanswered. He continued to complain to appellants or the building manager, but nothing was done. On December 1, 1954, appellee wrote a letter to appellants complaining that his electricity was cut off without notice, causing $63 of food to spoil. Too, one of the front windows was...