Simmons v. Pagones

• Decision Date: 12 November 1938
• Docket Number: 8170.
• Parties: SIMMONS v. PAGONES.
• Court: South Dakota Supreme Court

282 N.W. 257

66 S.D. 296

SIMMONS v. PAGONES.

No. 8170.

Supreme Court of South Dakota

November 12, 1938

Appeal from Circuit Court, Brown County; Howard Babcock, Judge.

Action by Marie O. Simmons, lessee of the ground floor of a building, against P. J. Pagones, owner of the building, for damages sustained when the water meter on the second floor came loose and caused a large quantity of water to fall upon the merchandise and fixtures of the plaintiff. From judgment for the plaintiff and an order overruling defendant's motion for a new trial, defendant appeals.

Affirmed.

Geo. H Fletcher, of Aberdeen, for appellant.

Van Slyke & Agor, of Aberdeen, and E. D. Barron, of Sioux Falls for respondent.

WARREN Judge.

This action was commenced by plaintiff to recover damages to certain merchandise and fixtures allegedly sustained through the negligence of the defendant. The plaintiff had entered into a lease agreement with defendant whereby plaintiff was to have the use of the ground floor of a two-story building owned by defendant.

Some time after the lease was executed between the parties a water meter was installed in the washroom adjoining one of the second floor offices. This meter was so constructed that it was susceptible to weather changes and in case of expansion to the freezing point, the bottom part of said meter would fall off. On the night of December 6th, 1936, the temperature out of doors dropped to some fifteen degrees below zero, and it is the claim of plaintiff that defendant negligently allowed the temperature in the washroom to drop so low that the bottom of the meter dropped off and allowed water to flow from the meter. This water coming from the meter on the second floor did considerable damage to plaintiff's merchandise and fixtures on the first floor. There is also evidence that a ventilator or skylight in the washroom had been left open.

Upon trial of the action, the jury returned a verdict for the plaintiff. A motion for new trial was thereafter made and the motion denied. The appeal to this court is from the judgment and order denying the motion for new trial.

Appellant contends that he is not liable in damages because of the provision in the lease exempting him from liability. It reads: "It is further agreed that party of the first part shall not be liable to party of the second part for damages caused by bursting or leaking pipes on second floor of said building."

It is the contention of appellant that the trial court was in error when it presented to the jury the question of whether or not the water meter which was installed came within the above clause. Appellant argues that the water meter is the same as the water pipes. A decision on this question is not necessary to the disposition of this case. For the purposes of this opinion, we shall assume, without so deciding, that the water meter comes within the clause in the lease exempting the appellant from damages caused by leaking water pipes. However, after making this assumption, we are confronted with the question of whether the clause in the lease exempting the appellant from liability is broad enough to exempt him from liability for negligence in the installation and care of this meter. Such clauses and provisions in leases are to be construed so as not to include any damage not expressly waived. Le Vette v. Hardman Estate et al., 77 Wash 320, 137 P. 454, L.R.A.1917B, 222; Martindale Clothing Co. v. Spokane & Eastern Trust Co. et al., 79 Wash. 643, 140 P. 909; Oscar Ruff Drug Co. v. Western Iowa Co., 191 Iowa 1035, 181 N.W. 408, 15 A.L.R. 962; Randolph v. Feist, 23 Misc. 650, 52 N.Y.S. 109. In following this rule of construction, the courts have generally held, in the absence of an express stipulation exempting the landlord from liability for negligence, that a provision in a lease exempting the landlord from liability does not apply where the damage sustained is the result of active negligence on the part of the landlord. Note and collection of cases in 84 A.L.R. 659.

This brings us to the vital question, is the evidence sufficient to support the verdict and judgment of the trial court that the appellant was negligent in the installation and care of the water meter. An examination of the record discloses that the appellant leased the ground floor to respondent and rented the second floor for offices. Appellant furnished the...