Le Vette v. Hardman Estate

• Citation: 137 P. 454,77 Wash. 320
• Court: United States State Supreme Court of Washington
• Decision Date: 08 January 1914
• Parties: LE VETTE v. HARDMAN ESTATE et al.

137 P. 454

77 Wash. 320

LE VETTE v. HARDMAN ESTATE et al.

Supreme Court of Washington

January 8, 1914

Department 2. Appeal from Superior Court, King County; Boyd Tallman Judge.

Action by Mabel Le Vette against the Hardman Estate and another. From an order of nonsuit and dismissal, plaintiff appeals. Affirmed in part, and reversed in part.

McCafferty Robinson & Godfrey, of Seattle, for appellant.

Reed &amp Hardman and Robt. F. Booth, all of Seattle, for respondents.

MORRIS J.

Appeal from an order of nonsuit and dismissal, in an action brought by a tenant to recover damages for injuries to her goods caused by leakage of water from an upper story. The facts, so far as they are pertinent to our inquiry, are about these: The Hardman Estate is the owner of a building on Yesler Way in Seattle, the lower portion of which is divided into storerooms, and the upper is used as a hotel. Appellant, who was engaged in the millinery business occupied one of the storerooms under a written lease. Some time in August, 1911, the lessee of the hotel portion, although his lease had not expired, vacated the upper stories, and they continued vacant until after the damage complained of. This lessee not having paid his water rent, the city turned off the water from the hotel portion of the building some time in September. This water service so turned off, it appears, did not affect the storeroom occupied by appellant. There was, however, a dwelling on the rear of the lot which was supplied with the same service pipe as the hotel and which had been vacated for some time. This vacant dwelling in the rear was rented on November 15th and orders given the city to turn on the water, which was done on November 16th. Soon after the water was turned on, it began to flow through the ceiling and into the room occupied by appellant, causing the damage complained of. An examination of the premises disclosed the fact that, in one of the rooms over the storeroom occupied by appellant, a washstand had been torn from the wall and the water pipes broken, making quite a hole through which the water was escaping. It was also discovered that a large rear window opening on the alley had been broken, making an opening large enough for a person to enter the building. It was also shown that, on three other occasions during the vacancy of the hotel portion, the windows on the alley had been broken, supposedly by boys getting into the building. The lease contained the following clause: 'That the said lessee shall hold harmless the said lessor and the said lessor's agents from all damages of every kind or nature whatsoever that may occur by reason of any accident on said premises, and from any damage done or occasioned by or from plumbing, gas, water, steam, or other pipes or sewerage; or the bursting, leaking or running of any cistern, tank, washstand, or wastepipe in, above, upon or about said building or premises; and from any damage occasioned by water, snow, or ice being upon or coming through the roof, skylight, wall, trapdoor, or otherwise, and from damages arising from acts of neglect of cotenants or other occupants of the same building, or of any owners or occupants of the adjacent or contiguous property.' This stipulation, in the judgment of the lower court, exempted the respondents from any responsibility in the matter and was the basis of the ruling complained of. Stipulations of this character cannot be enlarged upon to include any damage not expressly waived, and it is generally held that such a stipulation will not excuse an injury occasioned by the negligence of the landlord in the management and use of any part of the premises remaining under his control. Levin v. Habicht, 45 Misc. 381, 90 N.Y.S. 349; 1 Thompson on Negligence, § 1143. It has also been held that such stipulations cover only ordinary wear and tear, or sudden action of the elements which could not be guarded against, or...