Waters v. Merritt
| Decision Date | 05 March 1964 |
| Docket Number | 6 Div. 937 |
| Citation | 277 Ala. 346,170 So.2d 492 |
| Parties | Anna Lois WATERS v. Frank V. MERRITT. |
| Court | Alabama Supreme Court |
Pritchard, McCall & Jones and Victor H. Smith, Birmingham, for appellant.
Cato & Hicks, Birmingham, for appellee.
Appellee-plaintiff, Frank V. Merritt, recovered judgment in the Circuit Court of Jefferson County, Alabama, in an amount equal to two months' rent of a commercial building fixed by the terms of a written lease. From this judgment, rendered by the trial judge, without the aid of a jury, appellant-defendant appeals with appropriate assignments of error that are adequately argued in compliance with the rules of this court.
It is undisputed that the building, on or about February 15, 1959, was 'gutted' (using a colloquial term) by fire. Pursuant to the terms of the rental agreement, plaintiff cancelled the rental agreement effective April 15, 1959. Thereafter, he rebuilt the building which was never occupied by appellant or her tenant after the fire.
The testimony without dispute shows that the major portion of the roof collapsed from the fire and fell to the floor, made part of concrete and part of wood, which was thoroughly soaked from standing water used to extinguish the fire. The major portion of the 'old theatre' part collapsed. There was a small area on the front that had been a balcony and the entrance lobby that remained standing.
The west, east and south walls of the building, which was about 40 feet wide and 150 feet long, remained standing. The walls were made of brick and concrete blocks. The marquee and the portion where the motion picture projector was used remained standing. Three of the walls, the interior surface of which was damaged, together with some of the bricks, were used, along with the flooring, when the building was rebuilt.
The building as originally built was designed for a moving-picture theatre, with sloping floors, projector room, lobby and a marquee for display of lights. A short while after the rental contract was signed, the lessee subrented the building for use as a furniture store.
The issue presented by the pleadings and the evidence is whether or not the leased building was entirely destroyed so as to nullify the lease, which contains a provision as follows:
'This lease shall become null and void in the event said building should be entirely destroyed by fire or other casualty, or in the event the building should be condemned and ordered torn down or removed by due process of law, and the liability of the lessee for the rents thereafter accruing shall cease upon the happening of said events.'
The lease makes provision for rent should the building be damaged by fire to the extent of 50% or more.
No contention is here made by appellant that she was liable for partial rent under some contingencies of the agreement. In the absence of such contention, we will address our observation to the issue that appellant was not liable for any subsequent rent because the building was entirely destroyed by fire.
The aforementioned provision nullifying the rental agreement in the event the building, the subject of the lease, is entirely destroyed by fire is comparable to the common-law rule that relieves the lessee of his obligation to pay rent on a commercial building totally destroyed by fire, so that nothing remains capable of being held or enjoyed. See Cook v. Anderson, 85 Ala. 99, 4 So. 713, from which we quote as follows:
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St. Clair Industries, Inc. v. Harmon's Pipe & Fitting Co.
...492. However, this presumption does not exist where the trial court erroneously applies the principles of law involved. Waters v. Merritt, 277 Ala. 346, 170 So.2d 492; Turner v. Turner, 251 Ala. 295, 37 So.2d 186; Murphree v. Hanson, 197 Ala. 246, 72 So. 437. Also, it is to be noted that ev......
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...favor of the lower court's ruling. See Alabama Farm Bureau Mut. Casualty Ins. Co. v. Cain, 387 So.2d 195 (Ala.1980); Waters v. Merritt, 277 Ala. 346, 170 So.2d 492 (1964). Farm Bureau argues that the ore tenus presumption of correctness does not apply to the trial court's ruling that Wayne'......
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...may never be liable to pay as the claim may never become due because of some contingency. The situation in the case of Waters v. Merritt, 277 Ala. 346, 170 So.2d 492, is an apt illustration of such a contingency. In that case, the building rented by the lessee was gutted by fire, and this c......
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