Weirick v. Hamm Realty Co.
| Decision Date | 13 December 1929 |
| Docket Number | No. 27586.,27586. |
| Citation | 179 Minn. 25,228 N.W. 175 |
| Parties | WEIRICK v. HAMM REALTY CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Carlton F. McNally, Judge.
Action by James E. Weirick against the Hamm Realty Company. Judgment for plaintiff and defendant appeals. Reversed and rendered.
Denegre, McDermott, Stearns, Stone & Mackey, of St. Paul, for appellant.
Barrows & Stewart, of St. Paul, for respondent.
Plaintiff, a dentist, rented six rooms from defendant in an office building for use as an office, one of which was occupied by his assistant. Plaintiff requested defendant to redecorate the rooms, and defendant sent a painter in its employ to do the work. The painter painted the walls of some of the rooms, and, on a day when plaintiff's assistant was absent, painted the floor of his room. The paint used made the floor as slippery as a coating of grease. The painter left the room to get more paint. While he was absent, plaintiff, who did not know that the floor had been painted, stepped into the room and slipped and fell sustaining injuries for which the jury gave him a verdict. Defendant made a motion for judgment notwithstanding the verdict. The motion was denied and judgment entered. Defendant appealed therefrom.
The lease contains this provision: "The Lessor shall not be liable for any loss of property by theft or burglary from said premises or building; nor for any accidental damage to person or property in or about said premises or building resulting from operating the elevators, or electric lighting, or water, rain or snow, which may come into or issue or flow from any part of said premises or building, or from the pipes, plumbing, wiring gas or sprinklers thereof, or that may be caused by the Lessor's employees or any other cause whatever and the Lessee hereby covenants and agrees to make no claim for any such loss or damage at any time."
The question presented is whether this stipulation in the lease relieves defendant from liability for the negligence of its employee in covering the floor with that kind of paint without notice to plaintiff, who was at work in an adjoining room, and without posting any warning signs.
Plaintiff claims that defendant, in doing the redecorating, was not within the protection of the provision above quoted for the reason that the contract did not require defendant to do such work. The contract did not require defendant to redecorate, but gave it the right to do so; and it did the work, not of its own volition, but because requested by plaintiff. The fact that the doing of the work was not obligatory furnishes no sufficient reason for placing defendant outside the protection of the exempting provision while doing it.
Plaintiff insists that the exempting clause does not relieve from liability for negligence of the character alleged; that under the doctrine of ejusdem generis the clause exempting defendant from liability for the negligence of its employees applies only where the damage results from causes similar to those previously enumerated. We cannot sustain this contention. Under the common law, defendant would not be liable for damage resulting from the causes enumerated unless such damage resulted in consequence of defendant's negligence; and the sole purpose of this provision was to relieve defendant from liability for negligence. It provides that, "the lessor shall not be liable * * * for any accidental damage to person or property," resulting from the several causes enumerated, "or that may be caused by the lessor's employees." It expressly exempts defendant from liability for accidental damage caused by defendant's employees — in other words, from liability for the negligence of such employees. We cannot hold that this provision applies only in those cases in which the damage results from operating the elevators, or from the electric wiring, or from water, rain or snow, or from the plumbing or similar things, without doing violence to the language used by the parties to express their meaning. This clause is not used as a catchall to cover matters that may have been omitted, which is deemed to be the purpose of those general terms to which the rule invoked is applied, but is used to specify a particular class of accidents for which the lessor is not to be liable.
Plaintiff relies mainly on the contention that the provision exempting defendant from liability for its own negligence is contrary to public policy and therefore void.
Public policy "requires that freedom of contract shall remain inviolate, except only in cases which contravene public right or the public welfare." Buck v. Walker, 115 Minn....
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