Winkler v. Appalachian Amusement Co.
| Decision Date | 25 November 1953 |
| Docket Number | No. 310,310 |
| Court | North Carolina Supreme Court |
| Parties | WINKLER, v. APPALACHIAN AMUSEMENT CO. |
Deal, Hutchins & Minor, Winston Salem, and Wade E. Brown, for plaintiff, appellant.
Scott, Collier & Nash, Statesville, and Trivette, Holshouser & Mitchell, North Wilkesboro, for defendant, appellee.
The defendant contends that the court was correct in nonsuiting the plaintiff on these grounds: (1) There was not sufficient evidence of actionable negligence to carry the case to the jury; (2) that the language of paragraphs 3 and 9 of the lease relieved the defendant from liability for damages by fire, no matter if caused by its own negligence; and (3) that the language of paragraph 6 of the lease required the plaintiff to keep the building fully insured in order to protect the defendant, even against its own negligence
In every lease there is, unless excluded by the operation of some express covenant or agreement, an implied obligation on the part of the lessee to use reasonable diligence to treat the premises demised in such manner that no injury be done to the property, but that the estate may revert to the lessor undeteriorated by the wilful or negligent act of the lessee. The lessee's obligation is based upon the maxim sic utere tuo ut alienum non laedas. The lessee is not liable for accidental damage by fire; but he is liable if the buildings are damaged by his negligence. Moore v. Parker, 91 N.C. 275; Hollar v. Southern Bell Telephone & Telegraph Co., 155 N.C. 229, 71 S.E. 316; U. S. v. Bostwick, 94 U.S. 53, 24 L.Ed. 65; 32 Am.Jur., Landlord and Tenant, 669; 51 C.J.S., Landlord and Tenant, § 261, page 904.
Considering the instructions of the manufacturer of the popcorn machine to 'never leave machine unattended while in operation'; that the popcorn machine was about two or two and one-half feet high and the wood table on which it was placed was about two feet high and the ceiling of the room in which it was in operation was about seven feet gigh; that this machine had an open gas flame from holes in a circular burner about two inches below a pan which contained oil and corn; that this machine was hot from popping fifty boxes of corn; that the manager of the theater instructed the 16 year old boy in charge to bring 25 boxes of corn to the front of the theater; that this boy left the machine in operation with the flame burning; that there had been a hole in the ceiling for several months which exposed the composition material of the air duct; that when this boy returned from the front of the theater where he had carried the 25 boxes of corn, the machine was on fire and flames were down next to the hopper and up to the table; that 'as a result of the fire coming through the air duct then coming out, breaking through the drapes the fire just rode up the side of the wall of the dressing room * * * and the fire seemed to jump up the side of the wall and on to the balcony,' we are of the opinion, interpreting this evidence in the light most favorable to the plaintiff, and giving to him the benefit of every inference which the testimony fairly supports, as we are required to do on a motion for nonsuit, there was sufficient evidence of actionable negligence for the jury to consider.
The defendant contends that the language of paragraphs 3 and 9 of the lease relieved the defendant from liability for damages by fire, no matter if caused by its own negligence, and in support of its contention makes these points. That paragraph 9 of the lease of September 14, 1938 stipulates that except in case of fire and other casualty and ordinary wear and tear the building shall be delivered up at the expiration of the lease in as good order as at present; and paragraph 3 of this lease says that the lessee shall make necessary repairs to the inside of the building but excludes damages caused by fire, as set forth in paragraph 6. That these provisions of the lease clearly show that the lessors should restore the building destroyed by fire regardless of the cause of the fire. That the plaintiff in March 1950 agreed to replace the building suitable for occupation as a first-class theater, and received from the defendant the sum of $17,250, and is now estopped to deny that the original lease did not contemplate restoration by the plaintiff in the event of defendant's negligence and is barred from maintaining this action by reason of settlement, accord and satisfaction. That the provision of paragraph 6 that the plaintiff should carry insurance to the full insurable value of said building shows the intention of the parties that the lessors should restore the building damaged by fire, regardless of its cause.
These contentions require us to determine whether the language in the instant lease is clear and explicit that the parties intended that the lessee should be relieved of liability for damage by fire caused by its actionable negligence, if the jury should find the defendant guilty of actionable negligence.
Contracts for exemption from liability for negligence are not favored by the law, and are strictly construed against the party asserting it. The contract will never be so interpreted in the absence of clear and explicit words that such was the intent of the parties. Hill v. Carolina Freight Carriers Corp., 235 N.C. 705, 71 S.E.2d 133, where the authorities are cited.
The first question involved is: Whether the words in the lease in paragraph 9, 'the lessees agree that they will, at the expiration of this lease, deliver up and return possession of the premises to the lessors in as good order, repair and condition as at present, ordinary wear and tear excepted, and damage by fire * * * excepted ' and the words in paragraph 3 'the lessees * * * shall, at their own cost and expense, make any and all repairs that may be necessary inside the portion of the building hereby demised, excepting in case of destruction or damage by fire', exempt the defendant from liability for damage by fire caused by its actionable negligence, if there was such actionable negligence on its part. Similar words have been used in leases for many years to relieve the lessee from any liability caused by accidental fires, or fires caused by the wrongful act of another. Did these words mean that the lessee was to be exculpated from a fire which was the result of its own negligence? Such a concession would scarcely be looked for in a contract between business men. If the parties intended such a contract, we would expect them to so state in exact terms. It would be natural for the lessee who had contracted to keep up repairs, to desire to escape liability for purely accidental fires and for the lessor to be willing to grant that relief, but it would not be natural that the lessor would be willing to release the lessee from damage caused by its own active negligence. In our opinion, the words in paragraphs 9 and 3 of the lease do not exempt the defendant from liability for fire damage, if caused by its actionable negligence.
There seems to be sound authority to support our position. In 32 Am.Jur.,...
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