141 Cal. App. 2d 733 | Cal. Ct. App. | 1956
Defendants leased from plaintiff the arena of its municipal auditorium building in which to hold the “Annual Spring Music Festival.” One Mrs. Genevieve Herd sued plaintiff for damages for injuries which she claimed to have sustained while attending said festival. She alleged that her injuries were due to a fall caused by a defect in the walkway providing access to the easterly entrance of said municipal auditorium. Claiming that under the lease above mentioned defendants had agreed to indemnify plaintiff against all loss, expense or claim for damages arising out of the use of the property described in the lease, plaintiff demanded that defendants defend plaintiff in the Herd action. Defendants refused so to do. Plaintiff brought this action to declare its rights under said lease and particularly to have it declared that defendants hold plaintiff harmless from any claims of said Genevieve Herd in said action brought by her against plaintiff. Defendants appeal from a judgment in favor of plaintiff.
The trial court found that the place where Mrs. Herd claimed to have been injured was a “path . . . providing access” to the easterly entrance of said municipal auditorium owned by plaintiff,
Question Presented
Does the indemnity clause of the lease apply to the place of injury?
Premises Indemnified
What were “the premises” as to which the indemnity applies? The lease, prepared by plaintiff, provides: “1. That the lessor hereby leases to the lessee, and the lessee hereby hires from the lessor, the Arena of the Oakland Municipal Auditorium Building, hereinafter referred to as the ‘prem
At the trial Mrs. Herd testified that as she left the Music Festival, she walked out of the auditorium, descended steps to a walkway in front of and adjoining the building. After walking 22 to 25 feet on the walkway she stepped into a hole, whereby she was injured. This hole was in the center of the pathway. It customarily held a post, but the post had been removed. There is no evidence to show who had removed it. A photograph of the pathway was introduced in evidence. It shows a cement walk running parallel to the easterly end of the auditorium building. At the near end of the picture the walk inclines upward and then levels off. The steps to the doorways of the building lead off this walk at right angles. On the outer side of the walk is an iron railing. There was no evidence that the walk was used for purposes other than ingress and egress to or from the building.
Forrest Mitchell, who executed the lease on behalf of defendants, testified that at the time of executing it he understood that people attending the festival would be entitled to use the walkway and exits of the auditorium to get in and out.
The question here is not alone what could be used by defendants as appurtenant to the leased portion of the building but particularly as to what places the indemnity provision would apply. In determining this question and in interpreting the lease, it must be borne in mind that the terms of the lease must be construed strictly against plaintiff, first because the lease was prepared by plaintiff (see Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal.App.2d 578 [271 P.2d 112] Pacific Lbr. Co. v. Industrial Acc. Com., 22 Cal.2d 410,
In Hollander v. Wilson Estate Co., 214 Cal. 582 [7 P.2d 177], the tenant leased the fourth floor of a seven-story building. The lease contained a provision indemnifying the landlord against all claims for damages to persons or property “in or about or connected with this tenancy or the occupancy of said demised premises.” (P. 584.) The court held that while no mention was made in the lease of the tenant’s right to use the elevator, such right was an appurtenance of the lease. However, as to the indemnity clause, although the elevator was in a sense “connected with” the tenancy, “It is contrary to sound construction to say that said instrument had in contemplation the release from liability for damages for personal injuries arising from the negligent operation or maintenance of this public elevator.” (P. 585.)
In Pacific Indem. Co. v. California Elec. Works, Ltd., 29 Cal.App.2d 260 [84 P.2d 313], the court was construing the indemnity provision of a building contract. It held that to construe the provision as applying to the indemnity of one of the parties against its own wrong, “. . . the language of the contract must be of such a nature as to compel that interpretation, and to accomplish such a result the language used must be clear and explicit.” (P. 274.) It then quoted from Murray v. Texas Co., 172 S.C. 399 [174 S.E. 231], to the effect that “broad and comprehensive” language alone is not enough. The language indemnifying against the parties’ own wrong must nevertheless be clear and explicit and
Applying such rules to the lease here, it would appear that while as appurtenant to the portion of the building leased there necessarily followed the right to use all portions of the building and even the walkway necessary for ingress to and egress from the arena,
Plaintiff has cited cases like Werner v. Knoll, 89 Cal.App.2d 474 [201 P.2d 45], and Barkett v. Brucato, 122 Cal.App.2d 264 [264 P.2d 978], as upholding clauses similar to paragraph 12. There is no question but that the indemnity provision is a valid one. The only question is as to what part of plaintiff’s property it applied to. This question was not involved in the cited cases. The language of the lease is clear and unambiguous. It defines “premises” and limits the indemnity to the premises defined. The fact that the parties “understood,” if they did so, that defendants were to use more than the defined premises, did not extend the indemnity to more than the expressly defined limits.
The judgment is reversed.
Peters, P. J., and Wood (Fred B.), J., concurred.
A petition for a rehearing was denied June 22, 1956, and respondent’s petition for a hearing by the Supreme Court was denied July 18, 1956.
The court also referred to it as a “walkway providing access . .
While there was no evidence of who removed the post, leaving the hole into which Mrs. Herd fell, her complaint against plaintiff alleged that the ‘1 dangerous, hazardous, and defective condition” was due to a “hole . . . which . . . had been duly created” by plaintiff.
See Owsley v. Whelan Drug Co., 83 Cal.App.2d 454, 457 [189 P.2d 50] ; Mayer v. Hazzard, 10 Cal.App.2d 1, 3 [51 P.2d 189].