“A. The grоund floor of said store is to be lowered to or near a level with the sidewalk grade of the sidewalk on Fourth Street, in front of said building.
“B. A new front is to be put in said storeroom, which front shall be similar to that now in the store occupied by the Chain Grocery & Meat Company, at 408 Fourth Street, Sioux City, Iowa; the front on the Douglas Street side of said storeroom is to be rebuilt and an entryway to said store is to be put in, same to be as nearly like the entrance on Fourth Street as the construction of the building will permit. ’ ’
This contract further provided that, in consideration of the agreements and provisions thereof, as soon as the stipulated repairs and alterations were completed, the parties would enter into a new lease for a term of six years, commencing May 1, 1918, which should “be in substantially the same form as the lease of said premises heretofore existing between the parties hereto and above referred to.” By the terms of said contract, plaintiff agreed to pay an additional $100 per month rent for the premises under the new lease. In pursuance of said arrangement, Melvin J. Smith, president of the defendant company, at once made arrangements with F. X. Babue & Sons, building contractors in Sioux City, to make the contemplated alterations and improvements in said building, specifying that the work should be done under the supervision of Joseph Awe, an employee of defendant corporation. Babue, in accordance with his agreement, furnished the wоrkmen necessary for the job and purchased the material to be used in the building. Work was commenced about June 19, 1918, and continued until June 29th, when, shortly after the noon hour, the brick wall between the two storerooms gave way, and the building collapsed, and a fire ensued, totally destroying plaintiff’s stock of merchandise and fixtures. The building, as stated, was constructed of brick and mortar, and was erected in 1872. The bricks used in the structure were what are commonly known as sand bricks, and it ap
It is also claimed that the defendant was negligent in failing to cause the building to be properly inspected before the work was begun, and in failing to provide proper support and protection to the wall while it was in progress. But, as appellant does not claim that the question of defendant’s negligence should not have been submitted to the jury, we have no occasion to go into further details of the matters relied upon to constitute negligence.
The particular negligence charged in plaintiff’s petition and submitted to the jury, as stated in the court’s instruction, was:
“The act of negligence charged against the defendant, and which plaintiff claims was the direct and proximate cause of the collapse of the building and resulting damage, is that the defendant was negligеnt in attempting to lower the storeroom floor, and in lowering the same, in the manner in which said work was done and attempted to be done, in the old, worn, and ruinous condition in which the walls of said building were at the time said work was done, which condition was known, or should have been known, by the defendant at the time. And this is the only act*1039 of negligence on the part of defendant which you are to consider in your determination of this ease.”
In addition to a general denial and the admission of formal matters аlleged in plaintiff’s petition, the defendant, for answer, pleaded specially that the collapse of the building and the resulting fire occurred without negligence upon its part, and averred that the work of making alterations and repairs was done by competent workmen, in a skillful manner: The defendant also alleged that, by the terms and provisions of the written lease, entered into on December 1, 1915, the defendant was fully relieved and exempted from liability for the damages claimed; аnd that plaintiff, during the work of remodeling and repairing the building, and without knowledge of the defendant or of Babue & Sons, negligently caused large quantities of paint, oils, lead, and other goods and commodities to be removed from the basement and placed upon the upper floors of the building in such manner as to overload the same; and that same contributed to the collapse of the said building. The portions of the lease referred to above and set out in defendant’s answer аre as follows:
“And in no case whatever shall lessor (or those having estate in the premises) be liable to the lessee, or any other person, for any injury, loss or damage to any person or property on the premises, nor for the use or abuse of water, nor for leakage from the roof, nor for bursting or leakage of pipes in any part of the building nor for any damage whatever which may’ be caused by an overflow’ from sewers; nor for any nuisance made or suffered on thе premises;- * * * and all property of any kind that may be on the premises shall be at the sole risk of the lessee, or those claiming through or under it; and that the lessor, its successors or assigns or its agents, may during the said term, at reasonable times, enter to view the said premises or to show the property and buildings to persons wishing to lease or buy, and may remove placards and signs not approved and affixed as herein provided, and may make repairs and alterations, if it should elect so tо do, and may show the said premises and building to others, and at any time within three months next before the expiration of the said term may affix to any suitable part of the said premises a notice for letting or selling the said*1040 premises or building, and keep tbe same so affixed without hindrance or molestation; * * * ”
Aside from errors which appellant claims occurred during the trial, and which will be noted later, the principal contentions of defendant upon this appeal are:
1. That plaintiff’s ocсupancy of the building, both at the time when the alterations were contracted for and when made, was subject to the express agreement quoted above, that in no event whatever should the defendant be liable to plaintiff for injury, loss, or damage to its property on the premises, and that same, while kept thereon, was at the sole risk of plaintiff.
2. That plaintiff assumed the risk of damage to its property, and failed to exercise the care required of it under the provisions of its lease and the circumstances shown.
The familiar general rules governing the relation and liability of a landlord to his tenant for damages growing out of defects in the leased premises, or out of the negligence of the landlord in making repairs, such as that the occupancy of the tenant is at his own risk as to unconcealed defects, and that it is the duty of the landlord, in attempting to make repairs or alterations upon leased premises, to do so in a reasonably prudent and сareful manner, and that he is liable for damages proximately resulting from his failure to do so, are not controverted. While counsel for appellee do not concede that plaintiff’s occupancy of the building at the time of the collapse was under the lease that expired April 30th, the argument upon both sides proceeds largely upon this assumption. When, however, it comes to the question of the interpretation to be placed upon, and the legal effеct to be accorded to, the so-called exemption clause of the lease quoted above, the views of counsel are widely divergent.
, It is the contention of appellant that this clause is all inclusive, and that, unless an exception as to negligence is to be implied, it is conclusive against the defendant; whereas it is the claim of counsel for appellee that this clause waives the right to claim damages only for those things which might naturally and which would ordinarily follow from the occupation of a building, and for which the landlord would not be liable, under the ordinary rules pertaining to the relationship of landlord and tenant, and to such as might have been reasonably anticipated to
It should be noted, at the very outset, whether given particular significance in argument by counsel or not, that the repairs were being made in pursuance of the separate agreement of June 1st, which specifically recognized that the former lease had expired, and provided that, when the repairs were completed, a new lease- — the terms of which were no more definitely stated than that they would be substantially the same as the terms of the former lease — would be entered into for a term of six years, commencing May 1, 1918, and that said agreement further designated the exact rеpairs to be made, and recited that it was to be done in consideration of the parties’ entering into a new lease for the term stated, at an increased rental of $100 per month. It is true that provisions in leases exempting the landlord from liability for damages to the property of the tenant caused by the negligence of the former have been upheld, to some extent, by this court and the courts of other jurisdictions. Griswold v. Illinois Cent. R. Co.,
A careful analysis of the court’s decision in each of the сited cases reveals that the clause construed either, specifically or definitely exempted the landlord from liability for damages resulting from certain designated causes, or else the lease involved was a lease of a certain portion of the right of way of a railroad for a nominal consideration, for the erection of an elevator or other building of similar character and use. In the latter cases, the exemption provided was from liability for damages resulting from fires caused by the negligence of the company’s servants. In none of these cases was the question of the liability of the landlord for damages caused by its negligence in making
Exemption clauses in various leases somewhat less sweeping and comprehensive in their general terms have been held by the courts of other jurisdictions, particularly by the New York courts, not to operate as a waiver of the right of the tenant to recover from a landlord damages resulting from the making of repairs in a negligent manner. Lewis Co. v. Metropolitan Realty Co.,
In Mortrude v. Martin,
It will be remembered that the repairs in question were being made by workmen furnished by a local contractor engaged by defendant, under the direct supervision and contract of a foreman also in defendant’s employ. No one connected with the plaintiff company had anything whatever to do therewith, or a right to exercise control over the workmen or to direct the manner in which the work should be performed.
It is contended by counsel for appellant that the сharge of negligence, submitted to the jury, was so inseparably connected with the ruinous and unsafe condition of the building that, aside from the exemption clause in the lease, plaintiff cannot recover, for the reason that he was bound to make such examination of the premises as was necessary to determine whether they were safe for occupancy; and that defendant is not liable for injuries resulting from such defects as were known to plaintiff, or would have been discоvered by such inspection as it was his duty to make; also, that, if the issue of negligence submitted to the jury was not so inseparably based upon the unsafe condition of the building as to preclude recovery, the evidence conclusively shows that plaintiff assumed the risk, and failed to exercise due care, under the circumstances. The contention of counsel fails to distinguish between injuries resulting from unconcealed defects in the building and injuries resulting from the omission of the landlord to perform some duty owed to the tenant, or from affirmative acts of negligence committed by him in making repairs upon the leased premises. The evidence does not disclose that the collapse of the building was due to its inherent weakness or to defects reasonably discoverable upon proper inspection thereof, but sufficient evidence was introduced that such collapse was due to the negligent manner in which the work of lowering the floor in the storeroom occupiеd by plaintiff was done, to require submission of the question to the jury. Plaintiff, by remaining with his stock of goods in the building, assumed no risk for injuries caused by the negligence of defend
The case does not, in our opinion, come within the rule announced in Dresser v. Bates,
The court, in Paragraph 11, instructed the jury that it was the duty of plaintiff to use reasonable and ordinary care not to permit anything to be done which would overload the premises, in view of the condition of the building and the alterations and remodeling contemplated, so far as the same were known to the plaintiff. Counsel for appellant contends that the instruction was erroneous, for the reason that it should have stated that plaintiff was absolutely bound not to overload the premises, and that it was its duty tо determine, at its peril, whether this was being done. Whether the instruction was correct as stated, or whether it should have been framed upon the theory of counsel, we think no prejudice could have resulted to defendant on account of the form in which it was given. The evidence wholly fails to show that the collapse of the building was due to overloading. As stated, the weight of merchandise on the fourth floor was, according to record, appreciably less than it customarily was. .
Some other minor questions are dismissed by counsel for appellant; but it is impossiblе, in an opinion of permissible
To give the effect urged by appellant to the provisions of the lease quoted above would, under the circumstances shown, it seems to us, be to place an unwarrantable interpretation thereon, and by implication or construction to add something thereto which manifestly was not within the contemplation of the parties at the time the instrument was executed. Since we fail to discover grounds for reversal in the record, the judgment of the court below is — Affirmed.