Opinion
34380.
DECIDED JANUARY 27, 1953.
Damages; from Richmond Superior Court — Judge Anderson. September 25, 1952.
Congdon, Harper Leonard, for plaintiff in error.
Hull, Willingham, Towill Norman, contra.
A provision in a lease agreement that "The lessee releases the lessor from any and all damages to person and property suffered upon the premises herein leased, and will hold the lessor harmless from all damages sustained during the term of this lease," will preclude such lessee from holding the lessor liable in damages for injury to property resulting from a leaky roof, regardless of whether or not the duty to repair the roof was an obligation of the landlord generally.
DECIDED JANUARY 27, 1953.
Fine Products Corporation filed a suit in the Superior Court of Richmond County against Plaza Hotel Company, a corporation, for damages resulting from water damage to the plaintiff's stock of paper goods and advertising materials located in a ground floor warehouse leased for storage purposes, at a point immediately under the roof of a well extending down an interior part of the building to admit light and air to upper-story rooms facing thereon. The roof was thus but one story high over that part of the plaintiff's leased premises in which the damage occurred, and was almost flat, with flashing around its sides and a slight drain to a drainpipe which was stopped up with debris and rubbish. The upper floors were rented to one Waddell Pate for use as a hotel.
The lease contained the following provision: "The lessee releases the lessor from any and all damage to person and property suffered upon the premises herein leased, and will hold the lessor harmless from all damages sustained during the term of this lease. He further agrees to surrender said premises at the expiration of this lease in as good order and repair as the same are on the first day of the term of said lease, natural wear and tear excepted."
The trial court directed a verdict for the plaintiff which was apparently the result of the statements of M. B. Buford, president of the defendant corporation, who had signed the lease for Plaza Hotel Company. Buford had left the estimate of the damage to officers of the plaintiff company, and had stated to them in the course of negotiations that "he saw the damage there and would see that we were paid for it," and that "he would see that we got our money and that he would take care of it." On the trial Buford, the only witness for the defendant, testified in part as follows: "I tell you the truth, I never did think I was liable for it and I still don't think so, and Mr. Fiske and I knew that I was renting the property and, naturally, I would have to pay Mr. Fiske, regardless, so I even left the count to him. . . Mr. Congdon over there has a copy of the lease between me and Pate. I have a lease with Pate and, under that lease, he is obligated to make such repairs." Question: "The truth about this whole thing — didn't you say on direct examination that you felt you were liable to Mr. Fiske and Mr. Pate liable to you?" Answer: "That is the way I feel about it, yes, sir."
The defendant filed a motion for new trial, which was later amended, and the overruling of this motion is assigned as error.
A lessee may, by express lease provision, release a lessor from liability as the result of damage to person or property which is due to the negligence of the landlord or which he would otherwise have a duty, imposed by statute, to prevent. Conceding that, in the absence of a contrary stipulation, the duty would rest upon the landlord here to repair the roof immediately over a portion of the premises rented to the plaintiff, and that he would be liable for damages resulting from his failure to do so, the lease here contains an explicit provision holding the lessor harmless "from any and all damage to person and property" on the leased premises sustained during the term of the lease. This provision is substantially identical with a lease provision in Capital Wall Paper Co. v. Callan Court Co., 38 Ga. App. 428 ( 144 S.E. 135) as follows: "the lessor will not be responsible to the tenant or any other person for any loss of or damage to property, however occurring." It was there held that where the damage to the lessee's stock of goods resulted directly from the breach of a covenant by the landlord to furnish heat, the landlord would nevertheless not be liable in damages where by lease provision he was specifically exempted therefrom.
The construction of contracts is for the court, parol evidence being inadmissible except as to explanation of ambiguities and the surrounding circumstances of the transaction. Code, §§ 20-701, 20-704(1). The lease provision with which we are dealing was held, in Capital Wall Paper Co. v. Callan Court Co., supra, to be unambiguous in the intention thereby expressed to release the lessor from all damage to property occurring on the leased premises. Accordingly, the statement of the witness Buford, president of the defendant corporation, to the effect that he considered the defendant liable to the plaintiff, and the co-tenant Pate liable over to it, was not proper evidence for the court to consider in construing the lease contract, but was, rather, the statement of an erroneous conclusion of law on the part of the witness. If considered as a promise to pay for the damage to the lessee's goods, it was without consideration and in consequence not binding upon the defendant. Code, § 20-301; Massell v. Fourth National Bank of Macon, 38 Ga. App. 601 (4) ( 144 S.E. 806).
Regardless of whether or not a duty rested upon the landlord to repair the roof so as to prevent it from leaking, the defendant, by express stipulation in the lease agreement, is here relieved from liability for the damage resulting therefrom to the plaintiff's goods. It was, accordingly, error to direct a verdict for the plaintiff.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.