Appeal from the Circuit Court of Cook County; the Hon. BEN
SCHWARTZ, Judge, presiding. Judgment reversed and cause remanded
with directions to deny defendant's motion to dismiss, that
defendant answer and for other proceedings not inconsistent with
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment of the Circuit Court of Cook County granting defendant's motions for summary judgment, and to dismiss. This action arose out of a fire in a building which is owned by the plaintiffs and is leased to the defendant. On January 23, 1964, defendant's employee was operating an oxyacetylene torch in defendant's automobile repair shop. A fire resulted which plaintiffs alleged in their amended complaint was the result of the negligence of defendant's employee and of the defendant, Yarnall-Todd Chevrolet, Inc.
Plaintiffs' theory is that the damage to the premises was the result of the defendant-lessee's negligence and that the lease under which defendant occupied the premises did not exculpate defendant from liability for loss caused by, or through its negligence. The basic issue facing this court is whether the trial court was correct in construing the lease to exonerate the defendant.
The relevant provisions of the lease involved here are as follows:
"5. . . . At the termination of this lease by lapse of time or otherwise, lessee shall return the premises and all leasehold improvements and fixtures therein in as good condition as when lessee took possession, ordinary wear and tear or damage by fire or other casualty beyond lessee's control excepted, . . . .
"7. . . . In addition to all other liabilities for breach of any provision of this Section 7, lessee shall pay to lessors an amount equal to the increased cost of any insurance coverage resulting from lessee's act or neglect and all damages sustained by lessors as a consequence thereof. . . .
"Notwithstanding the provisions of this paragraph 8, lessors shall, upon receipt of written request from lessee, at their own expense, make all repairs to the foundations, exterior walls, roof and supporting members of the present brick building located on the demised premises when such repairs are made necessary by ordinary wear and tear, it being expressly understood, however, that there shall be no obligation of the lessors to make repairs to the foundations, exterior walls, roof or supporting members of the present brick building when the damage requiring such repairs is caused by lessee or its customers or other persons in connection with lessee's business.
"9. . . . If it (the building) shall be partially damaged by fire or other casualty without the fault or neglect of lessee it shall be repaired, restored or rehabilitated by and at the expense of lessors, and rent, until the untenantable portion is ready for occupancy by lessee, shall be apportioned according to the part which is usable by lessee, . . . ."
Defendant Yarnall-Todd Chevrolet, Inc. cites Cerny-Pickas & Co. v. C.R. Jahn Co., 7 Ill.2d 393, 131 N.E.2d 100, as controlling authority for the proposition that the lease involved here exonerated defendant from liability for occurrences such as the one which caused the damage to the building owned by plaintiffs and occupied by the defendant. In that case the Illinois Supreme Court was faced with the question whether the provisions of a lease exculpated the lessee from liability of loss caused by the negligence of the lessee. The relevant sections of that lease are as follows, Cerny-Pickas & Co. v. C.R. Jahn Co., supra, at p 395:
"2. . . . Lessee will keep said premises, including all appurtenances, in good repair, . . .; and upon the termination of this lease, in any way, will yield up said premises to Lessor in good condition and repair (loss by fire and ordinary wear excepted). . . . (Emphasis added.)
"8. Lessor shall not be obliged to incur any expense for repairing any improvements upon said demised premises or connected therewith save as in this clause provided, and the Lessee at his own expense will keep all improvements otherwise in good repair (injury by fire, or other causes beyond Lessee's control excepted). . . . (Emphasis added.)
"14. Lessor shall pay for fire insurance on the building and equipment and machinery hereby leased, and Lessee agrees to pay for any increase in fire insurance premium on such insurance policies, due to any increase in the insurance rate due to the nature of Lessee's business, or the manner of its conduct of the business."
In holding that the lease should be construed to exonerate the lessee from liability, the court paid particular attention to Section 2 of the lease where it was provided that the lessee was to "yield up said premises to lessor in good condition and repair (loss by fire and ordinary ...