Sweezy v. Collins Northern Ice Co.

Brooke, J. (after stating the facts). We will first discuss that part of the charge which deals with the duty of the defendant to repair, “reasonable use and damages by the elements excepted.” This exception was under consideration by this court in the case of Van Wormer v. Crane, 51 Mich. 363 (16 N. W. 686, 47 Am. Rep. 582). Justice Cooley there said: “ ‘Damages by the elements’ must be conceded to be a somewhat uncertain expression. * * * “ Anciently it was supposed there were four elements of material things — earth, air, fire, and water; and, when it came to be known that this classification had no scientific basis, the term had found a place in common speech which it still retains. Injuries to buildings by wind, rain,' frosts, and heat are spoken of as injuries by the elements, [79] and all the ordinary decay from natural causes is classed in the same category. Probably no one would make any question respecting this. * * * “If a flood had destroyed this building the defendants would not be held responsible, because it would have been said the damage is of a sort that must be referred to the elements within the understanding of the parties in entering into this covenant. If a tornado had destroyed it, the same would have been said. Wé cannot suppose the parties intended to accept natural and ordinary decay from wind and rain, and not the more sudden and grievous calamities proceeding from the same sources. * * * In the popular acceptation of the phrase, injuries by the elements are such injuries as result from the operation of the most common destructive forces of nature against which buildings need to be protected.” In a concurring opinion written by Justice Sherwood it is said: “It is claimed by the plaintiff’s counsel that it (the word ‘elements’) does not include accidental fire or a burning by fire connected with any human agency, but burning caused by lightning or arising from some action of the elements alone; that the legal signification of the word as used in this lease is synonymous with the phrase ‘ act of God’; that the word ‘elements,’ as here used, means earth, air, fire, and water; but to enable the defendants to claim the benefit of the exception contained in the covenant to repair, such injury must result from the action of the elements entirely; that the lightning must kindle the fire; the earth must be convulsed; the air must blow in a tempest or tornado; the water must come in water-spouts, or from sudden irruption of the sea breaking by its own force over the barriers. “We are not able to agree with the learned counsel in this construction.” This case has been lately cited with approval and followed in the case of Hanchett v. O'Reilly, 76 N. J. Law, 212 (68 Atl. 1066). The subject will be found fully discussed and digested in 53 L. R. A. 673, note. 1 Wood’s Landlord and Tenant (2d Ed.), p. 806. We are convinced that the rule in Michigan is that “ damage by the elements ” includes all injury by wind, rain, snow, frost, and [80] heat as well as all ordinary decay from natural causes. A different rule seems to obtain in some other jurisdictions. See Harris v. Corlies, 40 Minn. 106 (41 N. W. 940, 2 L. R. A. 349), from which case the learned circuit judge seems to have taken the definition of the term given to the jury. See, also, Polack v. Pioche, 35 Cal. 416 (95 Am. Dec. 115). This case was discussed and disapproved by Mr. Justice Sherwood in Van Wormer v. Crane, supra. We conclude that, though in other portions of the charge the learned circuit judge gave instructions to the jury inconsistent with his definition, the giving of the erroneous definition cannot be said to be error without prejudice. One portion of the charge is as follows: “Defendant was not to be responsible for any decay arising from the reasonable use of the buildings for such purposes. If the buildings were damaged from this cause, defendant would not have to make them good (although against such it would be required to maintain in a usable condition and safe during it tenancy).” This instruction would seem to import a contradiction in terms. Defendant’s covenant to repair distinctly excepts damages arising from “reasonable use” as well as those caused by “ the elements.” Defendant urges that the measure of damages laid down by the court was erroneous. We think this claim correct. At the time this lease was entered into the buildings in question were 10 years old. Defendant introduced testimony tending to show that the life of such structures is about 14 years. This was disputed on behalf of plaintiff, but whether true or false it is entirely obvious that buildings of this character would, through natural decay, deteriorate from year to year, and that they would have been much less valuable when 10 years old than when new. Yet no testimony was introduced on behalf of plaintiff as to the value of the buildings at the time the contract was entered into. The jury were permitted to [81] consider the cost of new construction in 1910, and their verdict indicates that they allowed practically the full value thereof. Upon what theory the learned circuit judge reduced the judgment one-half the record does not disclose. Assuming that the icehouses fell by reason of defendant’s failure to repair in accordance with the terms of his covenant, and not because of the action of the elements upon structures of their age and character, the true measure of damages would be such a sum as would put the premises in the condition in which the tenant was bound by its covenant to leave them. 24 Cyc. p. 1099, and cases cited. 1 Taylor’s Landlord and Tenant (9th Ed.), § 368. The plaintiff is not entitled to a new structure in place of an old one. The character, condition, age, and value of the buildings at the time of the making of the lease must be taken into consideration. The tenant was bound to leave, not new buildings, but buildings which at the termination of its lease would have been 16 years old. The value of such buildings less the value of the wreckage would, we think, represent the proper measure of this element of plaintiff’s damage if the jury should determine, under proper instructions, that the loss occurred by reason of defendant’s default. Yates v. Dunster, 11 Exchq. 16. Other errors are assigned, but they do not require discussion. The judgment is reversed, and a new trial ordered. Moore, O. J., and Steers, MoAlvay, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.