Dimotsis v. Waco Mill & Elevator Co. , 9 S.W.2d 1047 ( 1928 )

SMITH, J.

On November 9,1926, tbe Waco Mill & Elevator Company purchased from a bankrupt estate a bakery plant, wbicb was located and bad formerly been operated in a building situated in Corpus Cbristi, and owned by George Dimotsis. Upon purchasing the plant, tbe mill and elevator company rented said premises from Dimotsis for tbe balance of tbe month of November, 1926. In renting tbe premises to tbe mill and elevator company, Dimotsis reserved tbe right to make improvements and remodel tbe building during the 21 days’ tenancy of tbe mill and elevator company. Dimotsis availed himself of this privilege and did make some changes in tbe building, but in a “different manner than be had represented to tbe tenant that be would do,” thus rendering tbe premises “unfit” for tbe tenant’s purposes. Tbe jury found that the landlord’s workmen did not use ordinary care in protecting tbe tenant’s bakery plant while remodeling tbe building. The mill and elevator company vacated tbe premises at tbe end of tbe rent period, and subsequently brought this suit against Dimotsis for damages, all elements of wbicb were eliminated upon tbe trial, except the expenses incurred by tbe tenant in moving its plant from the Dimotsis premises to another location. Tbe jury found that these expenses aggregated the sum of $500, for wbicb judgment was rendered in favor of tbe mill and elevator company against Dimotsis, who has appealed.

We have concluded that tbe judgment cannot stand. Appellee based its suit upon tbe existence of a lease beyond tbe month of November, and a consequent wrongful eviction based upon the claim that appellant so remodeled the building as to render it untenable for further occupancy as a bakery. But tbe jury’s finding that tbe rent period expired with November, and that appellant bad tbe right to remodel tbe building during that period, destroys appellee’s contention. Appel-lee purchased tbe bakery plant while it was idle, and did not undertake or expect to operate it in that location, but sought only to sell it to others before its removal.

In this situation tbe landlord owed tbe tenant the duty only to so conduct himself as not to injure tbe latter’s property while it was on tbe rented premises. Tbe jury found that tbe landlord’s workmen did not use ordinary care to so protect appellee’s property, but did not find that appellee was injured, or tbe amount of any damage, occasioned by that negligence, thus eliminating the issue from tbe case.

Tbe only damage found by tbe jury was tbe sum of $500, ascertained in response to this special issue:

“What do you find to be the amount of expenses the Waco Mill & Elevator Company was put to in moving its property out of defendant’s premises and placing and relocating same in the Kaffie building in Corpus Christi?

“In this connection you are instructed that such expenses as above inquired into include all expenses sustained in taking property apart to move the same out of the premises, if such was done, and the cost of moving the same, and the cost of setting up and reconnecting the same in as good a condition as the same was in at the time the defendant, George Dimotsis, entered the rented premises to make the said improvements, together with all other necessary and similar expenses which plaintiff was put to and sustained, if any, by virtue of having to move the said property. Answer in dollars and cents.”

Clearly, damages found under this submitted issue cannot be sustained. In tbe first place, this element of damages is found upon the assumption of a wrongful eviction, which is not in the case. Nor was the ordinary expense of moving properly chargeable against appellant, for in every event under the case made such expense should have been borne by appellee.

Appellant contends that judgment should be rendered by this court in bis favor, but we conclude this cannot properly be done. The' pleadings and evidence raise an issue as to whether or not the carelessness of appellant’s workmen in remodeling the building resulted in unnecessary injury to appellee’s plant, and tbe cause should be remanded for determination of that question.

Accordingly, tbe judgment must be reversed and the cause remanded for another trial.