that, '* * * Accident, and its synonyms casualty and misfortune, may proceed or result from negligence, or other cause known, or unknown.' McCarty v. New York & Erie Railroad Co., 1858, 30 Pa. 247, 251.
In a lease where the phrase was that the premises would be surrendered, '* * * in as good order and condition as they were at any time during the term, ordinary decay and inevitable casualty only excepted,' the words were construed to hold the tenant liable if the fire were caused by his negligence but not if he was not negligent. Kelly v. Duffy, 1887, 8 Sadler, Pa., 214, 11 A. 244.
Thus, inevitable casualty does mean an event happening without any negligence. Inevitable casualty is synonymous with inevitable accident. See Ballentine's Law Dictionary, p. 639 (1948 Ed.). Likewise unavoidable accident is synonymous with inevitable accident. Ballentine's Law Dictionary, p. 1310 (1948 Ed.).
If we construe a lease most strongly against the lessor, and yet not relieve one for liability for his negligence unless such a waiver of negligence clearly appears, we ought to give a word at least its common meaning.
In Pennsylvania where a landlord has excepted in a lease a loss caused by inevitable casualty or inevitable accident, a tenant has been held liable for a negligently caused fire. Kelly v. Duffy, supra.
We think that the use of a qualifying adjective to 'accident' is significant. But where the phrase is 'accident by fire alone excepted' it appears to us that in Pennsylvania giving the word accident its common meaning it should include an occurrence coming about as a result of ordinary negligence. Similar words are in general use in leases in this locality. It is natural for the lessee to endeavor to escape this liability and it is also reasonable that the lessor would be willing to grant that relief. It reasonably follows that the parties intended just such a contract.
The plaintiffs cite Kennedy v. Loose-Wiles Biscuit Co., 1928, 94 Pa.Super. 602, in support of their position. Damage by fire or other accident was excepted under the terms of that lease, recovery was permitted for the damage done to the pipes which burst. The Court stated that if the pipes burst as a result of the fire as claimed by the defendant, recovery could not be had but if it resulted from freezing as a result of the defendant's negligent omission to turn off the water after the fire, recovery could be had. The jury by its verdict found that the damages complained of were not caused by fire but by the negligence in failing to drain the water pipes after the fire. The Kennedy case does not say as urged by plaintiff that recovery could be had for a negligently caused fire, under the terms of the lease used.
The word accident as it is used in this lease must be construed to include loss by fire though it occurred through the negligence of the defendant. The motion for judgment on the pleadings in respect to the cause of action as asserted by the plaintiff seeking to recover damages for the destruction of the demisable premises at 229 West Jefferson Street, Butler, Pennsylvania, should be granted.
However, in respect to the property located at 231 West Jefferson Street the result is different. This property was not leased to the defendant. It is the general rule that:
'* * * occupant of property on which an accidental fire starts is generally held liable for damages occasioned by its spread to other property, if the fire starts because of his negligent act, or because of the negligence of his agent or employee while acting within the scope of his authority or duties, provided of course, that the person whose property is damaged is not guilty of contributory negligence, and no independent cause has intervened.' 22 Am.Juris, Fires, § 10, p. 601.
This appears to be the law in Pennsylvania, Ramage v. Producers' & Refiners' Oil Co., 1918, 259 Pa. 491, 103 A. 336; Oil Creek & A. River R. Co. v. Keighron, 1873, 74 Pa. 316; McCully v. Clarke, 1861, 40 Pa. 399.
Counsel for the defendant argued that the defendant could not be liable for the damages done to Mr. Weeter's property located at 231 West Jefferson Street. Defendant has cited no case to support such a proposition nor have we been able to find any. The lease cannot be extended to protect the lessee for damage done to adjacent property if the fire was caused by his negligence. Therefore, judgment on the pleadings in respect to the property located at 231 West Jefferson Street must be denied. An appropriate order will be entered.
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