Before MARIS and KALODNER, Circuit Judges, and WORTENDYKE, District Judge.
These are appeals from an order and judgment of the District Court of the Western District of Pennsylvania in an action by the plaintiffs seeking recovery from the defendant for damages to certain buildings at 229 and 231 West Jefferson Street, Butler, Pennsylvania. Defendant appealed from judgment for the plaintiffs with respect to the property at 231. Plaintiffs cross-appealed from the order against them as to the property at 229.
The facts may be summarized as follows:
One Harry O. Weeter owned the two properties above mentioned. Hardware Mutual Insurance Company of Minnesota and Hardware Dealers Mutual Fire Insurance Company, plaintiffs, issued policies of fire insurance to Weeter covering the two buildings. Weeter leased the property at 229 to the defendant, C. A. Snyder, Inc., ("lessee") a corporation engaged in the business of selling, servicing and repairing automobiles.
On December 12, 1951, while an employee of lessee was repairing an automobile at 229 a fire occurred resulting in destruction of the buildings at 229 and 231. In accordance with the terms of the insurance policies the plaintiffs paid Weeter for the damage to the two properties and as subrogees brought action against lessee alleging negligence on its part. In defense lessee asserted a provision in its lease with Weeter which provided:
"Any damage to building, fixtures, water or gas pipes, during the term of this lease to be paid by lessee on demand; and on expiration of this lease, the property is to be surrendered in as good order as it now is, reasonable wear and tear, and accident by fire alone excepted, without further notice from said lessor."
As to 229 West Jefferson Street:
Lessee's motion for judgment on the pleadings was sustained as to the leased premises at 229 West Jefferson Street on the ground that the word "accident" as used in the lease "must be construed to include loss by fire though it occurred through the negligence of the defendant."*fn1
The plaintiffs contend that the provision in the lease does not relieve the lessee from liability for negligence. Plaintiffs rely upon the well-settled rule in Pennsylvania*fn2 that a waiver of responsibility for negligence must be expressed in clear and precise language. Cannon v. Bresch, 1932, 307 Pa. 31, 160 A. 595; Wright v. Sterling Land Co., 1945, 157 Pa.Super. 625, 43 A.2d 614; Lerner v. Heicklen, 1926, 89 Pa.Super. 234. The reason for this requirement is that in the ordinary course of contracting to establish a particular legal relationship a party does not normally waive the responsibility of the other party for his negligence with respect to property involved in the contract. It is also clear that a lease must be construed most strongly against a lessor and in a light most favorable to the lessee.McClintock & Irvine Co. v. Aetna Explosives Co., 1918, 260 Pa. 191, 103 A. 622. So viewing the law of Pennsylvania, the question is whether the phrase, "accident by fire alone excepted", constitutes a clear and precise waiver of the lessee's responsibility for a negligently caused fire.
The Pennsylvania cases involving the relief of a party to a landlord-tenant relationship from liability for negligent acts have considered the landlord aspect of the relationship.
In Cannon v. Bresch, supra [307 Pa. 31, 160 A. 596], a landlord was held not liable to a tenant for negligently-caused water damage due to the terms of the lease which relieved the landlord "from all liability for any and all damage caused by water." In Wright v. Sterling Land Co., supra [157 Pa.Super. 625, 43 A.2d 615], the tenant's automobile was stolen from a garage in the landlord's custody. The landlord was not liable under a lease which provided that "the lessor shall not be liable for any injury or damage from any cause whatever." Where a lease provided "nor shall the (lessors) be held responsible for loss of property however occurring", the landlord was not liable to a tenant for negligently-caused water damage. Lerner v. Heicklen, supra.*fn3
The intent to relieve the landlord from liability for his negligence was recognized by the Pennsylvania courts in the above cases. We think the intent to relieve the tenant from liability for negligently-caused fire damage would similarly be recognized in this case, especially since the lease must be viewed in a light most favorable to the lessee.
That "accident by fire alone excepted" expresses the intention to waive the lessee's responsibility for fire damage resulting from the lessee's negligence is, of course, dependent upon whether the word "accident" includes negligence. True, "'Accident,' is difficult to define; it is not a technical legal term with a clearly defined meaning." 1 C.J.S., Accident, p. 425 (1936). The Pennsylvania courts have recognized, however, that the popular conception of "accident" includes negligence. "Accident, and its synonyms casualty and misfortune, may proceed or result from negligence, or other cause known, or ...