It would appear from this case that the Pennsylvania Supreme Court made a blanket holding that all painting is not repairs. However, an examination of the paper books in this case reveals the following fact at page 22 of the appellee landlord's brief:
'* * * the painting was done for decorating purposes only and not for the purpose of making any repairs to any known defective condition on the premises.'
There was no reason to even consider whether the painting in Coradi was in the nature of repairs and the abovequoted language recognizes that there could be an occasion when painting could constitute repairs.
Caradi is distinguishable from Greco v. 7-Up Bottling Co. of Pgh., et al., supra, insofar as in Greco the Supreme Court found voluntary painting by the landlord to be an act evidencing his control of the area of the building where the injury occurred. The Supreme Court further held that the rotted condition of the window frame could have been discovered by the landlord '* * * by manually tapping on the frame whereby both tactilely and aurally its condition would be established.' (401 Pa. p. 445, 165 A.2d p. 10) This was found to be a reasonable inspection even though the defect was latent.
So in the case at issue, the rusted condition of the platform between the slab and the wall and the rusted condition underneath could have been discovered by a reasonable inspection by Dauphin who by voluntarily painting the platform had assumed control of this part of the building. Dauphin never presented any evidence that its painting was done for decorative purposes and this became an issue of fact for the jury to determine whether the painting was repairs or not. Particularly is this true when all of the plaintiff's experts testified that painting and caulking of the platform were the proper methods of maintenance and repair of the structure. (See N.T. pp. 116, 117, 171, 175, 177.)
Therefore, it was a proper issue of fact for the jury to determine whether this painting, done by Dauphin, voluntarily, was repairs and further, if it did constitute repairs whether it was negligently done as to bring the landlord within the recognized exception that a landlord out of possession who gratuitously or voluntarily undertakes repairs is liable for any injury resulting from his negligence. Harris v. Lewistown Trust Company, supra.
Dauphin further argues that no evidence was presented to the jury as to when the painting took place so that they could not determine that the painting took place prior to the accident in 1958. This argument completely ignores all the testimony of plaintiff's expert, Mr. Keast, who saw the remains of the platform two years after the accident, still laying on the second floor and that the platform had not been reconstructed. (N.T. 164, 179) The only possible inference the jury could make was that the painting was performed before 1958.
In our charge to the jury we read the applicable portion of the lease which created an indemnity right in Dauphin from the Pragers for any liability which may befall Dauphin during the term of the lease. (N.T. 245) We also charged the jury that the Pragers were not liable if when the lease commenced there existed some defect of which they were unaware and the landlord knew or should have known of such a defect and did not notify the tenant of its existence. From the facts as previously stated Dauphin knew that Pragers would not make an inspection since they simultaneously sublet the premises to Straffs who were already in possession before the lease was signed on May 1, 1953. Dauphin consented to this subletting as evidenced by paragraph 7 of the rider agreement attached to the lease and by the resolution of its Board of Directors dated April 30, 1953, incorporated into the lease. There also was a jury question as to whether the condition causing the injury existed before the date of the lease and was not covered by the indemnity clause. An exculpatory clause in a lease will be construed strongly against the landlord. Law v. Reading Company, 312 F.2d 841 (3 Cir. 1963). It has been held that such a provision did not release a landlord from the consequences of a dangerous condition existing before the execution of a lease and known to the landlord at that time. Baldwin v. MeEldowney, 324 Pa. 399, 188 A. 154 (1936).
Also, Dauphin had entered judgment against the Pragers on the lease for non-payment of rent in October, 1957, and attached all rents due thereafter from the Straffs. Under the provisions of the lease at paragraph 14, non-payment of the rent constituted a breach of the lease and under paragraph 14(2) of the lease '* * * the term of the lease shall determine and become absolutely void without any right on the part of the lessee to save the forfeiture by payment of any sum due or by other performance of any condition, term of covenant broken * * *'
By this action on the part of Dauphin they recognized a forfeiture on the part of the Pragers and a termination of the lease some two to three months before the injury to the plaintiff. Therefore, no right of indemnity existed in Dauphin under the forfeited lease.
MOTION FOR NEW TRIAL
Dauphin objected to the competency of the plaintiff's expert witness, Mr. Thompson, who had been engaged in the structural steel business since 1949 and had examined channels similar to the ones used in the platform in this case. He also examined the remains of the platform on January 16, 1958, two days after the accident. Dauphin further objected to the qualifications of Mr. S. A. Keast, a structural engineer who had been associated with many companies in this capacity since 1926. He also formed his own company in 1953 dealing in structural work for any type of building.
The qualifications of such expert witnesses are subject to the Court's determination of their competency. This determination rests in the sound discretion of the Court and it is for the jury to decide how much weight should be given to expert opinion. Abels v. McDaniel, 199 Pa.Super. 638, 186 A.2d 640 (1962).
We ruled these witnesses to be eminently qualified for the purposes for which they were called and that they possessed the requisite skill and practical experience in their respective fields. Our instructions to the jury properly advised them that whatever weight they attributed to these experts was for them to decide. (N.T. 233, 234) No prejudice resulted to the defendant in this regard.
Dauphin offered no testimony in the course of the trial and relied solely on the evidence presented by the plaintiff's witnesses and the various leases admitted into evidence. No contradictory expert testimony was offered to contravene the plaintiff's expert witnesses. There existed sufficient evidence from which the jury could have found that the dangerous condition existed prior to the lease in 1953 and that Dauphin assumed control of the platform by painting various parts of it and further, that such painting constituted repairs which were negligently performed by Dauphin's employees. Our charge to the jury properly instructed them to determine the nature and purpose of this painting and whether it was negligently done by Dauphin. (N.T. 238, 239, 240) As far as Dauphin is concerned, we find our charge correctly stated the law and was eminently fair in all respects including the supplemental requests which we granted as presented by Dauphin. (N.T. 253, 254, 255). Motions denied.