Amusement Co. v. Rothenberg , 159 Miss. 800 ( 1930 )

The members of the court are in agreement that the contract involved is governed by the laws of Mississippi, and not Louisiana, and also that the contract does not violate our anti-trust statute. The disagreement is among the members of the court on the other questions decided by the controlling opinion.

Section 2273, of the Code of 1906, Hemingway's Code of 1927, section 5273, provides as follows:

"5273. Every place for public amusement shall have at least the following arrangements for the safety of those attending therein: The seats shall be located in rows with spaces between the seats adequate for easy ingress and egress, and an aisle of at least four feet in width shall run between the rows on the lowest floor, if there be more than one floor, from the commencement of the seats toward the place of performance, exhibition, or speaking, as far as the seats are located, and, if there be only one floor, then between the rows on that floor, and also an aisle of at least three feet in width shall be made to run along the outward ends of the rows of seats and next to the walls, and also around or along the ends of all rows of seats wherever located; and all aisles shall be kept unobstructed towards places of egress. All seats shall be located in rows, to which the aisles shall conform. There shall be as many doors for egress for those in attendance, not less than two at either end or side of the building, as can be made consistently with the proper strength of the structure. All scenery shall be made as secure against becoming inflamed as reasonably practicable, and all reasonably practicable arrangements shall be made for the supply of water or other means for extinguishment of fires, and they shall be kept constantly effective during the presence of the audience. In cities of over ten thousand inhabitants a fireproof dropcurtain of sufficient dimensions to cover the entire front of the stage shall be so hung that, upon an alarm of fire originating upon, or in rear of stage, it may be promptly dropped so as to prevent the fire from communicating with the auditorium."

Section 64 of the Building Ordinance of the city of Meridian provides as follows: "That all buildings in the city of Meridian, three stories high or more in height, not including basements, any portion of which above the second story is used as a . . . public hall . . . shall have thereon . . . suitable and substantial fire escapes."

Section 87 of the ordinance denounces as a misdemeanor its violation, subjecting the person convicted of such misdemeanor to a fine of not more than fifty dollars every day of violation to be a separate offense.

The wisdom of our statute and the ordinance is demonstrated by the many horrible and well-known catastrophes which have occurred in theaters within the last sixty years — most of which were caused by the inadequacy of means of egress, the greater part of them were the result of fire panics. Of these catastrophes the following is a partial list:

On December 5, 1876, 295 were killed in Conway's Brooklyn Theatre; on December 18, 1881, 800 were killed in the Ring Theatre in Vienna; on May 25, 1887, 200 were killed in the Opera Comique, Paris; September 5, 1887, 75 were killed in the Exeter Theatre, New York City; April 9, 1894, 76 were killed in the Davidson Theatre, Milwaukee; February, 1897, 230 were killed in Quanton Theatre, Pekin, China; May 30, 1897, 143 were killed in the Grand Charity Bazaar, Paris; January 12, 1903, 169 were killed in Rhodes Theatre Boyerton, Va.; December 30, 1903, 602 were killed in the Iroquois Theatre, Chicago; January 28, 1922, 98 were killed in the Knickerbocker Theatre, Washington; January 9, 1927, 77 were killed in the Laurier Theatre, Montreal; May 10, 1916, 22 were killed in the Wallacetown Theatre, Virginia; November 14, 1920, 7 children were killed in Catherine St. Movie House, New York; June 25, 1925, 6 were killed in the Gillis Theatre, Kansas City.

The provisions of the contract out of which the questions decided arise are as follows: Appellees leased to appellants the "Grand Opera House located on Fifth street . . . together with the rear of adjoining building of said opera house . . . and entrances, and all the equipment contained in the said theatre and in the rear storeroom of the adjoining building of the said Grand Opera House." The contract provided that there should be no repairs made by appellees except the roof, and that appellants "shall keep the said leased premises in as good order and condition as received, during the term of the lease, and return the leased property at the expiration of the said lease to the lessor in like good order and condition, wear and tear excepted," and that the property leased "shall be used for theatrical purposes only, and cannot be used for any other purpose without the written consent of the owners of the property."

The evidence either established without conflict, or tended to establish, the following facts: One entire block in the city of Meridian is occupied by appellees' four-story brick building and the Great Southern Hotel. This block is bounded on the east by Twenty-Second avenue, on the west by Twenty-Third avenue, on the south by Fifth street, and on the north by Sixth street. Appellees' four-story building is on the east part of the block, and the Great Southern Hotel on the west part. Appellees' building, beginning east and running west, is composed of a department retail store, the Grand Opera House, and, adjoining the Grand Opera House on the west, an office building; then comes the Great Southern Hotel building.

The Grand Opera House occupies the second, third, and fourth stories of that part of the building, and appellees' department store occupies the space east of the Grand Opera House, and also the space under it. The west wall of the Grand Opera House is the partition wall between appellees' office building and the Grand Opera House. The east wall of the Grand Opera House is the partition wall between the Grand Opera House and appellees' department store building. The Grand Opera House faces south on Fifth street, its rear is north on Sixth street. The front entrance to the Grand Opera House is a doorway nine feet wide at the extreme southwest corner of the building, with a railing running up the entrance. The stairway from this empties into a lobby on the second floor, from which three flights of steps lead to the dress circle, one of which is just north of the point where the entrance stairway reaches the lobby, another in about the middle of the lobby, and the other at the extreme right of the lobby. The lobby is shaped somewhat like a jug. The only exit from the lobby to the front on Fifth street is through a space of six feet four inches. From the lobby two winding stairways three feet wide lead to the landing in the balcony. Another winding stairway leads from the lobby up to a landing on the fourth floor, which leads into the gallery. This stairway is two feet and five inches in width. The stairway in the front, on Fifth street, is the only entrance used by the public in going to the theater. This empties into the lobby, from which those attending the theater go to the dress circle, balcony, or gallery, as provided in their tickets.

The theater building does not extend to the front wall of appellees' building on Fifth street side, except on the fourth floor. Appellees retained and occupied the entire front of the ground floor, except the entrance stairway and the space between the east wall of the lobby and the east wall of the building on the second and third floors. In front of the stage is the pit for the orchestra, at the right and left sides of the pit are exit signs, leading to an exit under the stage, which consists of a wooden stairway at the rear of the theater and under the stage, leading to Sixth street.

The building falls short of the requirements of the statute and the ordinance of the city of Meridian in more than fifty different respects. The evidence probably showed, however, that all the defects could be remedied without structural changes, at a moderate expense, except the lack of sufficient exits, and the lack of fire escapes; the former being required by the statute, and the latter by the ordinance of the city of Meridian.

It will be observed that the statute (section 5273) provides that in all places of public amusement "there shall be as many doors for egress for those in attendance, not less than two at either end or side of the building, as can be made consistently with the proper strength of the structure." The ordinance requires "suitable and substantial fire escapes."

If not without conflict, the evidence was overwhelming that there were not sufficient means of egress from the building. The only exit space that could be used with any degree of safety is the stairway four and one-half feet wide leading down through appellees' office building, and the space leading from the lobby, six feet and four inches wide, making a total exit space of one hundred thirty inches. Experts of high standing were introduced as witnesses. They all agreed, including Mr. Springer, an expert introduced by appellees, that the minimum exit space in a building of the capacity of this theatre (the seating capacity being nine hundred seventeen) is twenty inches for every one hundred of seating capacity, which would amount to an exit space of one hundred eighty-four; and therefore the exits from the Grand Opera House aggregate fifty-four inches less than the minimum.

The evidence tended to show that the Grand Opera House was so far short of being safe for the purpose for which it was intended that in all probability, in case of a fire panic, the exits would be choked with dead and dying people.

The evidence showed that additional exits could be made consistent with the proper strength of the building; but the evidence also showed that, in order to construct additional exits, it would be necessary to go through property belonging to appellees, not leased to appellants, and that such additional exits would require structural changes, not only in the property leased, but in property belonging to appellees, not leased. The photographs in the record, in connection with the other evidence in the case, would seem to demonstrate this to be true. Of course, additional exits could not be made through the east and west walls of the opera house, because such exits would lead into the office building and the department store building belonging to appellees, not leased. The ground floor under the opera house was part of appellees retail department store, and was not leased. Additional exits could not be made at the front entrance on Fifth street without encroaching upon appellees' department store; nor at the rear, without practically destroying that part of the building, and reconstructing it, which also would necessitate an encroachment on appellees' property not leased.

In 1926 appellants made an effort, without avail, to induce appellees to agree that the Grand Opera House be remodeled, and used for some other purpose than a theater. Appellants offered evidence to show that in 1927 the building was condemned by the building inspector of the city of Meridian as unsafe and dangerous to the theater-going public, and offered to show also by evidence that appellants' liability insurance on the building was canceled by the companies that carried it on the same ground.

Shortly before this suit was brought, appellants agreed to continue the use of the Grand Opera House as a theater, paying the monthly rentals, provided the appellees would get the building inspector of the city of Meridian to certify that it was safe to use it for that purpose. Appellees made an effort to do that, but failed; and they then claimed that the building complied with the law, and demanded that appellants continue to use it for theatrical purposes, and pay the monthly rentals according to contract. This appellant refused to do, and thereupon this suit was brought by appellees.

Appellees neither proposed to appellants that they (appellees) would make the building conform to the requirements of the law at their own expense, nor did they offer to permit appellants to do so at their expense. In short, immediately before this action was brought, the attitude of the parties was simply this: Appellees said to appellants, "We demand that you continue to conduct the theatrical business in the Grand Opera House, as provided in the contract, and pay the rentals therein provided." Appellants replied that they were perfectly willing to do so, provided it could be legally done; appellants contending that it could not be legally done, appellees that it could. In other words, appellants contended that radical structural changes were necessary in the building to make it conform to the law, and appellees contended that no changes whatever were necessary, and that it already conformed to the law.

The majority opinion solves the questions involved upon the following principles: That there was no implied covenant on the part of the lessors to make repairs of the leased premises; nor was there an implied covenant on the part of the lessors that the leased premises were suitable for the purposes for which they were leased; that there was no implied covenant on the part of the lessors that the demised promises were fit for the purpose for which they were leased, or that they should continue fit for such use; that, where a lease contract is silent on the subject, the lessee has the right to put the leased premises in suitable condition for the purpose for which they were leased, and the lessee must do so at his own expense, unless there is an express provision in the lease to the contrary, and this is true, although it involves structural changes in the leased premises.

To sustain these principles, the majority opinion cites Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L.R.A. 155; Green v. Long, 152 Miss. 117, 118 So. 705; 36 C.J. p. 645, section 660; and other authorities.

These authorities do hold that there is no implied covenant on the part of the lessor to keep the leased premises in repair; but they do not hold that it is the duty of the lessee to make radical structural changes in the leased premises in order to make them fit for the purpose for which they were leased. That question will be considered later on in this dissent.

The trouble with the controlling opinion is that it applies principles which have no application to the facts of this case. There is here involved a much larger question than the mere private rights and obligations existing between the ordinary lessor and lessee. There is involved the rights of the public, which are controlling The private rights and obligations of the parties must stand aside for the benefit of the public welfare. Our statute providing the manner in which buildings for public amusement shall be constructed and maintained declares the public policy of the state on the subject. It is also a criminal statute. Any contract that promotes the violation of the statute is therefore void as against the public policy of the state. Such contracts are not voidable, but absolutely void and unenforceable, regardless of the intention of the parties. Neither party to the contract can stand on it. Good faith has nothing to do with the question. The court will not enforce such a contract. It will leave the parties where it finds them, regardless of the fact that one of the parties may have an unconscionable advantage of the other; provided both of the parties to the contract knew the facts when the contract was entered into. Ignorance of the law is wholly immaterial. Brien v. William, 7 How. 14; Wooten v. Miller, 7 Smedes M. 380; Odineal v. Barry, 24 Miss. 9; Hoover v. Pierce, 26 Miss. 627; Deans v. McLendon, 30 Miss. 343; Bank v. Stegall, 41 Miss. 142; Barker v. Justice, 41 Miss. 240; Mitchell v. Campbell, 111 Miss. 806, 72 So. 231; American Mfg. Co. v. Crescent Drug Co., 113 Miss. 130, 73 So. 883, L.R.A. 1917D, 482 note; Lowenburg v. Klein, 125 Miss. 284, 87 So. 653.

It was held in American Mfg. Co. v. Crescent Drug Co., supra, that, in declining to enforce an illegal contract, the courts are not influenced by the wishes of the parties thereto, but are governed exclusively by reasons of public policy; that therefore the admission of a defendant in an action on such a contract that the contract is legal can have no effect on the result.

It is true, of course, as contended by appellees, that the theatrical business, within itself, is legal. But it does not follow that such business conducted in a building which does not conform to the statute is legal. On the contrary, the illegal building characterizes the business carried on therein. If the building does not conform to the statute, the whole thing is illegal — the building and the business. They cannot be separated. The contract bound appellants to carry on the theatrical business alone in the Grand Opera House. Appellants had no right, under the terms of the contract, without the written consent of appellees, to conduct any other business therein.

Courts will not be industrious to sustain contracts when the effect will be to weaken the force of laws and regulations designed for the protection of human life. Where a contract, whether so intended by the parties or not, offends against a statute intended to promote the public safety, the court will not enforce it. This principle applies with especial force to contracts for the lease of buildings where the public gather for amusement or other purposes. Leuthold v. Stickney, 116 Minn. 299, 133 N.W. 856, 39 L.R.A. (N.S.) 233, Ann. Cas. 1913B, 405; Medoff v. Fisher, 257 Pa. 126, 101 A. 471; Hart v. City Theatres Co.,215 N.Y. 322, 109 N.E. 497; Bebb v. Jordan, 111 Wn. 73, 189 P. 553, 9 A.L.R. 1035; Nave v. McGrane, 19 Idaho, 111, 113 P. 82; Progress Amusement Co. v. Baker, 106 Wn. 64, 179 P. 81, 82; Manvell v. Weaver, 53 Wn. 408, 102 P. 36; Gerner v. Church,43 Neb. 690, 62 N.W. 51; R.R. Stores v. Fabyan Co., 120 Misc. Rep. 142, 197 N.Y.S. 815; Howell v. City of Hamburg, 165 Cal. 172,131 P. 130; Heineck v. Grosse, 99 Ill. App. 441; Romano v. Bruck, 25 Misc. Rep. 406, 54 N.Y.S. 935; Getty v. Fitch, Cornell Co., 107 Misc. Rep. 404, 177 N.Y.S. 691, 693; Zeibig v. Pfeiffer Chemical Co., 150 Mo. App. 482, 131 S.W. 131, 132.

Under the law, was the duty on appellants to make the necessary structural changes in the Grand Opera House in order to conform to the statute? The lease contract involved is silent on the subject of repairs, except that it provides that appellees should keep the roof to the building in repair, and that appellants should keep the leased premises in as good repair as when leased, during the term of the lease, and return the leased property at the expiration of the lease to the lessors "in like good order and condition, wear and tear excepted."

A covenant to keep leased premises in repair means that the premises are to be restored to a sound and good state after decay, injury, dilapidation or partial destruction, not to change either the form or the material of the demised building. Such a covenant binds the lessee to make only ordinary repairs; it does not require him to make repairs necessitating radical changes in the structure of a permanent, substantial, and unusual nature. 36 C.J., p. 139, section 778, and authorities cited in the notes.

The lease contract requires that at the expiration of the lease appellants return the Grand Opera House in the same condition it was when they received it, natural deterioration excepted. Was it possible, under the evidence, for appellants to comply with that stipulation in the lease after making radical structural changes necessary in order to comply with the law? In the light of the evidence, to ask that question is to answer it. In the first place, to have done so, appellants would have been required to materially encroach on the property of appellees not leased; and, in the second place, at the end of the term appellants would have returned to appellees, not the building leased — an outlawed building — but a legal building, radically different in many respects from what it was when it was leased.

The case of Zeibig v. Pfeiffer Chemical Co., supra, decided by the Court of Appeals of Missouri, is illuminating in this connection:

"Our statute — Laws Mo. 1901, p. 219, as amended (see Laws Mo. 1903, p. 251 [Ann. St. 1906, sections 9053 — 1]) — declares: `It shall be the duty of the owner, proprietor, lessee or keeper of every . . . building . . . which is used as a business place, . . . which has a height of three or more stories to provide said structure with fire escapes attached to the exterior of said building,' etc. It thus appears that, in so far as the general public is concerned, the law lays an obligation against both the owner and lessee to construct fire escapes. Johnson v. Snow, 201 Mo. 450, 100 S.W. 5; Yall v. Snow, 201 Mo. 511, 100 S.W. 1, 10 L.R.A. (N.S.) 177, 119 Am. St. Rep. 781 [9 Ann. Cas. 1161]; Coutant v. Snow, 201 Mo. 527, 100 S.W. 5. But as between the owner and the lessee, aside from any contract, the obligation of the law is not identical with that which obtains with reference to the public, for in such circumstances the duty of constructing the fire escape rests primarily upon the owner of the property. The question had been pointedly decided by the Supreme Court in Yall v. Snow, 201 Mo. 511, 524, 525, 100 S.W. 1, 10 L.R.A. (N.S.) 177, 119 Am. St. Rep. 781 [9 Ann. Cas. 1161]. It is true as a general proposition, that by the common law the burden of repairs on the demised premises rests upon the tenant, and, unless he covenants to do so, the landlord is not required to construct appurtenances, nor restore the premises after having placed them in the possession of the lessee. 1 Taylor on Landlord and Tenant (9 Ed.), sections 327, 328; Ward v. Fagian, 101 Mo. 669, 14 S.W. 738, 10 L.R.A. 147, 20 Am. St. Rep. 650; Herdt v. Koenig, 137 Mo. App. 589, 594, 119 S.W. 56.

"But to this general rule there is a well-established exception which obtains with respect to the construction of such permanent improvements or fixtures as fire escapes where the duty is enjoined by a positive statute as here. The doctrine which obtains as to this matter is thus stated in 1 McAdam on Landlord and Tenant (3 Ed.) 440: "To the general rule that the landlord is under no obligation to repair except by force of an express covenant there is one exception. If a statute makes it the duty of a landlord to repair in any particular, such repairs must be made by him, in the absence of an agreement by the tenant to make them. Thus, where a city charter imposes upon the owner of tenement houses the duty of keeping fire escapes attached thereto in such repair . . . that they will be suitable for the purpose designed. It is not within the range of ordinary repairs which a tenant, in the absence of an agreement to the contrary, is required to make. McAlpin v. Powell, 70 N.Y. 126, 26 Am. Rep. 555; Willy v. Mulledy, 78 N.Y. 310, 34 Am. Rep. 536.' See, also, 2 Wood on Landlord and Tenant (2 Ed.), section 381, to the same effect. That the doctrine above stated is the law of this state is obvious from the remarks of the court and citation of authorities in Yall v. Snow, 201 Mo. 511, 521, 524, 525, 100 S.W. 1, 10 L.R.A. (N.S.) 177, 119 Am. St. Rep. 781 [9 Ann. Cas. 1161]. It thus appears that as between the plaintiff owner and the defendant lessee, the obligation to construct the fire escape primarily obtains against the owner of the property, and no recovery may be had against the defendant on account thereof unless it covenanted to do so. The mere fact that defendant leased the premises for business purposes with knowledge that the fire escape which the law required had not been constructed will not imply a covenant to the effect that it should assume the burden suggested; for implied covenants in leases are such only as the law raises from the relation of the parties or from the use of certain terms in establishing that relation. 1 Taylor on Landlord and Tenant (9 Ed.), section 252; 1 McAdam on Landlord and Tenant (3 Ed.), pp. 362, 363, sections 113, 114."

The majority opinion holds that the ordinance of the city of Meridian requiring fire escapes on a building of the character of the Grand Opera House was not properly proved, but that, if it had been, it would not defeat appellees' right to recover; in other words, the court holds that appellants were obligated to provide the fire escapes, and not appellees.

A fire escape has a well-known significance; it is a means of egress from each floor of a building directly to the ground on the outside, not through any other building or buildings. In the first place, under the evidence, in this case it is apparent at once that fire escapes could not be constructed, leading from each of the three floors of the Grand Opera House, down on Fifth street, without going through property not leased; and, in the second place, the erection of such fire escape would require structural and radical changes in the property not leased. The evidence leaves it uncertain whether fire escapes could be constructed at the rear of the Grand Opera House. Probably the majority opinion is right in holding that the ordinance is not properly proved. The majority opinion contains this language: "If an illegal condition be annexed to a contract, it will not void the whole contract, but the illegal part will be treated as void" — citing Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692.

What bearing that principle has on the facts of this case is not clear from the opinion. If it is in response to appellees' argument that the stipulation in the lease contract, limiting, the use of the Grand Opera House to theatrical purposes alone, is illegal, that provision is separable from the balance of the contract, which is legal, and the legal part is sufficient to justify the judgment appealed from; the trouble about that position is, there is no way of separating that provision from the balance of the contract. The parties themselves did not separate it. The lease contract was evidenced by three written instruments and, in addition, the notes provided for therein. Two of the papers embodying the contract were dated July 12, 1923; the other was dated July 17, 1923, five days after the date of the other two. The latter paper is the one that limits the use of the building to theatrical purposes. It recites exactly the same considerations moving between the parties as the other two papers do. The second, third, and fourth paragraphs are in this language:

"Whereas said parties entered into a contract of lease dated July 12th, 1923, by which the lessors leased to the lessees the premises known as the Grand Opera House and the Star Theatre, in Meridian, Mississippi, for a term of twenty-five years, beginning September 1st, 1923, and

"Whereas, there was omitted from said agreement the provisions hereinafter contained, which the parties desire now to include in said agreement as part thereof;

"Now, therefore, for the considerations set forth in theagreement of lease, the parties hereto do hereby declare, acknowledge and agree that the following provisions shall be held and deemed to be part of said agreement of lease." (Italics ours.)

Then follows, besides another, the limiting stipulation. It seems plain that it took the three instruments to embody the whole contract. The paper dated July 17th simply so stated. It stated that the limiting provision was a part of the original contract, but was omitted for some reason, probably oversight. One of appellees, Levi Rothenberg, on cross-examination, admitted that all three instruments were one contract, based on one consideration, and that the limiting provision, and another unnecessary to mention, had been unintentionally left out of the original contract. So we have, not two contracts, but one inseparable contract; the promises on one side being in consideration of the promises on the other side. Therefore, if the limiting provision is illegal, the whole contract is illegal.

And, furthermore, as hereinbefore stated, shortly before this suit was brought, appellees demanded that appellants go on with their theatrical business in the building, in its then condition, contending that the building conformed to the law. This is shown without conflict in the evidence. Levi Rothenberg, as a witness in the case, admitted as much. In other words, in carrying out the lease contract, all of the parties treated the three instruments as constituting one inseparable contract. Appellees never said to appellants that, if it was illegal to carry on the theatrical business in the building, they were at liberty to use it for some other purpose. On the contrary, the appellees demanded to the last that appellants continue the theatrical business in the building. In other words, appellees all the time stood squarely on the provision in the contract limiting the use of the building to theatrical purposes. It is therefore too late for this court to undertake to divide the contract up into parts, and separate the legal from the illegal. The court will not do for appellees what they refused to do for themselves.

If appellants were not entitled to a directed verdict in this case, surely they were entitled to have the questions submitted to a jury.

Griffith, J., joins in this dissent.