On appeal from the Supreme Court.
For the appellant, Philip J. Schotland.
For the respondent, Darling, Barnes & Dowden (Frederick M. Barnes, of counsel).
The opinion of the court was delivered by
LLOYD, J. The action in this case was by the landlord of a storage warehouse property to recover for the loss of the warehouse building by fire, claimed, under one count in the complaint, to be due to a use of the premises by the defendant, tenant of the property, in violation of the terms of the lease, and under other counts to the negligence of the employes of the tenant. There was a nonsuit in the court below in so far as the grounds of liability were predicated upon a violation of the terms of the lease as alleged in the first count of the complaint, and a verdict and judgment for the defendant on the negligence charge.
The warehouse itself was a large building leased by the tenant from the American Grocers Society in 1920 for a period of ten years. In April, 1922, the plaintiff purchased the property subject to the lease and thereafter the defendant attorned to it until June, 1925, when the building was destroyed
by fire. The lease provided that the defendant would not "do or cause to be done any matter or thing in and upon the demised premises by which the risk or hazard by fire over and above the risk and hazard incidental to the ordinary conduct of the business specified in the lease may be increased or enlarged," and it was averred in the first count of the complaint that the tenant used the space provided for trucks to be brought into the building for loading or unloading purposes as a garage for the storage of automobile trucks; that it maintained a gasoline tank, pump and connections for the storage of large quantities of gasoline for the use of its trucks and filled the tanks of the trucks therefrom on the inside instead of the outside of the building in violation of the lease, and that in consequence a fire destroyed the building.
As above stated, the learned trial judge who heard the case with a jury in the court below, deeming that there was no proof of violation of the terms of the lease, directed that a nonsuit be entered as to the first count of the complaint, and submitted to the jury the question of alleged negligence.
The plaintiff appeals and sets forth as grounds of appeal that there was error in the direction of a nonsuit on the first count, that there was error in the instruction to the jury and in the failure to instruct the jury in accordance with a request submitted by the defendant.
As to the nonsuit, at the time of the making of the lease there was on the premises a five hundred-gallon tank for the storage of gasoline to be used for supplying the motor trucks. To this tank there was attached a one-gallon pump (subsequently increased in size to a five-gallon capacity) to be used for pumping gasoline from the storage tank to the motor trucks operating from the building, and at the time of the making of the lease the storage tank contained approximately one hundred and twenty-five gallons of gasoline. Facing the warehouse was a loading bay wide enough and deep enough to permit the placing of four large trucks. At the time of the fire on June 23d, 1925, two trucks and a small tractor were in this loading bay. While the tank of one of the trucks
was being filled, there was a leakage of gasoline which flowed out to the sidewalk and became ignited. Further proof as to the origin of the fire ...