1. (a) Where a lease of premises contains the provision that, if the premises are damaged by storm, fire, earthquake, or other casualty, but not rendered wholly untenantable, the rental shall abate in proportion as the premises have been damages, properly construed this means that the stipulated rent shall be reduced in proportion to the amount of damages the premises have undergone during the period the premises remained thus damaged.
(b) The judgment of the trial court is not the law of the case where the same has been appealed and reversed.
2. A loss or injury may occur by fire without the actual burning of the property, as damage by water used to extinguish the flames. See Code, § 56-816.
3. Applying the facts in the instant case to the excerpt from the charge complained of in ground 7 of the amended motion for a new trial, such excerpt fails to constitute reversible error.
4. Damage to the ingress and egress of rented premises for a commercial business abutting on a street in a city affords the tenant the same rights as he would have, had the actual leased property been damaged. See City of Rome v. Lecroy, 59 Ga. App. 644 (2) (1 S.E.2d 759).
5. A judgment must be reversed on the general grounds where it appears that nowhere in the record is there any evidence to support the amount of the verdict returned in favor of the plaintiff. See Roddenberry Hardware Co. v. Merritt, 17 Ga. App. 425 (4) (87 S.E. 681).
DECIDED DECEMBER 16, 1948. The writ of error herein grows out of a proceeding by W. F. Buchanan and Alvin B. Cates, duly appointed receivers of the Winecoff Hotel Company and all assets thereof, hereinafter referred to as the plaintiffs, to recover by distress warrant certain rent against the defendant in error, William S. Hieber, hereinafter referred to as the defendant.
For a full and complete statement of the case to the point of the trial out of which the writ of error herein grew, seeHieber v. Buchanan, 202 Ga. 831 (44 S.E.2d 647).
After the case was reversed by the Supreme Court, the issue of fact made by the distress warrant, the counter-affidavit, and the pleadings filed by the parties amplifying their contentions, was tried in the Superior Court of Fulton County by a jury in accordance with the Supreme Court decision. The verdict was for the plaintiffs in the sum of $300, and judgment was accordingly entered. The plaintiffs thereupon filed a motion for a new *Page 435 trial on the general grounds, which was later amended by adding special grounds numbers 4 to 12 inclusive. The trial court overruled the motion for a new trial as amended, and this judgment is assigned as error. 1. (a) Paragraph number 11 of the lease contract under which the defendant held the premises provides as follows: "If premises are totally destroyed (or so substantially damaged as to be untenantable) by storm, fire, earthquake, or other casualty, this lease shall terminate as of the date of such destruction or damage, and rental shall be accounted for as between Lessor and Lessee as of that date. If premises are damaged but not rendered wholly untenantable by any such casualty rental shall abate in proportion as the premises have been damaged and Lessor shall restore as speedily as practicable, whereupon full rent shall recommence."
Although special grounds 4, 6, and 8, in dealing with this provision of the lease, complain of certain excerpts from the charge of the court, special ground number 11 complains that the verdict is unsupported by the evidence, and special ground 12 contends that the judgment entered May 10, 1947, which was appealed to the Supreme Court, is stare decisis — these special assignments of error are treated together because they deal with the construction of the latter part of paragraph number 11 of the lease contract. It is insisted by the plaintiffs that, properly construed, this provision of the lease means that the lessee is not entitled to a reduction in the rent in case of damage to the leased premises, except in the proportion that the premises might become untenantable. That is, if the whole space rented by the defendant continued to be occupied by him after the damage, he would be entitled to no reduction in the rent. On the other hand, if a part of the space was untenantable, and therefore not occupied by him after the damage, he would be entitled to a reduction in the rent in proportion to the relation of this untenantable part of the space to the whole rented premises. The defendant contends that this provision of the lease means that, if the rented premises should become damaged in one of *Page 436 the ways designated but not to such extent but that the lessee might continue to occupy the whole leased premises, the rent should be reduced in proportion to the amount of damages the premises had undergone during the period the premises remained thus damaged. The language in the lease under consideration is as follows: "If premises are damaged, but not rendered wholly untenantable by any such casualty, rental shall abate in proportion as the premises have been damaged." (Italics ours.) Therefore, to give this provision the meaning attributed to it by the plaintiffs would require in effect a change in the wording of the provision so as to make it say, "rental shall abate in proportion to the relation of the untenantable part of the premises to the tenantable part after the damage."
Section 20-704(2) of the Code, in dealing with the construction of contracts, provides: "Words generally bear their usual and common signification." By giving the words of that part of paragraph 11 of the lease contract which we have under consideration their usual and common signification, they mean that, if the leased premises are damaged by fire, or as the direct and proximate result of fire, but not rendered wholly untenantable thereby, the stipulated and agreed rent shall not continue to be paid in the same manner as before the damage, but thereafter and pending restoration of the leased premises, the rental shall abate in proportion to the extent of these damages.
(b) The order of the court of May 10, 1947, contended by the plaintiffs to be the law of the case, in the 12th ground of their amended motion for a new trial, contained a provision as follows: "The facts before the court do not justify a finding that the lessee is entitled to any abatement of rent on account of fire damages to the premises, it appearing that the premises covered by the lease, or any part of same, have not been rendered untenantable or unusable by reason of fire." In Hieber v.Buchanan, supra, the entire order of the superior court including the foregoing quoted part was excepted to and error assigned thereon as being contrary to law and contrary to the evidence adduced at the hearing and without evidence to support it. This judgment of the trial court, containing the excerpt quoted herein, was reversed by the Supreme Court. The effect of the reversal was to vacate it the same as if it had never been entered. *Page 437
The construction that the trial court, therefore, placed upon the language of the lease contract now under consideration is not the law of this case.
Special grounds 4, 6, 8, 11, and 12 are without merit.
2. Special ground 5 contends that the trial court erred in charging the jury as follows: "The casualty in this case involved being an alleged fire, which it is contended burned not only the Winecoff Hotel property but certain portions of the same as are covered by the lease contract in question." The plaintiffs contend that this instruction was error, because it was not contended that the space leased by the defendant was actually burned, it appearing by the evidence without dispute that it was not burned by the fire itself, but was damaged by water used to extinguish the flames and by other means directly resulting from the fire. Section 56-816 of the Code provides: "A loss or injury may occur from fire without the actual burning of the articles or property; as, a house blown up to stop a conflagration, or goods removed from imminent danger, or damage by water used to extinguish the flames." The charge was not misleading and constitutes no ground for the reversal of this case.
3. By special ground 7 it is contended that the court erred in charging the jury that, "in passing upon the question of what reduction, if any, the tenant . . would be entitled to . . he would not be entitled to any reduction on account of . . loss of profits attributable solely to diminution in the number of guests in the Winecoff Hotel itself." The plaintiffs contend that this excerpt was error, because they say that it in effect instructed the jury that the defendant would be entitled to a reduction on account of loss of profits unless such loss of profits was attributable solely to the diminution in the number of guests in the Winecoff Hotel.
The plaintiffs correctly contend that the defendant is entitled to no reduction in his rent because of loss of sales or profits. However, in the instant case, the defendant had expressly pleaded damage resulting from the lack of guests in the hotel after the fire, and the court was expressly telling the jury that this was not a proper measure of damages. The charge as far as it went stated the law correctly. The plaintiffs did not request fuller and more complete instructions. In Durand v.Grimes, *Page 438 18 Ga. 693 (3), it is said: "It is no objection to a charge that it does not go far enough, provided it states the law correctly as far as it goes." Applying the facts in the instant case to the excerpt of the charge complained of, such excerpt fails to constitute reversible error.
4. Special ground 9 contends that the trial court erred in charging the jury as follows: "As to any alleged temporary wooden structures which the tenant claims were put in front of his building as a result of such fire, if you find that such structures caused damage to the premises rented to him, you may make what you find to be suitable reduction therefor. You would not consider any structures in front of any portion of the Winecoff Hotel not leased to this tenant, however." There was at least some evidence that a wooden structure in front of the building to some extent impaired the ingress and egress of customers seeking to come from the street to the place of business of the defendant. The photographs alone show that. InCity of Rome v. Lecroy, 59 Ga. App. 644 (2), supra, the following is held: "A person, in the occupancy of premises in the operation of a commercial business, abutting on a street in a city, has an interest in the land during his term of occupancy, and can recover for an injury for such use represented in an injury to his business caused by the act of the city in the maintenance and continuance of an open ditch in the street, alongside the sidewall, which prohibits the ingress and egress of customers, where it is necessary, in the conduct of his business, for such customers to come from the street onto the property in automobiles." The impairment of the ingress and egress of customers, seeking to do business with the defendant, by the erection of a wooden structure along the front of the Winecoff Hotel building, placed there immediately following and as a direct and proximate result of the fire, was a damage embraced in the terms of the lease contract. The last sentence of the charge complained of, which is, "You do not consider any structure in front of any portion of the Winecoff Hotel not leased to this tenant, however," is favorable to the plaintiffs and can not be complained of by them.
5. Since special ground number 10 is but a contention that the verdict is not supported by the evidence, it is treated as an amplification of and considered with the general grounds. *Page 439
The plaintiffs contend that there is no evidence in the record as to the extent of the damages to the premises of the defendant, upon which the jury could have placed a monetary value and accordingly fixed the reduction in the rent.
The burden of proof was on the defendant to show the amount of rent reduction to which he was entitled, and although the evidence showed damage, it failed to afford the jury sufficient data to enable them to estimate with reasonable certainty the amount of the abatement. Mechanics Insurance Co. of Phila. v.Teat, 34 Ga. App. 361 (3) (129 S.E. 554).
Although the issue of law in the instant case has no relation to the pleas of partial failure of consideration, yet in many respects it may be compared therewith favorably, as they are at least akin to the extent that here, as well as in partial failure of consideration cases, the defendant can have no abatement unless he furnishes the jury sufficient evidence to enable them to estimate with reasonable certainty the amount of the abatement. See Crouch Son v. Spooner, 9 Ga. App. 695 (72 S.E. 61); Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (3) (73 S.E. 412); Consolidated Phosphate Co. v.Sturtevant Co., 20 Ga. App. 474 (5) (93 S.E. 155). There being no evidence in the record to support the amount of the verdict, the general grounds of the motion for a new trial in the instant case are sufficient. See Roddenberry Hardware Co. v.Merritt, 17 Ga. App. 425 (4), supra.
The trial court erred in overruling the plaintiffs' motion for a new trial as amended for the reasons set forth in the 5th headnote and this division of the opinion.
It was the opinion of the majority of the judges of the division of this court to which this case was assigned that it should be passed upon by the two divisions sitting as one court, and, a majority of the two divisions sitting as one court having decided that the questions involved should be decided by the two divisions sitting as one court, this case was accordingly considered and decided by the two divisions sitting as one court, pursuant to the act of the General Assembly, approved March 8, 1945, and set forth in Ga. L. 1945, p. 232 (1) (Code, Ann. Supp., § 24-3501).
Judgment reversed. Sutton, C. J., Felton, Gardner, andParker, JJ., concur. MacIntyre, P. J., concurring specially. [EDITORS' NOTE: THIS PAGE IS BLANK.] *Page 445