George A. Shutt, a general partner and Robert E. Kresko, a general partner of Shutt-Kresko, a Texas General Partnership, Plaintiffs-Appellants, v. Chris Kaye Plastics, Corporation, Defendant-Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: George A. Shutt, a general partner and Robert E. Kresko, a general partner of Shutt-Kresko, a Texas General Partnership, Plaintiffs-Appellants, v. Chris Kaye Plastics, Corporation, Defendant-Respondent. Case Number: No. 70526 Handdown Date: 07/22/1997 Appeal From: Circuit Court of St. Louis County, Hon. Bernhard C. Drumm, Jr. Counsel for Appellant: James Mauze Counsel for Respondent: Charles A. Weiss Opinion Summary: The plaintiffs are the owners of a building in St. Louis County. The defendant is a former lessee. The plaintiffs lessor sued on account of damage allegedly caused by the leakage of oil during the term of the extended lease and also for "waste." The jury returned a verdict for the lessee on both counts. The lessor appeals. No error is assigned on the waste count, but it is argued that the verdict director on oil damage imposed an additional element not warranted by the terms of the lease. REVERSED AND REMANDED. DIVISION FIVE HOLDS: The trial court erred in adding an inappropriate element to the verdict director, thereby imposing a hurdle that the lessor was not obliged to clear. Citation: Opinion Author: CHARLES B. BLACKMAR, Senior Judge Opinion Vote: REVERSED AND REMANDED. Ahrens, P.J., and Crandall, J., concur. Opinion: Please substitute the opinion in the above-styled order originally handed down on July 22, 1997. This substitution, made on September 23, 1997, does not constitute a new opinion.

The plaintiffs are the owner of a building in St. Louis County. The defendant is a former lessee. The plaintiffs lessor sued on account of damage allegedly caused by the leakage of oil during the term of the extended lease, and also for "waste." The jury returned a verdict for the lessee on both counts. The lessor appeals. No error is assigned on the waste count, but it is argued that the verdict director on oil damage imposed an additional element not warranted by the terms of the lease. We agree and so reverse and remand for a new trial. The initial lease was executed February 19, 1969. It contained sundry provisions relating to the allocation of liability between the lessor and the lessee for damage to the leased premises. The lessor places principal emphasis on a paragraph in the printed form lease, reading in pertinent part as follows:

1. Landlord shall not be liable to Tenant or Tenant's employees, agents, or visitors, or to any

other person whomsoever, for any injury to person or damage to property on or about the demised premises, caused by the negligence or misconduct of Tenant, its agents, servants, or employees, ... or caused by the buildings and improvements located on the premises becoming out of repair, or caused by leakage of gas, oil, water or steam or by electricity emanating from the premises, or due to any other cause whatsoever, and Tenant agrees to indemnify Landlord and hold it harmless from any loss, expense, or claims arising out of any such damage or injury; except that any injury to person or damage to property caused by the negligence of Landlord or by the failure of Landlord to repair and maintain that part of the premises which Landlord is obligated to repair and maintain shall be the liability of Landlord and not of Tenant, and Landlord agrees to indemnify Tenant and hold it harmless from any and all loss, expense, or claims arising out of such damage or injury. Any liability insurance which may be carried by Landlord or Tenant with respect to the demised premises shall be for the sole benefit of the party carrying such insurance and under its sole control (emphasis supplied). The lessee exercised an option to renew for five years, and then the parties entered into five extension agreements. The first three are not involved in the present controversy. Each contained language equivalent to the following: "All other terms and conditions of the February 19, 1969 lease are to remain the same." The Fourth Addendum to the lease was effective June 13, 1993, and expired by its terms on December 31, 1993. Paragraph 3 listed 15 items of damage for which the lessee was not to be liable to the lessor. We list those which have been brought into the present discussion in the following excerpt.

1. Tenant shall not be responsible or liable, subject to the provisions at the end of this paragraph,

for: . . . (8) repairing any of the flooring, . . . (11) repairing any parking or drive areas, . . . (15) or otherwise restoring the premises to their original condition; . . .. However, tenant is not relieved of any responsibility it may have for repairing any major damage to the premises caused by it between 6-1-93 and 12-31-93 . . .. Exhibit A hereto, prepared by Trammell Crow is intended by Trammell Crow to describe the general nature of existing conditions. It is not intended to be an exhaustive or detailed list or description of every condition. Nothing in the aforementioned Paragraph 3 or elsewhere relieves Tenant of any responsibility for the testing or remediation of any environmental issues which now exist or shall occur between 6-1-93 and 12-31-93. Any structural repairs which become necessary as part of such testing or remediation shall be at Tenant's sole expense (emphasis supplied). The addendum concludes with the following: "All other terms and conditions of the February 19, 1969, lease and subsequent addenda are to remain the same." A fifth addendum extended the term of the lease to March 31, 1994. It

confirmed the continued viability of prior agreements except where modified, but had no other significant provisions. After the lessee surrendered the premises the lessor asserted that hydraulic oil used in the lessee's manufacturing operations had leaked and seeped into the ground. It sought damages for removal of earth, and also for the restoration of a parking lot and the concrete floor. The lessee did not agree that there was substantial leakage or seepage, and also claimed that the methods of correcting the damage were excessive and unnecessary. The lessor then filed suit for damages. The defendant lessee filed the usual motions for judgment, which were overruled, and no claim is made on appeal that the plaintiffs lessor did not make a submissible case. The lessor requested a verdict directing instruction with several alternative hypotheses, which the court refused. The lessor does not now advance the refusal of this instruction as ground for reversal. The court prepared its own instruction based on MAI 26.02 tendered, but added an additional paragraph Second, so that the instruction as given read as follows: Your verdict must be for Plaintiffs if you believe: First, Defendant deposited oil on Plaintiffs' property and Second, such oil deposits constitute an environmental issue, and Third, because of such oil deposits, Defendant's Lease Agreement obligations were not performed, and Fourth, Plaintiffs were therefore damaged (emphasis supplied). The lessor argues that the instruction is defective because it deviates from MAI 26.02. This argument misses the mark. The question is not one of instruction, but rather one of the interpretation and harmonization of the several agreements constituting the lease. If the language relating to environmental issues is a valid limitation on any liability the lessee might have on account of oil leakage, then it is properly included in the instruction and its omission would be error. MAI exists to explain the governing law to juries; not as a restatement of the substantive law. See Nooney Krombach Co. v. Blue Cross and Blue Shield of Missouri, 929 S.W.2d 888, 894 (Mo. App. 1996). The lessor's argument makes it clear, however, that it objects to the imposition of the element set out in the second paragraph of the verdict director, and that it presented this objection to the trial court at all necessary stages including the time of submission and the motion for new trial, indicating that it would be satisfied with a basic 26.02 submission. We must decide, therefore, whether paragraph 15 of the initial lease requires the lessee to respond in damages to the lessor for the results of oil leakage, without the necessity of showing that the oil leakage constituted an environmental issue.

The construction of a written instrument is a question of law, for decision by the court. Anchor Centre Partners, Ltd. v. Mercantile Bank, N.A., 803 S.W.2d 23, 32 (Mo. banc 1991). Inasmuch as the question is one of law, the trial court's resolution is fully reviewable on appeal. Id. When a contract is embodied in several documents the documents must be read together. 17A C.J.S Contracts Sec. 298, p. 128. Neither party has given us any indication of discussions about paragraph 15 prior to the execution of the lease and so we do not have to deal with the problem of extrinsic evidence. We are, rather, relegated to the bare language of the contract documents. The lessee argues that paragraph 15 was designed to apply only to indemnification against third- party claims and not to give the lessor the right to recover for its own damage. It appears, however, that in the initial lease the parties expressly contemplated the possibility of damage from oil leakage and took steps to provide for that contingency by placing the risk on the lessee except in a situation in which the leakage is caused by the lessor. The language calls for indemnification against any "loss, expense, or claims." There is no restriction as to the loss or expense which is covered. It is reasonable to assume that the lessor would want protection for its own property from a risk expressly contemplated, especially since the most likely incidence of damage from oil leakage would be to the reversion. The primary meaning of "indemnify" according to the Random House Dictionary (2nd ed. 1987) is "to compensate for damage or loss sustained . . .." It makes no difference that the language was not drafted by the parties but rather was contained in a printed form. See discussion, Hartland Computer Leasing Corp., Inc. v. The Insurance Man, Inc., 770 S.W.2d 525, 527 (Mo. App. 1989). This circumstance simply shows that the problem of leakage is not uncommon in long- term leases. Nor is there any basis for construing the language in favor of or against either party. Nooney Krombach, 929 S.W.2d at 892. The language added to the forms shows that the parties bargained for such modifications and additions as they thought necessary. The paragraph also suggests that the parties may protect themselves by insurance to the extent they deem prudent. The plaintiffs lessor states a proper claim for damage from oil leakage. We must next determine whether the language of paragraph 3 of the Fourth Addendum modifies the terms of paragraph 15 of the initial lease, so that recovery by the lessor is precluded unless it can demonstrate that the oil leakage presents an "environmental issue." The obvious purpose of the addendum was to limit the lessee's liability to the lessor. This was accomplished in 14 explicit clauses, from which any language relating to oil leakage is conspicuously absent. The catchall clause 15 of paragraph 3 refers only to "restoring the premises to their original condition," and we do not believe that the language of this clause is broad enough to abrogate the explicit provision of the original lease relating to oil leakage. The parties considered the incidence of liability very carefully in framing the addendum, and sought to limit

some of the liability imposed on the lessee in the initial lease. If they intended to modify the oil leakage provisions they could have done so very easily. When both specific and general language arguably apply to the same subject matter, moreover, the specific language may properly be held to prevail over the general. H.B. Oppenheimer & Co., Inc. v. The Prudential Ins. Co. of Am., 876 S.W.2d 629, 632 (Mo. App. 1994). We conclude that the language of paragraph 15 of the initial lease survived the Fourth Addendum, as did all other provisions which were not explicitly modified. The plaintiffs, therefore, did not have to show that any damage from oil leakage presented an environmental issue. That language might provide for recovery of claims otherwise precluded by the addendum, but it did not establish an additional requirement for recovery under unmodified provisions of the initial lease. The trial court erred in adding the second paragraph to the verdict director, thereby imposing a hurdle which the lessor was not obliged to clear. The lessee points to items (8), relating to repairs to the flooring, and (11), having to do with repairs to the parking and drive areas. It argues that the lessor, in any event, could not recover for the cost of restoring the concrete floor and the parking lot, made necessary by entry through those areas, to remove soil allegedly contaminated by oil leakage. The point is not ripe for our decision because it was not shown to have been raised in the trial court, by objection, request for instruction, or otherwise. Nor is it mentioned in either party's points on appeal. We express no opinion on the issue, which may be raised by appropriate means on retrial. Because of the error in adding an inappropriate element to the verdict director, the judgment is reversed and the case is remanded for new trial on the oil leakage claim, and for other proceedings consistent with this opinion. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.