No. 12817 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

EMMA LOIdE , 

Plaintiff and Appellant, 

-vs - 

FRED C. ROOT, et a]-., 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant : 

Richard J. Conklin argued, White Sulphur Springs, 

Montana 

For Respondents : 

Garlington, Lohn and Robinson, Missoula, Montana 

Sherman V. Lohn argued and Gary L. Graham argued, 

Missoula , Montana 

Submitted: November 22, 1974 

Decided: rrR - .c - @ 13TZ 

--- Filed: -r b 6 -''k!k .d .I, Y' 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal by the lessee, Emma Lowe, from a summary 

judgment of the district court, Missoula County, granted in favor 

of lessors, Fred C. Root, Carl E. Dragstedt, Evelyn Dragstedt, 

Ella R. Clausen, Elmer S. Dragstedt and Elinor R. Dragstedt. 

On April 9, 1970, Emma Lowe entered into two nearly identical 

leases with the lessors, each involving an undivided one half 

interest in the same real property described as the Belmont Hotel 

in the city of Missoula. One lease identified Fred Root as the lessor, 

the other identified the Dragstedts and Ella Clausen as lessors. 

Each lease provided that the term of the lease should run 

up to and including March 31, 1974. The lessor expressly covenanted 

for the lessee the quiet enjoyment of said term. Lessee agreed 

to: 

"* ? * care for and maintain the interior of said 

premises and the exterior casings of all windows 

located on said premises; to permit no unlawful 

use of said premises; to make no major alterations 

without permission of the lessor; to maintain and 

repair the heating plant and hot water heater, * * * 

and to carry adequate insurance to protect the lower 

floor tenants from any water damage." 

The lessors, for their part, were: 

"* * * to keep and maintain the exterior walls of 

said premises and the roof, and to be responsible 

for the care and repair of said roof * * yc." 

All parties expressly understood and agreed that they had 

examined the premises and knew the condition thereof. 

While in possession of the premises lessee Emma Lowe received 

a letter for the fire marshal, dated January 23, 1973, outlining 

a number of violations of the Life Safety and Electrical Codes 

of the city of Missoula and state of Montana. With the sole exception of deficiences with respect to the fire escape, all deficiencies 

enumerated in the letter involved the interior portion of the 

building. The letter referred to a letter dated December 23, 1970 

which listed many of the same deficiencies. Emma Lowe admitted 

receiving this 1970 letter. The January 1973 letter ordered the 

violations to be corrected by August 1, 1973. 
Lessor Root contacted the county attorney and requested him 

to initiate an action to condemn the premises from further use 

as a hotel, boarding house or rooming house. On May 14, 1973, 

an order of condemnation was filed in the district court declaring 

the premises to be a fire hazard and a public nuisance and ordering 

all parties to this instant action to alter and repair the building 

on or before August 1, 1973. On August 3, 1973, the district 

court granted summary judgment, affirming the order of condemnation 

and directing the state fire marshal to proceed with its enforcement. 

On June 19, 1973, Lowe filed a complaint in district court 

against Fred Root seeking lost profits for the remainder of the 

lease term and renewal term. The pertinent grounds of the complaint 

were: The premises were unfit for the purpose for which they were 

rented. Defendant Root had failed to maintain the premises in a 

good and proper fashion so that they could be operated for the 

purpose for which the lease was intended. Plaintiff Lowe had 

demanded that defendant Root perform according to the terms of the 

contract to restore the premises to a good and proper condition 

for the purpose for which they were rented and that defendant refused. Emma Lowe had been caused to become the defendant in the 

condemnation action because of the failure of defendant to repair. 

In Count VIII of her complaint Lowe alleged in the following 

garbled fashion: 

"* * * That they [the defendants] fraudulently concealed informntion concerning the defects on the premises, 

from the plaintiff and fraudiientlywithheld the same information, which was known to them concerning the defective 

condition of the premises and that said defects were concealed unobservable by a common examination of the premises, 

and that the plaintiff, in reliance on the assurance of the 

defendants that the premises were, in fact, in fit and proper 

order, basis for the performing of the business of a hotel 

rental as they had been leases for, entered into the agreement. It 

Count IX of the complaint alleged: 

 hat the defendant has wilfully, wrongfully, unlawfully, 

and intentionally attempted to drive the plaintiff from 

the full and quiet enjoyment of the premises, under the 

lease. That the defendant, Fred C. Root, is the City Attorney of the City of Missoula, and was privity to knowledge 

concerning the defects above alleged in the premises. * * * 
That said defendant, Fred C. Root, has acted 

willfully, maliciously, and wrongfully in an 

attempt to vex, harass, annoy and intimidate the 

plaintiff gc * *. The defendant has, as an agent 

for the * * * [Dragstedts and Clausen] and for 

himself used the position of his office to exert, 

through the County Attorney's Office, caused to be 

filed a complaint alleging that the plaintiff is 

guilty of allowing the premises to fall into decay, 

and further the defendant has, at his specific request 

and intent, caused the County through the County Attorney's office, to issue an Order declaring the premises 

a fire hazard and attempting to abate the same." 

Three days later Lowe filed a nearly identical complaint against 

the remaining defendants. The only substantial difference in this 

second complaint was she alleged that Root acted as the agent of 

the other defendants. 

Subsequent to the condemnation, Lowe vacated the premises and 

no further rentals were paid. 

The two actions heretofore mentioned, plus an unlawful detainer 

action filed by defendants against plaintiff Lowe were consolidated. 

Defendants moved for summary judgment. In its judgment and order 

granting defendants ' motion, the district court held that under 

the terns of the leases defendants were not obligated to make the 

substantial changes and alterations required; that section 42-202, 

R.C.M. 1947, limits recourse by a tenant to vacating the premises 

or performing repairs up to the amount of one month's rental where, 

as here, the leased premises are for human habitation; that punitive 

damages cannot be awarded without a showing of actual damages; and, 

that plaintiff inspected the leased premises and knew its condition. 

Plaintiff appeals from the district court ' s granting 

defendants' motion for summary judgment. 

Three issues are presented for consideration on appeal: 

Was the district court correct granting summary 

judgment to the defendants on the issue of fraud? 

Was the district court correct in its determination that 

sections 42-201 and 42-202, R.C.M. 1947, constitute a bar to the 

claim of plaintiff? 

(3) Was the district court correct in its determination that 

plaintiff's complaint did not present a factual question of wrongful 

disruption of possession? 
We answer all questions in the affirmative. 

As to the issue of fraud, the previously quoted Count VIII 

of the complaint alleged fraudulent concealment of certain information as to defects in the property prior to the leases. 

Although appellant appears to have abandoned any argument that 

she was defrauded as to the physical condition of the premises, 

we shall discuss that issue in order to show that summary judgment 

in favor of respondents was proper with respect to that level 

of fraud. In support of her misrepresentation argument, appellant 

cites Lee v. Stockmen's National Bank, 63 Mont. 262, 284, 207 P. 

623. - Lee sets forth the elements necessary to prove actual fraud. 

it goes further, however, and states: 

I1 1 When it appears that a party, who claims to have 

been deceived to his prejudice,has investigated for 

himself, or that the means were at hand to ascertain 

the truth * 9; * of any representations made to him, his 

reliance upon such representations made to him, however 

false they may have been, affords no ground of complaint. 1 

(Grinrod v. Anglo-American Bond Co., 34 Mont. 169, 85 

Pac. 891; Power & Bros. v. Turner, 37 Mont. 521, 97 Pac. 

950 ; 26 C. J. 1149. ) I' (Emphasis supplied). 

In other words, if appellant's inspection of the premises 

revealed or would have revealed the true physical condition of the 

premises, she would have no right to rely upon any concealment by 

respondents with respect to the physical condition of the premises. 

Both leases provide that the parties "agree that they have 

examined the premises and know the condition thereof1'. Appellant 

admits she inspected the premises. A review of the deficiencies as 

cited in the order of condemnation, reveals that all of the alleged 

defects were open and notorious. A superficial inspection'of the 

building would reveal those deficiencies. Applying the facts of 

this case to Lee, and particularly to the language quoted heretofore, 

necessitates a finding that an actionable case of fraud as to the 

physical condition of the premises could not be found under the 

circumstances. 

The claimed misrepresentation was not argued by appellant Lowe 

in the trial court, except in what may be described as an oblique 

manner. The rather garbled allegation in Count VIII of the complaint 
did not, by itself, allege fraud as to legal consequences flowing 

from the physical condition of the premises. 

Following the granting of summary judgment, appellant filed 

what she called a motion for rehearipg. For the first time, not 

in the motion, but in the brief filed with the motion, appellant 

Lowe rather obliquely states that: 

"* * * the premises were not in fact, fit for the 

purpose of leasing the same as a hotel and that the 

knowledge that the premises were not fit for the 

purpose for which they were leased was a special and 

peculiar knowledge available to the defendants through 

their agent, and not readily available to the plaintiff 

by mere examination of the premises. That it required 

an expertise, that the defendant possessed and the 

plaintiff did not.* * *.I1 

With this bare reference at this point in time, the trial court 

will not be put in error. It is difficult to lend credence to the 

claim of Emma Lowe of fraudulent misrepresentation in light of the 

information contained in the exhibit attached to the order of 

condemnation. The letter dated January 1973 to Lowe recites that 

in a letter dated December 23, 1970, many of the discrepancies were 

pointed out. This much later, beyond the period of the statute of 

limitations, more than an oblique reference in a brief on a motion 

for rehearing would be necessary to resurrect a fact issue on motion 

for summary judgment . 

Appellant's second issue is whether sections 42-201 and 42-202, 

R.C.M. 1947, constitute a bar to the claim of appellant. Those 

sections provide: 

"42-201. The lessor of a building intended for the 

occupation of human beings must, in the absence of an 

agreement to the contrary, put it into a condition fit 

for such occupation, and repair all subsequent dilapidations thereof which render it untenantable, except such 

as are mentioned in section 42-105." 

"42-202. If, within a reasonable time after notice to 

the lessor of dilapidations which he ought to repair, he 

neglects to do so, the lessee may repair the same himself, 

where the costs of such repairs do not require an expenditure greater than one month's rent of the premises, and 

deduct the expenses of such repairs from the rent, or the 

lessee may vacate the premises. in which case he shall be 

dischargeh from further payment of rent, or performance of 

other conditions. I I 
Section 42-105, R.C.M. 1947, simply states: 

"The hirer of a thing must repair all deteriorations 

or injuries thereto occasioned by his ordinary negligence. t I 

In Landt v. Schneider, 31 Mont. 15, 17,18, 77 P. 307, the 

Court said: 

11 It is an elementary principle of law that, in the 

absence of a statute or agreement, there is no implied 

warranty that leased premises are suitable for the 

purposes for which they are demised, or that the lessor 

will keep the property in repair. 11 

See also: Kintner v. Harr, 146 Mont. 461, 482, 408 P.2d 487. 

~ontana's statutes were derived from the California Civil Code, 

sections 1941 and 1942. In 1881, in Van Every v. Ogg, 59 Cal. 563, 

566, the California Supreme Court well stated the reasons for the 

two statutes: 

"It is insisted that the section last cited [42-2011, 

by operation of law, inserts in every lease a covenant 

on the part of the landlord to repair. But bearing in 

mind that at the common law no such covenant was implied, 

and reading the two sections together, the intent seems 

clear that the obligation of the landlord should be limited 

by the extent of the privilege conferred upon the tenant; 

that it is the duty of the landlord to repair upon notice, 

and if he does not perform this duty he is to be compelled 

to pay, by deduction from the rent, to the extent of a 

month's rental---or, at the option of the tenant, the term 

be concluded without redress to the landlord." 

Then the California Court went on to point out that prior to an 

amendment in 1874, section 1942 of their civil code read: 

""1f. within a reasonable time after notice to the 

lesior of dilapidations which he ought to repair, 

he neglects to do so, the lessee may repair the same 

himself, and deduct the expenses of such repairs from 

the rent, or otherwise recover it from the lessor. I I1 

In 1922, this Court decided Noe v. Cameron, 62 Mont. 527, 532, 

205 P. 256, a case almost identical to the instant appeal. In - Noe 

an action was brought to recover damages alleged to have been 

sustained by plaintiff as the lessee of a hotel because of the 

failure of defendant to make repairs after notice was given by 

plaintiff. This Court, citing Bush v. Baker, 51 Mont. 326, 152 P. 750, 

said: 
"'2 * * These sections [42-201 and 42-2021, as we are 

told in the report of the Code Commission, were taken 

from California, and investigation discloses that they 

came to us with a construction upon them which leaves no 

room for doubt. [Cases cited]. This construction is to 

the effect that, if the landlord fails to repair after 

notice, the tenant may himself repair, within a certain 

limit, or move out; but he has no redress in damages for 

injury to person or property consequent upon the landlord's 

failure to repair. Whether this construction be right 

or not, it was presumably adopted with the sections themselves, it constitutes a rule of property, and the courts 

of this state are without authority to alter it. 111 

Beyond a doubt a hotel is "a building intended for the occupation of human beings" and thus within the scope of sections 42-201 

and 42-202, R.C.M. 1947. Appellant had the choice of making the 

repairs called for by the letter of the fire marshal and deducting 

the cost from the rent payments, to the extent of one month's rent, 

or to vacate the premises. She cannot, however, recover damages 

from respondents for their failure to put the hotel into a condition fit for the occupation of human beings. 

This result is not affected by the fact that one of the 

discrepancies alleged in the letter of the fire marshal was the 

fire escape and that the lessors had covenanted "to keep and 

maintain the exterior walls of said premises". Conceding for the 

sake of argument that the fire escape was within the definition 

of "exterior walls" and thus the duty of respondents to repair it, 

such clause in the lease added nothing to the statutory duty of 

the lessors imposed by section 42-201, R.C.M. 1947. Since the 

language of the lease added nothing to the statutory duty, the 

limitation of section 42-202, R.C.M. 1947, remains applicable. 

We do not want to be understood as holding that the parties could 

never contract in excess of the statutory duties with respect to 

dilapidations which rendered the premises untenantable. We merely 

state that this is not such a case. 

In appellant's third issue on appeal she asserts the complaint 

states a cause of action in tort and breach of contract based upon 

the disturbance of her contract right to quiet enjoyment of the 

premises. She intimates that respondents are liable under this 
theory of action because respondent Root allegedly requested the 

county attorney to bring action against her for the purpose of 

ousting her from the leased premises. Her complaint also hints 

at an action for malicious prosecution and that ~oot's position as 

city attorney had some relevance to her cause of action. 

Any hint of an action for malicious prosecution can be quickly 

disposed of. Elements of that action, among others, are: (1) the 

prior proceeding must have terminated in favor of the present 

plaintiff, and (2) there must be an absence of probable cause for 

the institution of such proceeding. 54 C.J.S. 14alicious Prosecution, 

$4. Here, the condemnation action terminated in summary judgment 

in favor of the state. 

Cases cited in the Annotation, 41 ALR2d 1414, 1442, illustrate 

the rule that where a tenant's enjoyment is interfered with in 

the exercise of the police power, and is not caused by the breach 

of any obligation owed by the landlord to the tenant, such interference does not constitute a breach of the covenant for quiet 

enjoyment. Appellant seems to accept this as a general rule but 

contends that the affirmative actions of Root in instigating the 

condemnation action constitute a breach of the quiet enjoyment 

covenant. 

After exhaustive search, we find only one case having similar 

facts. In Dolman v. United States Trust Co. of N.Y., 134 N.Y.S.2d 

508,510, the trial court denied the defendant's motion to dismiss 

the complaint, stating: 

"For, if the plaintiff can support his claim that the 

defendant by its affirmative act instigated and facilitated 

the condemnation proceedings [eminent domain] and the consequent eviction, then in my view the plaintiff has presented 

a cause of action for breach of the covenant of quiet enj oymen t . 1 I 

However, on appeal Dolman was reversed, 2 N.Y.2d 110, 138 N.E.2d 784, 

157 N.Y.S.2d 537,541, the Court of Appeals held "the tenant was 

evicted by reason only of the exercise of the sovereign power of 

eminent domain" and that the lessor's cooperation with the city did 

not constitute a breach of the covenant of quiet enjoyment. 
We are unwilling to hold that the scope of the covenant of 

quiet enjoyment precludes a lessor, knowing of violations of 

ordinances and statutes, from reporting such violations to the 

authorities. We should not require a lessor to risk damages being 

assessed against him because he has taken it upon himself to protect 

the public by reporting the facts to the authorities. 

Here, the district court in the condemnation action established 

that the defects on these premises constituted a fire hazard. The 

public interest is served by allowing any person who has knowledge 

of a risk to public health of safety, be he lessor or otherwise, 

to feel free to report such risk to the authorities without fear 

of having later to respond in damages. The intent of the lessor in 

reporting such a risk to public health and safety is immaterial, 

the public interest being paramount. The fact that lessor was the 

city attorney is likewise immaterial, there being no privity 

between the city and county attorneys. Root was in the position 

of any other private lessor. 

Having examined the issues raised and finding no merit, we 

affirm the judgment. 

We Concur: 

Justices / 

Hon. Gordon Bennett, sitting for 

Chief Justice James T. Harrison.