
    ELEVATORS — LANDLORD AND TENANT — PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    February 5, 1912.]
    Marvin, Winch and Niman, JJ.
    
      James Flynn v. Salina Wiltshire.
    1. Landlord , Liable for Accident Resulting from Faulty Construction of Elevator.
    When an elevator accident occurs as the'result of original faulty construction the owner of the building may be liable, though he has leased the building to a tenant.
    2. Landlord Retaining Control of Elevator and Repairs Liable for Defects.
    When a landlord under his lease to a tenant retains control of an elevator and agrees to keep it in proper condition, he is liable for an accident resulting from the elevator getting out of repair.
    3. Pleadings Amended to Conform to Evidence.
    When it can be done without surprise or injury, a case should be tried upon the evidence, and if objection be made that evidence is not admissible under the pleadings, the pleadings should be amended at once and without terms.
    4. No Reversal for Variance if not Prejudicial or Misleading.
    When there has been a variance between pleadings and proof, and no amendment of the pleadings to conform to the facts proved has been asked, ordered or made, the judgment will not be reversed unless it appear that by the variance the plaintiff in error was misled to his prejudice.
    Error.
    
      Reed, Russell & Fichelberger, for plaintiff in. error.
    
      F. C. Scott, for defendant in error.
    
      
       Dismissed in Supreme Court, March 25, 1913, on motion of plaintiff in error at his costs.
    
   WINCH, J.

This was an action brought by defendant in error to recover for personal injuries received in an elevator accident in a building owned by James Flynn,, plaintiff in error, and leased to the Flynn-Froelk Company, which was a defendant below, but is not a party to these proceedings in error.

It is doubtful if this court has such jurisdiction of the subject-matter of the case as will authorize it to review the judgment, for want of necessary parties. Jones v. Marsh, 30 Ohio St. 20.

However, we have examined the several assignments of error and give onr views regarding them.

It is claimed that the petition made no allegation of negligence against James Flynn, merely stating that lie was the owner of the building and that he had leased it to the FlynnFroelk Company, who were in possession of the building and consequently, of the elevator; that there is no allegation that Flynn retained any control over the elevator and that, therefore, under the adjudications in Ohio, no case was stated against him.

With this view we do not concur; the petition is susceptible of the interpretation that the accident happened because of original faulty construction for which the owner -would be liable, so that it complies with the rule stated in the third paragraph of the syllabus of the case of Shindelbeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584], and sets forth a ease such as is referred to in the last paragraph of the opinion, on page 267:

“Hence it is said that wherej at the time of the lease, the property, is in a ruinous or defective condition, and by reason, thereof the injury happens, then the owner or lessee is liable generally, though there are cases which make the liability dependent upon the covenants of the lease.”

But, if we are wrong in our interpretation, of the allegations of the petition, the next claim of error brings us to another aspect of the same question, so that another resolution of it is offered.

At the close of plaintiff’s evidence, which tended to show that the accident happened because of original faulty construction, both defendants asked for the direction of a verdict in their favor.

Thereupon the plaintiff asked leave to reopen the ease for the purpose, as he stated, “to put on proof as to the liability of James Flynn individually. ’ ’

This was permitted over the objection of Flynn. Thereupon the plaintiff put Flynn on the stand for cross-examination, and drew from him that under an oral lease with the Flynn-Froelk Company he retained eontrol of the elevator and was to keep in proper condition.

This evidence made him liable under the ruling in the ease already mentioned, and others referred to in the decision in the ease of Stackhouse v. Close, 83 Ohio St. 339 [94 N. E. 746].

Counsel for plaintiff in error conceded that it was within the discretion of the court to open up the case and permit further evidence to be introduced under the allegations of the pleadings, but he urges that this additional evidence was on an issue not made in the pleadings, and so should not have been admitted, or, if admitted, should have been afterwards withdrawn from the consideration of the jury, as requested by him.

The matter is ruled by statute.

Section 11556 G. C. provides:

“No variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon , the merits. When it is alleged that a party has been so mislead, that fact must be proved to the satisfaction of the court. It must also be shown in what respect he has been, mislead. Thereupon the court may order the pleading to be amended, upon such terms as are just.”

Construing this section the Supreme Court, in the case of Hoffman v. Gordon & Bro., 15 Ohio St. 212, 218, says:

“The evident object of the code is to vest in the court a discretion, where it can be done without surprise or injury, to try the case upon, the evidence, outside of the pleadings and if objection be made, to allow the pleadings to be conformed to the evidence, at once and without terms.”

Here there was no surprise or injury. Flynn knew all the time the nature of his obligations regarding the elevator under his oral lease with his tenant. The record fails to show, as required by the statute, how he was mislead, and so we must presume that he was not. True, he objected at the time to the introduction of this evidence, and the plaintiff neglected to ask leave to amend his petition to conform to this evidence, but he could have done so and been granted the leave.

What was first said about the uncertain character of the allegations of the petition is to be borne in mind here, for having said allegations-in mind it is not apparent that the variance suggested was material.

It was held in the case of Sibila v. Bahney, 34 Ohio St. 399, 408:

“That the evidence at the trial should be confined to the issue, admits of no doubt. The rule is as inflexible since as be-for the code, that the allegations and proof must correspond. But where the variance between the allegations and proof is such that the court would allow an amendment under Sec. 132 (G. C. 11557), without costs, to conform the pleading to the proof, the variance can not be deemed so far material under Section 131 (G. C. 11556) as t<5 justify a reversal, of the judgment. ’ ’

See also Dayton Ins. Co. v. Kelley, 24 Ohio St. 345 [15 Am. Rep. 612]; and Benninger v. Hess, 41 Ohio St. 64.

In the latter case, at page 69 of the.opinion, the court says:

“Where a judgment has been rendered, and there has been a variance between the pleadings and the proof, but not such as to mislead the opposite party to his prejudice, and where there has been an omission in such ease to conform the pleading to the facts proved, it will not be in furtherance of justice to deprive plaintiff of the fruits of the trial, by a reversal of the judgment in error.”

From this quotation and from the statute, it appears that a variance is not to be deemed material unless it ‘‘mislead the opposite party, to his prejudice.”

We have already seen, that Flynn was in nowise mislead to his prejudice by this variance.

See also Section 11364 G. C.

The trial court, at the conclusion of this additional evidence, dismissed the lessee defendant from the case and it went to the jury on the liability of Flynn alone. The dismissal of the lessee is complained of, as error on the round that it was an intimation that the court believed the owner was liable.

Such is an unusual view to take of the matter and is not consistent with the failure of plaintiff in error to make the lessee a party defendant to these proceedings in error. However, as Flynn’s ease was submitted to the jury on evidence tending to establish his liability, under a charge which we find, as a whole, was unobjectionable, we must assume that the jury confined itself to that evidence.

It is claimed that the court in the charge treated of the subject of contributory negligence of the plaintiff, which would be reversible error, for no such issue was raised in the pleadings, but we have been unable to find a suggestion of that topic in the charge.

Some rulings on evidence are complained of. The plaintiff was permitted to ask Flynn whether he carried insurance on the elevator. This was permitted, possibly, as tending to show Flynn’s own, conception of his control over the elevator. It was an unnecessary question, because he had already fully stated that under his lease he remained responsible for the elevator. As he was not asked how much insurance he carried, we have concluded that the jury was in nowise biased against him by reason of the information, it received on this subject.

Flynn was also asked, over his objection, whether immediately after the accident he made repairs to the elevator and he said he did. This question was competent as tending to show his control over it at the time of the accident, and not as tending to show that it was defective. The defect had already been proved.

We find no misconduct on the part of counsel for plaintiff in his argument to the jury. Counsel for Flynn himself asked what plaintiff’s counsel meant by a certain statement, and if he was doubtful of any objectional meaning at the time, it is not strange that a reviewing court should find no prejudice in the remark.

Nor have we any means of determining that the verdict was excessive, as charged. Defendant introduced no evidence in his own behalf and the case went to the jury on uncontradicted evidence, warranting the amount of the verdict.

On the whole we are unable to certify that substantial justice was not done in the case, and so the judgment is affirmed.

Marvin and Niman, JJ., concur.  