
    Medley v. Seiter.
    (Decided February 9, 1931.)
    
      Mr. George 8. Hcmke, for plaintiff in error.
    
      Messrs. DeCamp, Sutphin & Brumleve, for defendant in error.
   Ross, P. J.

This case comes into this court on error from the court of - common pleas, wherein a demurrer to the petition was sustained. Plaintiff, Mary I. Medley, not desiring to plead further, judgment was entered for the defendant.

The petition alleged that the defendant “owned, controlled, and managed a certain three story apartment house,” that the husband of plaintiff “rented from the defendant for the use of himself and of this plaintiff and their children Apartment No. 1 in said building,” and that “the defendant by his negligence permitted and allowed said ceiling, over which he had the sole control, to get out of repair and become in a dangerous condition,” and that it fell and injured the plaintiff.

It is contended by the defendant that he owed no duty to the plaintiff.

A landlord owes no duty to a tenant to repair the leased premises in the absence of contractual obligation or statute. In Goodall v. Deters, 121 Ohio St., 432, 435, 169 N. E., 443, 444, it was said:

“This court, in the case of Shinkle, Wilson & Kreis Co. v. Birney & Seymour, 68 Ohio St., 328, 67 N. E., 715, stated the law in the syllabus as follows: ‘ The relation of lessor and lessee arises out of contract, and, where there is neither express warranty nor deceit, the latter cannot maintain an action against the former on account of the condition of the premises hired.’
“This case has been approved and followed in the cases of Stackhouse v. Close, 83 Ohio St., 339, 94 N. E., 746, and Marqua v. Martin, 109 Ohio St., 56, 141 N. E., 654.”

The petition is indefinite and ambiguous and would have been subject to motion to make definite and certain. Such motion was waived by the demurrer, and we must take the petition as we find it, construing its language most favorably to the plaintiff.

There is a distinct allegation that the ceiling was under the sole control of the landlord, although it is also alleged that the lessor leased the apartment —which would have presumably included the ceiling. It must'be borne in mind also that the plaintiff is not the lessee. The landlord certainly owes a duty to keep that portion of the premises over which he reserves control in such reasonable repair as will not injure those rightfully thereon. Davies v. Kelley, 112 Ohio St., 122, 126, 127, 146 N. E., 888.

While it is difficult for the court to conceive of a state of facts justifying the allegations of the petition as to sole control by the landlord of the ceiling, which manifestly must have been used as a ceiling by the tenant, we cannot escape the definite allegations of the petition eliminating this case from those cases where the premises are under the dominion of the tenant.

The demurrer to the petition should have been overruled.

The judgment will be reversed, and the cause remanded to the court of common pleas, with instructions to overrule the demurrer.

Judgment reversed and cause remanded.

Hamilton and Cushing, JJ., concur.  