
    The Coventry Leasehold Co. v. Welker.
    (Decided June 8, 1932.)
    
      Messrs. Bulkley, Hauxhurst, Inglis S Sharp, for plaintiff in error.
    
      Messrs. Farquharson, Curtiss, Gillie, Gustafson & Miller, for defendant in error.
   Sherick, P. J.

The defendant below, the Coventry Leasehold Company, prosecutes error in this court, seeking a reversal of a judgment entered against it on the verdict found in favor of Arlene Welker, the plaintiff below.

The second amended petition charged the defendant, as the owner of certain leased premises, with negligence in the construction and maintenance of a certain basement stairway existing in a comparatively new one-story, two-store building, each storeroom and the basement thereunder at the time being under lease to their respective tenants, each of whom made common use of the stairway to the toilets located in the respective basements. The stairway did not form a means of ingress and egress to the building, but could only be reached by doors leading from each storeroom.

It is averred that the defendant had negligently constructed the stairway, in that the sixth step from the top was an inch and three-quarters greater in breadth, and protruded beyond the other steps; and that the risers of the steps were of different height, which was specially true of the fifth and sixth risers, and that the stairway had no handrail.

The plaintiff was an invitee, lawfully in the place of business of the one tenant. And in descending these steps she in some manner tripped on the sixth step, fell to the bottom, and was seriously injured. It is claimed that the faulty construction caused her to fall.

The answer denies the claim generally, and charges contributory negligence, of which, we would here inject, no proof was made.

At the conclusion of the opening statement, the company moved for judgment on the pleadings and statement. The motion was renewed at the conclusion of the plaintiff’s case and at the end of all the evidence. In each instance the motion was overruled. The failure to sustain these motions is the chief ground of error claimed, and in fact presents the several questions made.

The company maintains that it did not retain possession or control of the stairway, and hence owed no duty to Mrs. Welker; that the stairway was a part of the demised premises over which it had surrendered complete dominion and control. The company says, for it to have done otherwise, it would have had to become a trespasser upon its tenant’s leasehold. It is also claimed that the company cannot be liable, because there was in fact no reservation of possession or control by it as landlord, and the stairs were in the exclusive possession of the tenants at the time.

We have carefully examined the record in order that we might be fully apprised as to what the proof established. We find that the leases, or the terms thereof, are not in evidence, but that one of the tenants testifies that the tenants leased their respective storerooms and basements; and that the tenants had the use of the stairway in common; and that this tenant had previously requested the landlord to fix the stairway. Nothing concerning a leasing or reservation of the stairway is in evidence. This witness is the only witness that testifies on these points. We find it further to have been admitted that the company had active charge of the building and was in control of it.

It will be recalled that the second amended petition, upon which this cause went to trial, did not charge that the defendant company had either possession or control of the stairway, but is rather indited on the theory that the defendant company was negligent in its faulty construction of the stairway, and in permitting it to remain in such a dangerous condition, and in leasing the rooms and basements, when it knew, or should have known, that the stairway would be used by the tenants and their invitees. The words used in the amended petition do not employ the term “nuisance,” but from the facts pleaded it may be concluded that the company is charged with negligently erecting and maintaining a dangerous nuisance. The answer is equally noncommittal, in that a want of possession or control in the company is not pleaded as a defense.

The defendant company says that the amended petition is defective, in that possession or control in the company is not averred, and that the burden of so pleading and proving was on the plaintiff. And in the furtherance of this claim it is now stated that the cause was tried in the court of common pleas upon the theory of negligence, and not of nuisance, and that the latter theory is first heard of in this court. The record in this case indicates that it was so tried, and without objection or suggestion other than the motions made.

It may be said that these two classes of cases overlap, that is, practically all nuisances have an element of negligence in them, and a negligence case may rise to the point where the thing complained of may be a nuisance. And the theory upon which a landlord may be held liable where premises are leased upon which a nuisance exists is in that the landlord created the nuisance and is presumed to have intended the continuance thereof, and is therefore liable for the natural consequences of his own act.

It is said in a valuable note, listing many authorities, in 50 L. R. A. (N. S.), 288, that: “Where, at the time they are leased, the premises are or contain a nuisance, or an incipient nuisance which becomes active by the tenant’s ordinary use of the premises, the landlord is liable to third persons injured as a natural consequence thereof.” The same rule is stated in 16 Ruling Case Law, 1076. Therein it is said: “It is the well settled rule that the landlord is properly chargeable with liability to a stranger where the cause of injury to the latter is a nuisance existing on the premises at the time of the demise. No person can create and maintain a nuisance upon his premises and escape liability for the injury occasioned by it to third persons. Nor can a lessor so create a nuisance and then escape liability for the consequences by leasing the premises to a tenant.”

We find that the courts of this state have considered the principle embodied in the last quoted sentence. The court in McIlvaine v. Wood, 2 Handy, 166, and in Shindelbeck v. Moon, 32 Ohio St., 264, 275, 30 Am. Rep., 584, recognized the rule, and it was applied in Edwards v. Rissler, 16 C. D., 428, affirmed without report in Rissler v. Edwards, 69 Ohio St., 572, 70 N. E., 1129. Applying the rule stated to the matter now before us, upon the theory that the amended petition charges a nuisance, it becomes immaterial to the plaintiff’s claim whether the defendant company did or did not have possession and control of the stairway, and the pleading would not be defective.

And further examining the amended petition in the view of the theory of negligence, and not nuisance, we are drawn to a consideration of the case of Davies v. Kelley, 112 Ohio St., 122, 146 N. E., 888. Control in that case by the landlord over the porch in common use by the tenants was admitted, and possession and control was also pleaded. It was also a case in which the premises were permitted to get out of repair during the tenancy, and not one of negligent and dangerous construction and a subsequent leasing. It is not, therefore, a parallel case to the one at bar, but the reasoning thereof is indicative of our hereinafter remarked conclusion drawn therefrom.

It will be remembered that the only testimony in this case was to the effect that the defendant company leased the storerooms and basements thereunder to its tenants. There was no proof that the lessor had leased the stairway. But it is apparent from the pleadings and proof that the tenants would have had no beneficial enjoyment of the thing demised without the common use of the stairway, and such a demise, as said in the Davies case, supra, at page 127 [146 N. E., 890], “imposes an obligation upon the landlord to exercise reasonable care in maintaining the passage safe for such use; and, further, that the duty of the landlord to all persons visiting such tenant upon lawful occasions' is similar to that which he owes the tenant.” Further on, at page 130 [146 N. E., 891], the court says, in commenting upon the case of McGinley v. Alliance Trust Co., 168 Mo., 257, 66 S. W., 153, 56 L. R. A., 334, that “the fact of the landlord’s control can be established by other evidence, or be reasonably inferred from all the circumstances.”

Davies v. Kelley, supra, quotes with approval from the case of Farley v. Byers, 106 Minn., 260, 118 N. W., 1023, 130 Am. St. Rep., 613, to the effect that, “where a porch or stairway is used in common by the different occupants of a tenement house or flat building, the landlord will be presumed to have reserved possession thereof for the benefit of all the tenants, and he is under obligation to all parties having occasion to use the premises to exercise ordinary care to keep the same in repair.” If this is sound law, as it no doubt is, surely it must follow that the same presumption must obtain where premises are leased that contain a negligently constructed and dangerous stairway intended for use in common by the lessees occupying independent portions of the building. We further note the comment in Tiffany on Landlord and Tenant, vol. 1, page 628, used on page 132 of 112 Ohio State, of the Davies case.

Keeping in mind the averments of the petition, and the proof made thereof, we conclude, treating the issue as one of negligence, that, in the absence of averment in the answer of a covenant to the contrary, possession by the landlord of the stairway not demised for the common use of both tenants must be presumed. The law having created the presumption from the facts as pleaded, we see no reason why it was necessary for the plaintiff to have pleaded possession and control. The matter of a lack thereof would, in some instances, be a complete defense. We do not mean to say that in all cases averment and proof of possession and control are defensive matters, but in the case at bar we so hold.

The plaintiff in error propounds a second question. Did the duty devolve upon defendant to construct upon the demised premises a stairway having steps of equal height and width, and did a duty devolve upon defendant to equip this stairway with a handrail? This question must he answered in the negative, with the qualification, however, that it was its duty to so construct the stairway that it was reasonably safe for the use and purpose to which it was to be put. Whether it was negligently constructed, and a dangerous thing, or whether this structural defect was the proximate cause of the plaintiff’s fall, were questions of fact for the jury. This the defendant company recognized in its special request to charge, No. 2, which was given before argument: The jury had a right to consider whether or not the presence of a handrail would have made the stairway reasonably safe, for it was the landlord’s duty to have made it safe for the common use to which he intended it to be put. The defendant says its tenant leased the premises without a handrail on the stairs, and by covenant or otherwise it was not duty bound to install one. Perhaps that is true, but it was duty bound to make the stairway safe. The landlord by its leasing of the premises with its dangerous stairway for common use assumed a greater risk in case of injury resulting therefrom to his tenant’s invitees and guests, for it is more difficult to charge them with knowledge of the stair’s condition and defects than to charge the tenant. The landlord’s duty is no greater, but in this case it must be held to have intended and known that guests and invitees would use the stairway; it might well be that it was negligent in inviting them to use this defective and unsafe stairway, if such were unsafe, and a handrail would have made it safe. One may be guilty of negligence by an act of omission as well as an act of commission.

What we have just said disposes of the error claimed in the court’s refusal to give defendant’s request No. 3, and is also our answer to the claimed errors in the general charge. The court’s refusal to give defendant’s request No. 4 was not error. The request was confusing, in that it failed to embody the law, as we see it, with reference to the lack of handrail; it also presupposes that the stairway’s location in the building be considered. We see no different application of the law in the case of a stairway affording ingress and egress to premises than a stairway of the kind in question. We find no error in other claims assigned.

Considering the state of the pleading, and the indefinite theory of the issue made, the manner of trial, the proof adduced, the failure of counsel to request further instruction after argument upon the court’s invitation, as to nuisance, which seems to us to have been the real issue in the case, we are left with the view that substantial justice has been done in this case, and the judgment is therefore affirmed.

Judgment affirmed.

Lemert and Montgomery, JJ., concur.

Judges of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.  