
    Stackhouse v. Close et al.
    
      Lessor of building out of possession — Not liable to tenant or third party, when — Lessor reserving right to direct alterations by tenant — Liable with lessee, when — Section 4238-1, Revised StaUites.
    
    1. A lessor of a building out of possession and control is not liable to the tenant or other person rightfully on the premises for their condition, in the absence of deceit or of any agreement or liability created by statute.
    2. Where a lessor reserves in the lease the right to direct and supervise any alterations made by the tenant, and alterations are made with knowledge of lessor by. which parts of the building leased are converted into a room or place for the meeting of a lodge or other association of persons for any of the purposes named in Section 4238-1, Revised Statutes, the lessor and 'lessee are both liable under that section, if such alteration is in the construction, arrangement or means of egress dangerous to the health or lives of persons so assembled.
    (No. 12587
    Decided March 7, 1911.)
    Error to the Circuit Court of Lucas county.
    
      This action was brought by the plaintiff, Mary A. Stackhouse, against George W. Close and The United States Coaster Construction Company to recover damages for injuries alleged to have been sustained by her on May 3, 1906, as the result of the fall of an elevator in a building on Summit street in Toledo, known as the Wonderland Theater owned by the defendant Close.
    The petition in substance avers that on the evening of that day she attended the meeting of a fraternal order in a hall on the third floor of the building; that Close had been for many years the owner of the building, a large four-story building, the floors divided into rooms with common passageways and stairways on each floor, and an elevator and' the necessary machinery to operate the same from the bottom of the building to the top, all of which were a part of the building and used as a means of ingress and egress; that on and before said day the construction company held a lease of the premises executed by Close in its favor; that by a separate written instrument between said parties and as a part of the lease, defendant, Close, covenanted that said company might make changes and repairs in the interior of said building under the direction and supervision of an architect selected by and representing Close; that by the terms of the instrument said defendant, Close, reserved the right to control and supervise the making' and manner of making such changes and repairs, and to determine whether same should be .made; that defendant company under said agreement did make changes and repairs in the interior of said building and on said elevator, and the machinery connected therewith, for the purpose of carrying passengers, all of which was' done with the right and authority of defendant, Close, to enter the building and supervise and control the making of the same, which he did; that defendant, Close, received rental for said premises by reason of the said lease and said changes and of the use of said elevator for carrying passengers with knowledge of the uses to which they were put.
    She further alleges that at the time of said lease, there were inherent defects in the elevator, its foundation and various parts, to-wit: a structural weakness and decay rendering the occupation of the premises and the use of said elevator dangerous, all of which were known to Close, or could have been known by him in the exercise of ordinary care, and that they should have been known by him and were not known to the lessee; that after said lease was executed, said company, with the knowledge and authority of Close, rented to the Home Guards of America, and other organizations," an upper floor of the said premises with the right to said associations and their members and guests to use the passageways, stairways and elevator as means of access and egress. That said upper floor was altered by said construction company with consent, and by authority, of said Close, so as to fit it up as a hall where persons were invited and permitted to assemble for entertainment, amusement and instruction; that from said hall there were two doors only, one leading to a stairway and one to said elevator; that said defendants did not, before permitting said hall and elevator to be used for the purposes described, have the same inspected by proper authorities and a certificate issued certifying that said halls were provided with means and properly arranged for the speedy and safe egress of persons there assembled; that plaintiff had no knowledge that said certificate had1 not been procured and believed that it had been; that defendants procured an architect to prepare the plans for said hall and fitted the same up for the assembling of people and wrongfully and unlawfully allowed and kept said elevator in an old, rotten, ruinous and defective condition, without taking ordinary care or making suitable provision for the safety of, or making examination of, or keeping in sound condition, the foundation and other parts of said elevator, but' wrongfully and negligently furnished and permitted the same as a means of ingress and egress from said hall; that on the evening of said day plaintiff attended an entertainment in said room on the third floor of said building, the said elevator being then operated by an agent of said company with the knowledge of said Close; that plaintiff, with a •number of other persons, entered said elevator for the purpose of being conveyed to the first floor of said building; that after plaintiff so entered the elevator fell to the basement with great force and violence by reason of old, rotten and worn, parts of the elevator and its attachments and foundations giving away and the breaking of the metal parts thereof, and thereby received injuries complained of; that defendants were negligent in allowing and permitting said elevator and foundations to be in the old, ruinous," rotten and insecure condition as stated, so as to constitute a menace and danger to persons going on said elevator and to be and constitute a nuisance in said building.
    Defendant company filed no pleading in the case, and Close filed an answer, in which he admits the execution of the lease and that he was the owner of the premises and received rental for the same; that the building was divided into floors and rooms with passageways and stairways used as means of access and egress; that there was an elevator in said building which on said day was operated by the agents of the said company, and that on said day there was an accident; said elevator suddenly fell when the plaintiff and others were on the same, but says that he has no personal knowledge with respect to the circumstances of said accident and had no knowledge that the elevator was, or had been, used in any way by said company. He admits that certain changes in front and interior of the building were made by the company, but denies that he knew of any changes until after the day of the accident, except changes in front and on the first floor, not affecting the elevator, and denies that he had authority or right to enter the building and supervise and control the making of changes, or any of them, and denies that he did supervise and control the same, or any of them, and that the said company was from and after the lease in exclusive possession and control of the premises; that before and at the time of the lease there were not to his knowledge any defects in or upon said premises or building, or any part thereof, and that the company, defendant, had full opportunity to know the actuál condition of the building, including the elevator, from the time of the lease; he further alleges that he had no knowledge of the presence of the plaintiff on the premises, or of the use by said lodges or any part thereof, and denies that she was there by his invitation or permission.
    He further says that by the terms of the lease he parted with entire control and possession of said premises and building, and each and every part thereof, including said elevator to the said defendant company, and that thereafter he exercised no acts of ownership over, or possession or control thereof, and he denies the other allegations of the petition.
    The plaintiff replied, denying the allegations of want of knowledge and control in the answer of Close.
    On the trial of the cause the court on motion of defendant at the conclusion of plaintiff’s evidence directed a verdict for defendant.
    The circuit court affirmed the judgment entered on the verdict and this proceeding is brought to reverse the judgments below.
    
      Mr. Orville S. Brumback, for plaintiff in error.
    Mr. Close’s statutory liability is imposed by Section 4238-1, Revised Statutes. His common law liability is determined by Burdick v. Cheadle, 26 Ohio St., 393; Shinkle v. Birney, 68 Ohio St., 328; Steefel v. Rothschild, 179 N. Y., 273; Langabaugh v. Anderson, 68 Ohio St., 131.
    The coaster company, of course, could make such repairs as Mr. Close would consent to, but they had to be made under the supervision of Close’s agent, Wachter. On the other hand, there is no restriction whatever upon Close’s right to repair, nor is there any control by the coaster company over his mode of making repairs. Close, therefore, could make any repairs he chose, whenever he chose, while 'the coaster company could not do so. It follows that the duty to repair was not impliedly transferred, to the coaster company, but by the express terms of the contract was retained by Mr. Close the same as though there had been no lease. Under such a contract the tenant’s use could never be hostile to, or exclusive of, the continued oversight and control of Mr. Close, and his relation to the premises in respect to interior repairs was the same as that of a landlord in the case of a common passageway in a tenement house. Jones on Landlord and Tenant, Sec. 614; Mueller v. Busch, 11 C. C., N.S., 353; Edwards v. Rissler, 26 C. C., 428, 69 Ohio St., 572; Domenicis v. Fleisher, 195 Mass., 281; Bogendoerfer v. Jacobs, 97 N. Y. App, 355; Weinberger v. Kratzenstein, 71 N. Y. App., 155.
    The leading Ohio case holding the landlord liable where he retains control over premises leased, and the case that should rule this case is Shindlebeck v. Moon, 32 Ohio St., 267; Burner v. Higman & Skinner, 127 Ia, 585.
    The further liability is imposed upon Mr. Close because of having continued to lease premises upon which he knew there was a nuisance, after he knew that strangers would be invited there. 18 Am. & Eng. Ency. Law (2 ed.), 244; 2 Shearman & Redfield on Negligence, Sec. 711; 2 Cooley on Torts (2 ed), 1283; Delay v. Savage, 145 Mass., 41; Joyce on Nuisances, Secs. 2, 13, 19, 461, 462, 464; Tomle v. Hampton, 129 Ill., 379; Helwig v. Jordan, 53 Ind, 23; Nugent v. Railroad Co., 80 Me., 62; 24 Cyc., 1125; Timlin v. Oil Co., 126 N. Y., 525; Wunder v. McLean, 134 Pa. St., 334; Railroad Co. v. Oxtoby, 45 Colo., 214; Ingwersen v. Rankin, 47 N. J. L., 18.
    The common law cases well establish the doctrine that “where the landlord .lets premises in a ruinous condition” (nuisance), he is liable to strangers. Nelson v. Brewery Co., L. R., 2 C. P. Div., 311; Saltonstall v. Banker, 8 Gray, 197; Rich v. Basterfield, 4 C. B., 783; Rex v. Pedly, 1 Ad. & El., 822; Todd v. Flight, 9 C. B., N. S., 377; Martin v. Pettit, 117 N. Y., 118; 2 Wood on Landlord and Tenant (2 ed.), 536; Glycerine Co. v. Mfg Co., 60 Ohio St., 560; 2 Underhill on Landlord and Tenant, 792; City v. Bristor, 76 Ohio St., 293.
    As we have seen, the trial court ruled, and the circuit court affirmed the decision, that the plaintiff could not recover against Mr. Close unless it was shown that he had actual knowledge of the rotten condition of the elevator foundation. The authorities already quoted clearly indicate that Close, both under the statute and the common law, was under the affirmative duty to have the premises he rented free from nuisance, and is as much chargeable by implied knowledge as by actual knowledge of the fact that the elevator constituted a nuisance upon his premises. Patterson v. Brewing Co., 16 S. Dak., 43; Jones on Landlord and Tenant, Sec. 599; Edwards v. Railroad Co., 98 N. Y., 254; Dollard 
      v. Roberts, 130 N. Y., 273; Camp v. Wood, 76 N. Y., 92; Wilcox v. Hines, 100 Tenn., 538, 41 L. R. A., 278.
    
      Messrs. King, Tracy, Chapman & Welles, for defendants in error.
    It is claimed that Mr. Close retained control over the repairing of the premises, and is, therefore, liable at common law.
    The lease, far from being silent on the subject of repairs, in express terms imposed upon the coaster construction company the duty of repairing the premises. Gilchrist v. Weil, 10 Dec., 687, 52 Ohio St., 677; Boardman v. Howard, 90 Minn., 273; Darlington v. DeWald, 194 Pa. St., 305; Jaques v. Gould, 4 Cush., 384; Sturges v. Knapp, 31 Vt., 1.
    Furthermore, even if this provision had not been in the lease, the law would imply an agreement to repair on the part of the lessee, unless the express provisions of the lease showed the parties’ contrary intention. Burdick v. Cheadle, 26 Ohio St., 393; McNeal v. Emery, 8 W. L. B., 265; Meyers v. Hussenbuth, 65 N. Y. Supp., 1026; Libbey v. Tolford, 48 Me., 316.
    It is claimed that the premises were devoted to a public use and that, therefore, Mr. Close is liable at common law if he failed to exercise reasonable care to ascertain the condition of the premises at the time he leased them. This claim is unfounded both in fact and in law.
    The facts disclose that the premises in this case were not leased for any public purpose; that at the time the lease was executed, neither the lessor nor the lessee knew for what use the floors above the ground floor would be put. On the facts, then, it can not' be said that Mr. Close leased the premises for a public use.
    The use of the premises was less public than that of the storeroom involved in the case of Burdick v. Cheadle, 26 Ohio St., 393, where a customer on the premises was held not entitled to recover against the owner by reason of the falling of shelving defectively installed by the owner.
    No claim can be made in the-case at bar that there is any evidence or offer of evidence tendinto show that Mr. Close, at the time he leased the premises to the coaster construction company, had actual knowledge that the elevator was in a defective condition, and since this is so, it follows that under the law of this state, as settled in Shinkle v. Birney, 68 Ohio St., 328, the plaintiff is not entitled to recover upon the theory that Mr. Close was bound at his peril to know the condition of his premises before he leased them. Dyer v. Robinson, 110 Fed. Rep., 99; Moulliet v. Anderson, 29 C. C., 723; Flaherty v. Nieman, 125 Ia., 546; Clyne v. Helmes, 61 N. J. L., 358.
    It is claimed that at the time the premises were leased there was a nuisance thereon, which nuisance caused plaintiffs injuries, and that by reason thereof Mr. Close,. as the owner of the premises, is liable, whether or not he had knowledge of the existence of the nuisance at the date of the lease. We take issue with this claim on several grounds.
    Was there a nuisance on the premises at the time of the letting? Burdick v. Cheadle, 26 Ohio St., 393.
    
      The evidence is undisputed that the elevator, by the fall of which the plaintiff was injured, had fallen before during the occupancy of the premises by The United States Coaster Construction Co. as lessee, and that that company had employed The Ricard Boiler & Engine Co. to'repair the elevator, and that it was after it had been so repaired by the Ricard company that plaintiff sustained her injuries. The proximate cause of the plaintiff’s injuries was, therefore, the act of the coaster construction company in improperly repairing the elevator, and in making use of it while so improperly repaired. Griffin v. Light & Power Co., 55 L. R. A., 318; Carter v. Towne, 103 Mass., 507.
    We deny that the owner of premises is liable to one injured while on the premises as a sub-tenant, invitee or licensee of the tenant, whether such injuries be caused by a nuisance existing at the time of the letting or not. Dyer v. Robinson, 110 Fed. Rep., 99; Burdick v. Cheadle, 26 Ohio St., 393.
    The case of Burdick v. Cheadle, supra, has never been criticized or modified by any later decision of the court, and is approved and followed in the case of Langabaugh v. Anderson, 68 Ohio St., 131. Other decisions to the same effect in this and other states are the following: Blake v. Harris, 12 O. C. D., 535; McNeal v. Emery’s Sons, 8 W. L. B., 265; Kuhn v. Remmler, 16 W. L. B., 366, 23 W. L. B., 139; Borggard v. Gale, 205 Ill., 511; Davis v. Smith, 26 R. I., 129; Davidson v. Fischer,. 11 Colo., 583; Fellows v. Gilhuber, 82 Wis., 639; Mellen v. Morrill, 126 Mass., 545; Gately v. Campbell, 124 Cal., 520; Bowe v. Hunking, 135 Mass., 380; Jordan v. Sullivan, 181 Mass., 348; 
      Steamship Co. v. Hamilton, 112 Ga., 901; Phelan v. Fitzpatrick, 188 Mass., 237; King v. Creekmore, 117 Ky., 172; Anderson v. Hayes, 101 Wis., 538; Hilsenbeck v. Guhring, 131 N. Y., 674; Henson v. Beckwith, 20 R. I., 165; Jaffe v. Harteau, 56 N. Y., 398; McKenzie v. Cheetham, 83 Me., 543; Robbins v. Jones, 15 C. B., N. S., 220; Harpel v. Fall, 65 N. W. Rep., 913.
    It is claimed that Mr. Close is liable to the plaintiff because it is said the provisions of Section 4238-1, Revised Statutes (Section 12578, General Code), were violated.
    It is well established in this state that unless the violation of a statute is the proximate cause of the injuries complained of by plaintiff, no cause of action arises because of such violation, and this is true, even where the statute itself provides that one injured by reason of the violation thereof may recover damages therefor. Jacobs v. Fuller, 67 Ohio St., 70; Railway Co. v. Liidtke, 69 Ohio St., 384; Pennsylvania Co. v. Rothgeb, 32 Ohio St., 66; Sharp v. Cincinnati, 26 C. C., 59; Railroad Co. v. McPeek, 16 C. C., 87.
    In the third place it will be noted that the statute in express terms imposes a pena^r upon the person who “being the owner or having control” of a structure of the character described in the statute, fails to comply with the terms of the statute, and by the undisputed evidence the hall at which the meeting of the Home Guards was held on the night of plaintiff’s injury was under the- control of the Home Guards under their lease from the coaster construction compan3¡\ It is admitted that the plaintiff was a member of Lincoln Home 129 of the Home Guards which held this lease, and we submit,' therefore, that the plaintiff was in pari delicto with the coaster construction company, and hence can not recover even as against that company because of a wrong in which she 'participated. Railway Co. v. Methven, 21 Ohio St., 586; Wallace v. Cannon, 38 Ga., 199; Young v. Railway Co., 100 Ia., 357; Broschart v. Tuttle, 59 Conn., 1; Newcomb v. Boston, 146 Mass., 596; Gregg v. Wyman, 4 Cush., 322; Way v. Foster, 1 Allen, 408; Woodman v. Hubbard, 25 N. H., 67; Phalen v. Clark, 19 Conn., 421; Bosworth v. Swansey, 10 Metc., 363; Railroad Co. v. Lea, 20 Kans., 353; Perkins v. Railroad Co., 29 Me., 307; Jones v. Andover, 10 Allen, 18.
   Johnson, J.

A lessor of a building is not liable to the lessee or others lawfully on the premises, for its condition, in the absence of actual or constructive concealment, or of any agreement, or of the violation of a duty imposed by statute. Shinkle v. Birney, 68 Ohio St., 328; Burdick v. Cheadle, 26 Ohio St., 393; Shindelbeck v. Moon, 32 Ohio St., 267.

If there is any liability on the part of the landlord, Close, in this case, it must arise out of the obligations imposed on him under the leasing contract, or on account of some duty created by statute.

The lease in this case was in the usual form with covenant of lessee, to deliver up at end of term in “as good order and condition as same now are or may be put in, etc.,” “and not to assign this lease or make or suffer to be made any alterations in said premises without the consent of said party of the first part, his agents, heirs or assigns first obtained in writing for that purpose.”

A supplemental agreement was then made by the parties whereby Close agreed to replace broken joists and paint the front, and then provides that he “permits said second party to sublet any or all parts of said building,” and further provides: “Permission is also granted said second party to make changes in the interior and front of said building under the direction and supervision of architect H. W. Wachter to suit their business and at expense of said second parties.”

So that we have first, the provision in the original lease, that no alterations shall be made without the written consent of lessor, and then after-wards, lessor gives the written consent. It is a grant oj permission to make, changes at their expense, and the lessor provides that the changes must be made under the direction and supervision 'of an architect, appointed and named by the lessor himself, in the clause making the grant.

Thereafter the changes were made, the second floor fitted up for a clothing store, the third floor for the lodge assembly room and the elevator arranged to be used to carry passengers to this assembly room or meeting place.

On the trial plaintiff offered testimony that the plans for the changes were submitted to and approved by Wachter; that Wachter was in and about the building during the progress of the work and saw and approved of what was being done, and made suggestions as to the changes; that he was informed of the purpose to use the third floor as a lodge room, and to use the elevator in connection with the lodge room; that the elevator opened into the anteroom of the lodge room; that Close himself visited the building and inspected it after the changes and rode on the elevator several times; that Close was informed that the rooms were to be changed into one assembly room for a lodge room and that the elevator was to be used to carry as passengers, persons going to and from this meeting place; and that Close stated he had no objection except that he wanted all to be done under Wachter’s direction and that Wachter was his representative.

Plaintiff further offered testimony tending to show that the wood foundation for the elevator was rotten; that the entire elevator structure was decayed and wholly unfit for use and was extremely dangerous; that Close had owned the building for about twenty (20) years and had never repaired the elevator nor inspected it.

The trial court refused to admit the testimony thus tendered, and directed a verdict for defendant at the close of plaintiff’s evidence.

We think the court erred in these holdings. The testimony was competent as showing Close’s control. It does not vary the writing. It explains it and shows what was done under it.

The effect of the grant of permission to make the changes under the direction and supervision of the architect of Close was to leave him in partial control of the premises. No change could be made by the lessee except under such direction and supervision. So that it presents an entirely different case from one where a landlord has demised the entire premises with full control to his tenant for the term of the lease.

In this case whatever obligation or liability for injury to persons rightfully on the premises is imposed by law on the tenant, rests equally on the landlord, so far as it results from any change made under the conditional grant of permission by Close.

The changes made pursuant to this permission were stated by the witness Ditlor as follows: “The third floor was fitted up for a lodge room and the second floor for a clothing store, the elevator was fitted up for passengers and furnaces were put in to heat the building.”

Section 4238-1, Revised Statutes of Ohio, provides : “It shall be unlawful for any person, society, firm, agent, representative of any private or corporate authority or society, or any committee, commission, or board acting under any authority whatsoever, to erect or cause to be erected, or for any architect, engineer, builder or other person to furnish any plan, description or specification for the purpose of erecting in the state of Ohio any structure, room or place where persons are invited, expected or permitted to assemble; or for the purpose of entertainment, judgment, amusement, instruction, betterment, treatment, or care, or to make any addition to or alteration therein, which shall in construction, arrangement, or means of egress be dangerous to the health or lives of persons so assembled.”

It is clear that the statute applies to this cause. Here there was an alteration of the premises participated in by Close, and under the direction and supervision of his. appointed agent, for the purpose of creating the “room” or “place” where persons were invited, expected and permitted to assemble for the purposes stated in the act. And the arrangement and means of egress provided was dangerous to the health and lives of persons so assembled.'

The testimony tendered shóws that the elevator opened into the anteroom of the lodge; that it was intended to be the means of egress generally used by the members; and that this elevator was wholly unfit and unsafe.

Counsel for defendant, Close, contends that there was no testimony introduced or offered tending to show that Close had anything to do with the fitting up of the elevator as á passenger elevator. That may be true. But that is where his fault lies. He knew that the re-arrangement of the building and the preparing of the lodge room required and contemplated the use of the elevator for .passengers. And having reserved to himself and his agent the direction and supervision of the changes referred to and having exercised that right, he was bound to see that safe means of egress were provided for the-new use which was to result from the change. That is the express object and requirement of this statute.

The fact that Close had been for many years the owner of the building and that he never had the elevator inspected, accentuated his duty to see that it was made safe when it was being altered so as to carry passengers to a place such. as described.

For the errors referred to the judgments of the courts below will be reversed and cause remanded for further proceedings according to law.

Judgments reversed.

Spear, C. Price and Donahue, JJ., concur.  