Dyer v. Robinson

• Decision Date: 13 April 1899
• Citation: 110 F. 99
• Parties: DYER v. ROBINSON et al.
• Court: U.S. District Court — Southern District of Ohio

110 F. 99

DYER v. ROBINSON et al.

United States Circuit Court, S.D. Ohio, Western Division.

April 13, 1899

Thos L. Michie, for plaintiff.

John R Sayler, Louis Kramer, Charles Evans, and John W. Warrington for lessors.

Jones &amp James, for lessees.

THOMPSON District Judge (orally).

I have had occasion since the last trial of this cause to make a careful examination of the questions involved, and, in view of the conclusions I have reached, it is not necessary to take up time in further argument. I may as well dispose of these motions now.

The ceiling and dome of the opera house fell, injuring the plaintiff, and he charges that his injuries were caused by the negligence of the defendants, the lessors and the lessees, in permitting this building to become unsafe and remain in that condition until the disaster resulted. In determining the question of negligence, it is necessary, first, to ascertain what duty the defendants owed to the plaintiff, the failure to perform which constituted the negligence.

As to the lessors: What duty were they under to the plaintiff to keep and maintain this building in a condition of safety? If they were under no duty, if they owed him no duty in that respect, they are not liable for the consequences of the breaking down of the ceiling and the falling of the dome of this building. Ordinarily, when the owner of buildings whether devoted to public or to private uses, lets them to another, and surrenders possession and control, he is not responsible to the tenant, or to those who may come upon the premises through the invitation of the tenant, for any unsafe condition thereof, whether it existed prior to and at the time of the letting or arose afterwards. If Brady & Stair desired to obtain a lease of this opera house building, it was there for their inspection and examination; and if they were satisfied with it, and took a lease, and the control and possession of it was delivered to them, the lessors, the Robinsons, are under no liability to them for the unsafe condition of the building, because the rule of caveat emptor applies in such case. They take it as they find it; and if there be defects, if it be in an unsafe condition, and they, or those in privity with them, suffer injury in consequence thereof, they have no claim upon the lessors, because it is their duty to ascertain its condition, and they take it in the condition in which they find it. It is there for their inspection. They have the opportunity to judge for themselves whether it is in a condition to be useful to them, and if it turns out that there is anything wrong with it, if they have made a bad bargain, they must abide it, unless they have been misled, defrauded, or deceived. That presents another question. The lessors' liability for any unsafe condition of the property at the time of the transfer ends when they turn the property over, unless there be some latent hidden defect of which the lessors know and the lessees do not know, nor by reasonable inspection and examination at the time could know,-- something so hidden as not to be open to their observation; not to be open to any examination which they would be required to make, or which any one would be required to make under the circumstances. If the lessors, knowing the defect, conceal it,-- if they practice a deceit upon the lessees,-- they are responsible; but some of the authorities hold that in cases of fraud and deceit the fraud and deceit must be active; that there must be a purpose and intention to deceive, to mislead, to misrepresent. I prefer, however, to take the broad ground, which I think the authorities sustain, that in such case a duty is cast upon the lessors to disclose the defect, and if they fail to do so they are liable for injurious consequences. Suppose the Robinsons at the time of the letting knew that the end of the truss had rotted so that any any moment it might fall down, as it did do, and failed to disclose that fact to the lessees, contemplating, as they must have done, just such a disaster as occurred; would not they have been liable for the injuries caused by the disaster? In such a situation the law would impose a duty upon them to disclose the fact, and it would not be necessary to show active misrepresentation and concealment to establish their liability. But, when the disclosure is made, then the lessees take up the burden, and it is for them to put the premises in safe condition if they propose to invite people to come there. At the former trial there were citations of authority, and a line of cases relied on, which I want now to distinguish, lest counsel may think I have overlooked them. I have been talking of the duty of the lessors and the lessees to...