Glynn v. Lyceum Theater Co.

• Decision Date: 25 July 1913
• Citation: 87 A. 796,87 Conn. 237
• Court: Connecticut Supreme Court
• Parties: GLYNN et al. v. LYCEUM THEATER CO.

87 A. 796

87 Conn. 237

GLYNN et al.

v. LYCEUM THEATER CO.

Supreme Court of Errors of Connecticut.

July 25, 1913.

Appeal from Superior Court, New London County; Howard J. Curtis, Judge.

Action for personal injuries by Almeda Glynn and another against the Lyceum Theater Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

The plaintiffs offered evidence from which the jury might reasonably have found the following facts: The defendants leased its theater in New London to the Jackson Amusement Company, a Connecticut corporation, for a period of three years from July 1, 1908; and this company from this date continued in the possession and exclusive control of these premises under this lease up to and including January 15, 1910. On this date the plaintiffs purchased from this company two tickets for an entertainment entitling them to two seats in the front row on the balcony. The plaintiffs had occupied their seats for 15 or 20 minutes when, without warning to them, the seat occupied by Mrs. Glynn collapsed, the bottom falling, causing her to fall to the floor and suffer the injuries sued for. No evidence was offered that this seat had ever fallen or been out of order prior to this accident.

Evidence was offered that on certain occasions during the year previous many other seats in the balcony had collapsed so as to permit the bottom of the seat to fall. No evidence was offered that these instances, or the defect in these seats, had been brought to the notice of the defendant, or that any request or demand had been made of it to renew or repair these seats, or any seats; but there was evidence that these repairs had been made by the Jackson Company, lessee.

One of the covenants of the lease by the defendant to the Jackson Company provided: "That it [the Lyceum Company, defendant herein] will maintain and keep in good condition the front of the interior of the theater; that is, the chairs, walls, ceilings, heating plant, and its connections, gas and electric fixtures and wiring, for the term of said lease." The defendant lessor never in person fulfilled this covenant of the lease.

George C. Morgan, of New London, for appellants.

Charles B. Whittlesey, of New London, for appellee.

WHEELER, J. (after stating the facts as above). The lessor, the Lyceum Company, was, under its covenant to repair, bound to maintain the seats of its theater in reasonable repair. The lessee, the Jackson Company, could enforce this covenant, but, since it is merely a covenant to repair premises in control of the lessee, the liability of the lessor thereon could arise only after notice to or the presence of facts from which the law would imply knowledge of the defect by the lessor. Miles v. Janvrin, 196 Mass. 431, 438, 82 N. E. 708, 13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575.

When the lessor has had such notice or knowledge and thereafter fails to make the necessary repairs, or makes them in a negligent manner, he is liable for damage resulting to the lessee as a consequence of his negligence. The lessor's liability rests upon his negligent failure to perform his contractual duty, or his performance of that duty in a negligent manner. His liability in tort is based upon his negligent breach of a duty owed his lessee through the contract of lease. Dustin v. Curtis, 74 N. H. 266, 269, 67 Atl. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169; Thompson v. Clemens, 96 Md. 196, 209, 53 Atl. 919, 60 L. R. A. 580; Frank v. Mandel, 76 App. Div. 416, 78 N. Y. Supp. 855; Reynolds v. Van Beuren, 153 N. Y. 125, 49 N. E. 763, 42 L. R. A. 129. Breach of duty by the lessor cannot be predicated upon mere failure to perform. Marley v. Wheelwright 172 Mass. 532, 533, 52 N. E. 1066; Hutchinson v. Cummings, 156 Mass. 329, 330, 31 N. E. 127. It consists in a negligent performance of the contract duty...