Stackhouse v. Close

Decision Date07 March 1911
Docket Number12587
Citation94 N.E. 746,83 Ohio St. 339
PartiesStackhouse v. Close Et Al.
CourtOhio Supreme Court

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 Statutes.

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.

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 had 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 actual 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...

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  • Gemme v. Osterhaus
    • United States
    • Missouri Court of Appeals
    • May 3, 1927
    ...168 Mo.App. 414; Graff v. Brewery Co., 130 Mo.App. 618; Kilroy v. St. Louis, 242 Mo. 79; Dyer v. Robinson, 110 F. 99; Stockhous v. Close, 83 Ohio St. 339, 94 N.E. 746; Dawson v. Kitch, 156 Ill.App. 185. (c) And there no implied warranty in a contract of letting, that the premises are suitab......

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