Roberts v. Fulton.

agreed with the lessee to construct therein cornices, shelvings and fixtures, in a secure, safe, convenient and proper manner for the sale of dry goods and groceries, and to keep the premises in good order. The fixtures put up under the agreement were unsafe and insecure from the want of sufficient fastening to the walls of the building-all of which was known to defendant, who, on request of the lessee, refused and neglected to repair. Afterward, and while the room and fixtures were in the possession of the lessee, the shelvings fell and injured the plaintiff, who was, at the time, in the storeroom as a customer of the lessee. Held: The facts stated do not constitute a cause of action against the defendant and in favor of the plaintiff."

To the same effect is the rule laid down in the case of Shindelbeck v. Mocn, 32 Ohio St. 264 [30 Am. Rep. 584].

These cases were approved by the Supreme Court in the case of Stackhouse v. Close, 83 Ohio St. 339 [94 N. E. Rep. 746]; the court, Johnson, J., on page 351, uses this language:

"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."

The circuit court of this county, the predecessor of this court, in the case of Schradski v. Butler, 22 Dec. 701 (9 0. L. R. 127), decided April 26, 1913, affirmed the judgment of the court of common pleas, upon the authority of the opinion announced by the trial court on a motion for new trial.

But it is contended by counsel for defendant in error that the case of Stackhouse v. Close, supra, holds that the owner of premises is liable in a case similar to the one at bar. The case of Stackhouse v. Close is one in which Close, the owner, had leased the entire premises to the United States Coaster Construction Company, which company had sublet part of the premises for lodge purposes, and the plaintiff in the case, Mrs. Stackhouse, was injured in an elevator while going to the lodge in the building.

We think that case can be distinguished from the case at bar

Hamilton County Appeals.

in that Mrs. Stackhouse was a member of the public, a third person, while Mrs. Fulton was not a member of the general public, but was holding under Bolger as a sub-lessee. Furthermore, in that case it was held that because the landlord reserved the control of the elevator and the right to make all repairs, and stipulated that no alterations or repairs could be made by the lessee without the consent of the owner, the owner thereby rendered himself liable jointly with the tenant or lessee, under the provisions of Sec. 4238-1 R. S., which provides that:

"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 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-"

and the Supreme Court held that the owner, by requiring no alterations, changes or repairs to be made without his consent or supervision, thereby retained such control over the building, and especially the elevator, as rendered him liable to third persons who had occasion to resort to the building for any purposes whatsoever.

In the case of Burdick v. Cheadle, supra, at page 397, the court says:

"The general rule of law undoubtedly is, that persons who claim damages on the account that they were invited into a dangerous place, in which they received injuries, must seek their remedy against the person who invited them. There is nothing in the relation of landlord and tenant which changes this rule."

Applying this rule to Mrs. Fulton, under the facts disclosed by the record, it is apparent that she was a tenant of Bolger, in the building, not through any arrangement or agreement with the plaintiffs in error; she was invited and permitted to

Roberts v. Fulton.

be there solely as the tenant of Bolger, and for any damages which she may claim on account of injuries received in the building she must seek for a remedy against the person who invited here there-Bolger.

It is true that the Supreme Court in this case of Burdick v. Cheadle has applied a different rule to third persons, the public generally, for it provides that:

"If they (the premises) be unsafe or unfit, it is the duty of the tenant to make them safe or to fit them for the intended use; and the landlord may reasonably expect that the tenant will do so."

And on page 396 the court says:

"But in case a landlord undertakes with his tenant to keep the premises in repair, having thus reserved the control to the extent necessary for making repairs, his duty to the public in relation to the property is not affected by the lease, and he remains responsible, under the doctrine of the above maxim, for defects arising from the want of repairs during the continuance of the lease.'

The maxim above referred to is the well known one: "sic utere tuo ut alierum non laedas." But this maxim applies, in the case of landlord and tenant, to third persons who are strangers and not in the premises on invitation of the landlord.

In Jones, Land. & Ten. Sec. 592, this principle is stated:

"It may be stated as a general rule that a landlord, who has covenanted to repair, is not liable in tort for personal injuries resulting from the want of repair," citing numerous cases in support thereof, among others Hanson v. Cruse, 155 Ind. 176, and then proceeds: "Such injuries are too remote to be recovered as damages for the breach of contract, and the duties arising from the relation of landlord and tenant are not increased by such a contract in respect to the duty of the landlord to provide for the personal safety of the tenant."

And again, in the same section, the author says:

"Ordinary damages for breach of a general covenant to keep the premises in repair are the expenses of repair and the loss of the premises while the party contracting was in default."

Hamilton County Appeals.

rule:

Tiffany, Land. & Ten. Sec. 87, p. 592 (10), lays down this

"A question of difficulty has arisen in connection with a landlord's covenant to repair, as to whether the tenant can recover, as against the landlord, for an injury to his person or to his property on the premises, which would not have occurred had the landlord complied with his covenant. Such injuries resulting not directly from a breach of the contract but from physical conditions existing apart from the contract which the contract merely undertook to eliminate can not well be regarded as a proximate result of the breach of the contract within the contemplation of the parties at the time of the making thereof. To allow a recovery for such injuries is to allow a recovery as for tort on account of a breach of contract. As has been remarked, there is no more reason for allowing such a recovery against a landlord than against any other person, a carpenter or contractor, for instance, who fails to carry out his contract to repair the premises." Citing Tuttle v. Manufacturing Co. 145 Mass. 169 [13 N. E. Rep. 465].

There will be found cases which hold that a landlord who has leased the entire premises and has covenanted to make repairs is liable to third persons-the public-but these authorities are few and far between, and the great weight of authority holds the contrary rule.

In the case of Schradski v. Butler, Butler rented the premises to the sister of Mrs. Schradski, who was a member of the household. Butler promised to repair, failed to do so, and as a result of the failure, Mrs. Schradski was very severely injured. The common pleas court held in that case that the landlord, Butler, was not liable to Mrs. Schradski for the personal injuries sustained.

Without multiplying the authorities, we think that the law of this state is well settled that the owner of propery is not liable where he leased the entire premises to a tenant and agrees to make repairs upon the premises, either to the tenant or subtenants or sub-lessees of the tenant. The mere fact that the landlord agrees to make repairs, does not put him in control of the premises. It is true he would have the right to resort to the

Roberts v. Fulton.

premises for the purpose of making repairs, but that fact does not give him control of the premises any more than he would have control of the premises because he would have a right to resort to the premises for the collection of rent, inspection of the same, or any other lawful purposes. Bolger, in this case, was in entire control of the premises, and Bolger himself could not recover for injuries he might sustain by reason of the defect in the premises resulting from failure of the owner to keep the premises in repair under his agreement, and surely his subtenant or sub-lessee, Mrs. Fulton, would have no higher or better right than her immediate landlord-Bolger.

If the law were not so well settled in this state on this question it might be instructive and useful to consider the decisions in other states. But the court is of the opinion that this case, in all its phases, is controlled by the case of Burdick v. Cheadle, supra, and other cases cited.

For the reasons stated, the judgment below is reversed and the cause remanded for further proceedings.

Jones, E. H. and Jones, O. B., JJ., concur.

COURTS PARTNERSHIP—PRINCIPAL AND AGENT.

[Hamilton (1st) Court of Appeals, February 14, 1916.]

Jones, Jones and Gorman, JJ.

WILLIAM F. PAGEL V. EDWIN K. CREASY ET AL.

1. Judge Having Final Hearing in Common Pleas in County with Two or More Judges may Correct Errors of Law Previously Made. In counties in which the common pleas court is composed of two or more judges, a ruling by any one of the judges on an interlocutory matter is the ruling of the court, and the judge who has the case on final hearing is at liberty to correct errors of law previously made, whether made by himself or by another judge.

2. Contract with Sales Agent to Sell Designated Product at Fixed Price Delivery to be Delayed, Each to Share Equally in Profits and Losses Occasioned thereby Against Public Policy.

A contract entered into by a sales agent of a sugar refining company, whereby he was to sell to the parties of the other part one thousand barrels of sugar at the then market price, the sugar to be resold by said parties upon delivery, which was