OPINION
By SKEEL, J.
The plaintiff brings this appeal on questions of law from a judgment entered for the defendant in the Common Pleas Court.
The plaintiff was a tenant of the defendants, occupying one-half of a duplex house located at 2587 Colchester Road, Cleveland Heights, Ohio. The other half of the house was rented to other tenants. Each tenant had his own front and rear entrance on the first floor level and across the rear of the house on the second floor level was an uncovered porch. The only means of getting on to this porch was from two door[2]*2ways, one of which lead from each of the rear bed rooms of each of the suites. There was a railing all the way. around the outside edge of the porch but there was no dividing rail between that part of the porch which was behind the suite of each tenant.
On September 13, 1944, plaintiff stepped out on that part of the porch which was behind the rear bedroom of her suite, to shake out a bath rug, and while leaning against the rail it gave way, causing her to fall to the ground and she was thereby injured. The plaintiff claims that the defendants negligently maintained said railing in a dangerous condition and bad state of repair, which negligence was the proximate cause of her fall and resulting injuries.
At the conclusion of plaintiff’s case a motion was made by defendants for a directed verdict on the ground that defendants were out of possession and control of the property and therefore did not owe any duty to plaintiff with regard to keeping the porch in a reasonably safe condition. The court granted the motion and entered judgment for the defendant.
It is the claim of the plaintiff that the porch from which she fell remained in the possession of defendants and was intended for the use of both tenants and their invitees and therefore defendants landlords owed the duty of ordinary care in keeping the porch and railing in a reasonably safe condition and that the breach of that duty was the proximate cause of the’ plaintiff’s injuries.
In considering the evidence to determine whether there is any support whatever for plaintiff’s contention, we must resolve every doubt in plaintiff’s favor. The question to be decided, stated in its simplest form, is — where a landlord owns a duplex house with an open porch extending across the full width of the rear thereof at the second floor level, which porch is accessible only through two doorways, one from the rear bedroom of each suite, do the tenants of each suite have the right to the joint use of the entire porch with each other, where there was no evidence that anything was • said • about the porch when either of the suites was rented, and under such circumstances could it be said that the landlord retained possession of such porch for the joint use and benefit of both tenants?
It is freely admitted that if there had been a dividing rail in the middle of the porch between the respective suites, there would be no question but that each tenant would be put in exclusive possession of the part of the porch behind his suite as completely as any other room of the demised premises. Is the absence of such dividing rail, evidence of the lardlords intention to retain such possession? We think not. Our conclu[3]*3sion on that subject is supported by both the plaintiff and her witnesses, Mr. and Mrs. Bowler. On cross-examination Mrs. Bowler in telling of examining the„ railing when asked what part of the railing she examined, said “just our side.” Mr. Bowler when on cross-examination in telling about putting a “glider” belonging to his father and mother on the back porch, testified as follows:
“Q. So that one side of the glider would extend on to the other side of the porch?
A. Yes sir.”
The plaintiff in telling of her use of the porch to air clothes, said:
“All suits I would put on Mrs. Bowler’s because they had their awning projection or I think it was for their awning, and I would put suits on there like a hanger:”
There is no other conclusion that could be reached from the undisputed evidence in this case except that each tenant was granted the exclusive right to the use of that part of the porch behind his suite by the contract of tenancy.
•Whatever use either tenant made of that part of the porch behind the other tenant’s suite was by the mutual consent of the tenants and not because of any right granted in his contract with the defendant, creating the tenancy.
In the case of Davies v Kelley, 112 Oh St 222, the court at page 228 of the opinion, in distinguishing between parts of the premises which of necessity must be jointly used by tenants and remains in the control of the landlord and those which are not thus necessary for the joint use of the tenants, said:
“True, a mere amicable joint user, not required by the character of the premises or authorized by the landlord, would not bind him; but here a joint user was clearly contemplated by the character of construction, its design for joint user by the several tenants and its maintenance therefor in addition to the necessarily known manner of occupancy and use of that portion of the premises.”
The portion of the premises under discussion in the above case was a porch which was reached by a stairway the use of which was necessary to the enjoyment of all of the tenants on the second floor of the apartment building.
It is suggested by the plaintiff that the fact that the plaintiff introduced testimony that the defendants’ agent caused [4]*4certain repairs to be made to the floor of the porch about a year before the plaintiff’s fall, is some evidence that lie retained possession and control of the porch. There is not one word of testimony in the record that the defendant owed the duty to make repairs or that the plaintiff ever requested repairs to the railing or any other part of the premises. The obligation to repair, however, without more in no way supports the claim that the right of possession has not been completely surrendered to the tenants.
In the case of Ripple v Mahoning National Bank, 143 Oh St 614, the plaintiff, was an employee of a tenant of defendant and as such used one of the private offices rented from de-. fendant. While at his desk he was injured by the fall of a section of plaster from the ceiling. It was claimed by plaintiff th,,at the plaster had been defectively and improperly installed which fact defendant knew or by the exercise of due diligence should have known. It was further claimed that the defendant by its lease with plaintiff’s employer maintained possession and control of said suite of offices for the purpose of making repairs and for cleaning and doing the necessary janitor work. The defendant demurred to the petition which demurrer was sustained by the trial court and final judgment entered for the defendant.
The supreme court on page 616 of the opinion states' the question presented as follows:
“The demurrer presents but a single question of law: Where the owner of a building retains control over a suite of offices therein, leased to a tenant, ‘for the purpose of repairing the same and the doing of daily janitor work’ is such owner liable to an employee of his tenant, who is injured as a result of falling plaster which has been ‘defectively placed and installed on the base of the said ceiling?’
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
By SKEEL, J.
The plaintiff brings this appeal on questions of law from a judgment entered for the defendant in the Common Pleas Court.
The plaintiff was a tenant of the defendants, occupying one-half of a duplex house located at 2587 Colchester Road, Cleveland Heights, Ohio. The other half of the house was rented to other tenants. Each tenant had his own front and rear entrance on the first floor level and across the rear of the house on the second floor level was an uncovered porch. The only means of getting on to this porch was from two door[2]*2ways, one of which lead from each of the rear bed rooms of each of the suites. There was a railing all the way. around the outside edge of the porch but there was no dividing rail between that part of the porch which was behind the suite of each tenant.
On September 13, 1944, plaintiff stepped out on that part of the porch which was behind the rear bedroom of her suite, to shake out a bath rug, and while leaning against the rail it gave way, causing her to fall to the ground and she was thereby injured. The plaintiff claims that the defendants negligently maintained said railing in a dangerous condition and bad state of repair, which negligence was the proximate cause of her fall and resulting injuries.
At the conclusion of plaintiff’s case a motion was made by defendants for a directed verdict on the ground that defendants were out of possession and control of the property and therefore did not owe any duty to plaintiff with regard to keeping the porch in a reasonably safe condition. The court granted the motion and entered judgment for the defendant.
It is the claim of the plaintiff that the porch from which she fell remained in the possession of defendants and was intended for the use of both tenants and their invitees and therefore defendants landlords owed the duty of ordinary care in keeping the porch and railing in a reasonably safe condition and that the breach of that duty was the proximate cause of the’ plaintiff’s injuries.
In considering the evidence to determine whether there is any support whatever for plaintiff’s contention, we must resolve every doubt in plaintiff’s favor. The question to be decided, stated in its simplest form, is — where a landlord owns a duplex house with an open porch extending across the full width of the rear thereof at the second floor level, which porch is accessible only through two doorways, one from the rear bedroom of each suite, do the tenants of each suite have the right to the joint use of the entire porch with each other, where there was no evidence that anything was • said • about the porch when either of the suites was rented, and under such circumstances could it be said that the landlord retained possession of such porch for the joint use and benefit of both tenants?
It is freely admitted that if there had been a dividing rail in the middle of the porch between the respective suites, there would be no question but that each tenant would be put in exclusive possession of the part of the porch behind his suite as completely as any other room of the demised premises. Is the absence of such dividing rail, evidence of the lardlords intention to retain such possession? We think not. Our conclu[3]*3sion on that subject is supported by both the plaintiff and her witnesses, Mr. and Mrs. Bowler. On cross-examination Mrs. Bowler in telling of examining the„ railing when asked what part of the railing she examined, said “just our side.” Mr. Bowler when on cross-examination in telling about putting a “glider” belonging to his father and mother on the back porch, testified as follows:
“Q. So that one side of the glider would extend on to the other side of the porch?
A. Yes sir.”
The plaintiff in telling of her use of the porch to air clothes, said:
“All suits I would put on Mrs. Bowler’s because they had their awning projection or I think it was for their awning, and I would put suits on there like a hanger:”
There is no other conclusion that could be reached from the undisputed evidence in this case except that each tenant was granted the exclusive right to the use of that part of the porch behind his suite by the contract of tenancy.
•Whatever use either tenant made of that part of the porch behind the other tenant’s suite was by the mutual consent of the tenants and not because of any right granted in his contract with the defendant, creating the tenancy.
In the case of Davies v Kelley, 112 Oh St 222, the court at page 228 of the opinion, in distinguishing between parts of the premises which of necessity must be jointly used by tenants and remains in the control of the landlord and those which are not thus necessary for the joint use of the tenants, said:
“True, a mere amicable joint user, not required by the character of the premises or authorized by the landlord, would not bind him; but here a joint user was clearly contemplated by the character of construction, its design for joint user by the several tenants and its maintenance therefor in addition to the necessarily known manner of occupancy and use of that portion of the premises.”
The portion of the premises under discussion in the above case was a porch which was reached by a stairway the use of which was necessary to the enjoyment of all of the tenants on the second floor of the apartment building.
It is suggested by the plaintiff that the fact that the plaintiff introduced testimony that the defendants’ agent caused [4]*4certain repairs to be made to the floor of the porch about a year before the plaintiff’s fall, is some evidence that lie retained possession and control of the porch. There is not one word of testimony in the record that the defendant owed the duty to make repairs or that the plaintiff ever requested repairs to the railing or any other part of the premises. The obligation to repair, however, without more in no way supports the claim that the right of possession has not been completely surrendered to the tenants.
In the case of Ripple v Mahoning National Bank, 143 Oh St 614, the plaintiff, was an employee of a tenant of defendant and as such used one of the private offices rented from de-. fendant. While at his desk he was injured by the fall of a section of plaster from the ceiling. It was claimed by plaintiff th,,at the plaster had been defectively and improperly installed which fact defendant knew or by the exercise of due diligence should have known. It was further claimed that the defendant by its lease with plaintiff’s employer maintained possession and control of said suite of offices for the purpose of making repairs and for cleaning and doing the necessary janitor work. The defendant demurred to the petition which demurrer was sustained by the trial court and final judgment entered for the defendant.
The supreme court on page 616 of the opinion states' the question presented as follows:
“The demurrer presents but a single question of law: Where the owner of a building retains control over a suite of offices therein, leased to a tenant, ‘for the purpose of repairing the same and the doing of daily janitor work’ is such owner liable to an employee of his tenant, who is injured as a result of falling plaster which has been ‘defectively placed and installed on the base of the said ceiling?’
“The plaintiff argues that this case differs from the ordinary landlord and tenant case in that here the landlord of a large office building has retained control over the various suites and private offices located therein, for the purpose of making repairs and the daily cleaning of these suites and offices.”
The syllabus provides:
“The reservation in a lease of a suit of rooms for use as a private office, whereby control thereof is retained only ‘for the purpose of repairing the same and the doing of daily janitor work’ does not render the lessor liable for injuries sustained by [5]*5an employee of the lessee caused by falling plaster, in the absence of authority of the lessor .to exercise control over such premises to the exclusion of any control by the lessee.” (Burdick v Cheadle, 26 Oh St 393; Marqua v Martin, 109 Oh St 56; and Berkowitz v Winston, 128 Oh St 611, approved and followed.)
Judge Hart in a concurring opinion, on pages 621 and 622 says in part:
“It has long been the rule that the landlord is responsible for the safe condition of stairways and areaways used in common by all the tenants of a tenement building, on the theory-that the landlord and not the tenant is in possession and control of these areas. Davies a minor, v Kelley, 112 Oh St 122, 146 N. E. 888; Wilson v Woodruff, 65 Utah 118, 235 P. 368, 43 A. L. R. 1269. But an examination of the authorities indicates that, according to almost universal judicial opinion, this responsibility does not extend to areas within the private offices of the landlord’s tenants.”
ifc * Ifc * !»S
“The basis of the responsibility of the tenant for the condition of the premises is that the contract of letting makes him the real owner and possessor of the premises for the term of the tenancy and makes him, rather than the landlord out of possession, responsible for their condition.”
“The general rule is that, in the absence of warranty on the part of the landlord that the premises are fit for the purpose for which they are let, and in the absence of Concealment or fraud by the landlord as to some defect, structural or otherwise, in the premises, the tenant takes them in whatever condition they may be, thus assuming all risk of personal injury from defects therein, and neither he nor his invitees can hold the landlord liable for personal injuries resulting from such defects.”
In support of the foregoing rule Judge Hart cites many authorities.
It is clear from these authorities that the cases cited by the plaintiff such as Davies v Kelley, supra, involve stairways, hallways and areaways used in common by all tenants of a building and liability is imposed on the theory that the landlord retains possession and control.
[6]*6For the foregoing reasons, the judgment of the Common Pleas Court is affirmed.
MORGAN, J, concurs.
HURD, PJ, dissents.