Groesbeck v. Shelden

Ostrander, J. (after stating the facts). Defendant Shelden’s duty in the premises was not other or different from the duty which Mr. Hudson would have owed, had he, instead of Shelden, demolished the barn. The east half of the large barn, as well as the shed which fell, was on Mr. Hudson’s land, of which his tenant had possession. Suppose that Hudson had done the work. Between himself and his tenant contract relations existed; otherwise, Hudson could have done as he pleased with his own. For mere breach of any contract relation with the tenant, plaintiff cannot complain. If demolition of the shed had amounted to an eviction of his tenant, the remedy would belong to the tenant, whether what Hudson did was called a trespass or something else. Therefore I do not perceive the applicability to the case of decisions, many of which are cited in appellant’s brief, upholding the right of the tenant to damages for injuries to leased premises caused by the landlord or the licensee of the landlord or the tenant. Barman v. Spencer (Ind.) (49 N. E. 9, 44 L. R. A. 815), and Aldag v. Ott, 28 Ind. App. 542 (63 N. E. 480), also cited by appellant, belong to a line of cases in which decision rests upon a different principle. In each of them liability was predicated of an affirmative act of the landlord, who created upon the premises a dangerous situation— dangerous for any one who went upon the premises. After quoting from Aldag v. Ott, supra, the attorney for the appellant says that the same principle was applied in Peerless Manfg. Co. v. Bagley, 126 Mich. [590] 225 (85 N. W. 568, 53 L. R. A. 285, 86 Am. St. Rep. 537), when it will be at once apparent, the decisions being examined, that an entirely different principle was applied. There is another line of decisions, of which Corby v. Hill, 4 C. B. (N. S.) 556, Crane Elevator Co. v. Lippert, 63 Fed. 942 (11 C. C. A. 521), and Ella v. Boyce, 112 Mich. 552 (70 N. W. 1106), are examples, which are relied upon by appellant, which differ little, if any, in principle, from Barman v. Spencer, and Aldag v. Ott, but which also decide that one having a license to do something upon the premises of another may not, as licensee, do what the licensor himself had no right to do. In each of them, the person who created the nuisance was the defendant, and was held liable to the one who was injured. The principle applied in Corby v. Hill, supra, is thus stated by Cockburn, C. J., who said: "It seems to me that the very case from which the learned counsel seeks to distinguish this is the case now before us. The proprietors of the soil held out an allurement whereby the plaintiff was induced to come upon the place in question: they held out this road to all persons having occasion to proceed to the asylum as the means of access thereto. * * * Having, so to speak, dedicated the way to such of the general public as might have occasion to use it for that purpose, and having held it out as a safe and convenient mode of access to the establishment, without any reservation, it was not competent for them to place thereon any obstruction calculated to render the road unsafe, and likely to cause injury to those persons to whom they held it out as a way along which they might safely go. If that be so, a third person could not acquire the right to do so under their license or permission.” See, also, Morrison v. Carpenter, 179 Mich. 207 (146 N. W. 106), in which is applied the familiar rule that, having licensed one to use premises, the owner and licensor cannot thereafter, while the license con [591] tinues, make the premises used by the licensee more dangerous to the user. Bennett v. Railroad Co., 102 U. S. 577. In the case at bar there are no facts raising a duty on the part of Shelden (or Hudson) to Girardin, or to his servant, the plaintiff, to support the roof of the shed. Nothing was done not presumably contemplated by Hudson, Shelden, Girardin, and any and every one else who knew anything about the situation there. If the large barn was demolished, it would remove to that extent the westerly support for the shed which fell. Shelden did not know what Hudson or his tenant would thereafter do with the shed— whether it would be removed or repaired. Hudson and his tenant had not discussed the matter. Assuming that, nevertheless, Shelden having been the active agent in creating the situation, a duty would arise upon his part to discover that situation to any one rightfully using the premises, no breach of such a duty is made out. The condition remaining after the barn was removed was apparent, to plaintiff as well as to any one else who looked at the shed. The shed was not for use, nor was it contemplated by any one that it would be used, as it stood. Whatever of value it had contained had been removed to the tenant’s, and presumably to the owner’s, satisfaction. No trap was set for plaintiff, nor was he deceived or deluded by anything Shelden had done, or failed to do. Nothing could have been told him which his vision did not disclose to him. The principle, therefore, of the cases last mentioned, has no application. Plaintiff was most unfortunate, but it must be held that his injuries resulted from no breach of duty owed to him by Shelden. It is not necessary to discuss the questions of variance, of plaintiff’s assumption of whatever risk there was, or of his contributory negligence. If the testimony of the tenant is believed, plaintiff was told [592] to keep away from the particular portion of the premises. If the testimony of others is believed, plaintiff’s own conduct, after being warned, in using a crowbar under the shed, may have caused the roof to fall upon him. The judgment is affirmed. Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.