E. D. Bassett and E. L. Mitchell, for the plaintiff.

H. Almy and J. C. Ely, for the defendant.

166 STINESS, J. The declaration alleges that the defendant, owner of a building known as the Owen Building, on Dyer street, in the city of Providence, on April 3, 1895, and for s long time prior thereto, knew of a dangerous defect in the construction of the elevator well therein, by leaving a large opening between the elevator and the outer wall; that while the plaintiff's intestate was delivering goods, on said April 3d, to a tenant in the building by his invitation, and while in the exercise of due care, said intestate fell through the opening and was killed.

The defendant demurs to the declaration for lack of material averments; but as these could be supplied by amendment, and as the real question of the case arises in a broader way upon the defendant's plea, to which the plaintiff demurs, we will consider the whole case as it is shown by the pleadings.

The plea sets up the fact that, excepting a small store, the whole building, together with the elevator, was under lease from January 1, 1895, to December 31, 1899, with covenant by the lessee to keep the interior in repair, and that the defendant had no control over the elevator nor the right to make alterations. The case as thus stated raises the question of a landlord's liability to a stranger for the defective condition of premises under lease.

In Joyce v. Martin, 15 R. I. 558, this court recognized three classes of cases of this sort: 1. Where the owner leases premises which are a nuisance, or must, in the nature of things, become so by their use, then, whether in or out of possession, he is liable for injuries resulting from such nuisance; 2. Where premises are let for rent or profit to be used for purposes for which they are not fit or safe, and all this was known or ought to have been known to the lessor, he is also liable for injuries resulting from such use; 3. 167 Where property, at the time of a demise, is not a nuisance, and an injury happens by some act of the tenant or while he has entire possession and control of the premises, the owner is not liable.

These three rules seem to us to be both comprehensive and correct. Our inquiry, therefore, is to which class the case at bar belongs.

The first class of cases includes those where an owner has, by an express or implied invitation, brought persons to dan

ger and injury, under conditions which amount to a nuisance. Examples of this kind are found in Gordon v. Cummings, 152 Mass. 513, 23 Am. St. Rep. 846, where an owner maintained a common hallway for his tenants, to which a letter carrier was thereby invited; Learoyd v. Godfrey, 138 Mass. 315, where an owner maintained an uncovered well in a passageway to a house, to which a police officer was held to be invited; Larne v. Farren Hotel Co., 116 Mass. 67, Irvine v. Wood, 51 N. Y. 224, 10 Am. Rep. 603, and Tomle v. Hampton, 129 Ill. 383, which were cases of holes in or adjacent to a public walk; and House v. Metcalf, 27 Conn. 631, where an overshot water wheel, so near the road as to frighten horses, was held to be a nuisance. Wendell v. Baxter, 12 Gray, 494, Moody v. New York, 43 Barb. 282, Albert v. State, 66 Md. 325, 59 Am. Rep. 159, like Joyce v. Martin, 15 R. I. 558, were cases of piers or wharves to which the public were held to be invited.

Of the second class, Carson v. Godley, 26 Pa. St. 111, 67 Am. Dec. 404, is an example, the building having been unfit for the purpose for which it was let.

We think it is clear that the case at bar does not fall within the first of these classes. The defect complained of was not in or near a public way, nor in a part of the premises held out by the owner for the entry of strangers, so as to amount to an invitation to a place which is a nuisance. The term "nuisance," in legal phraseology, "is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, working an obstruction of, or injury to, a right of another or of the public": Wood's Law of Nuisances, sec. 1. One has the right to erect a building, in general terms, as he 168 pleases, and even if there be dangerous places in it he violates no right of other people in so doing. If he invites others into such a building he is, to some extent, responsible for their safety; but the building is not on that account a nuisance. So one has the right to hire such a building, and, under the same limitations, he does not thereby maintain a nuisance.

Nor is the case at bar within the second class of cases above described. It does not appear that the building was unfit for the purposes for which it was let. The defect complained of was open and obvious. It could easily have been guarded against by warning or a barrier. Being a freight elevator, it was of itself a warning that it was not intended for the safety of passengers, and equally so was it a warning to those at

Am. St. Rep., Vol. LXXVIII-54

work upon it. The injury was not caused by any defect in the elevator itself. Such elevators are now in common use, and it is a matter of common knowledge that they are more or less unprotected at the sides. The declaration does not state whether the plaintiff's intestate was an employé of the lessee or a stranger, but it seems to imply the latter in stating that he entered upon the invitation of a tenant in said building. If he was an employé, the rule of Kelley v. Silver Spring etc. Co., 12 R. I. 112, 34 Am. Rep. 615, that one who works exposed to a manifest danger cannot look to his employer if he is injured, would apply with stronger reason to exonerate the lessor or the employer. If he was a stranger, on the premises at the invitation of a tenant, the case falls within the third class described above, and the owner is not liable.

In Harpel v. Fall, 63 Minn. 520, the rule is stated that where there is no agreement to repair leased premises by the landlord, and he is not guilty of any fraud or concealment as to their safe condition, and the defects in the premises are not secret, but obvious, the tenant takes the risk of their safe occupancy; and the landlord is not liable to him or to any person entering under his title or who is upon the premises by his invitation for injuries sustained by the unsafe condition of the premises.

To the same effect are Freeman v. Hunnewell, 163 Mass. 169 210; Leonard v. Storer, 115 Mass. 86, 15 Am. Rep. 76; Mellen v. Morrill, 126 Mass. 545, 30 Am. Rep. 695; Davidson v. Fischer, 11 Colo. 583, 7 Am. St. Rep. 267.

Shearman and Redfield on Negligence, fourth edition, section 711, states the rule and the reason for it thus: "Those who claim upon the ground that they were invited into a dangerous place must seek their remedy against the person who invited them. If they are the guests of the tenant, he, and not the landlord, is the person from whom they must seek redress for injuries caused by any defects in the premises, even though the defects existed when the lease was made; for such persons would never have suffered any injury from these defects if they had not entered the premises; and the entry was not made at the request of the landlord or any agent of his." Bearing in mind the distinction of cases such as those cited above, where an invitation by the landlord may be implied, this rule limits the liability of lessor and lessee to his own acts with reference to a stranger.

Do the facts in this case amount to an implied invitation by the landlord? We think not. In Gordon v. Cummings, 152 Mass. 513, 23 Am. St. Rep. 846, and Learoyd v. Godfrey, 138 Mass. 315, the landlords were in control of the dangerous passageways and so themselves held out the invitation to enter. So in places where the public go the owner is held liable because of his participation in a nuisance.

But it would be a startling proposition that every owner who has leased property to others is liable for its absolute security, at the time of letting, to every person whom a tenant may invite to the premises, when such owner can neither have knowledge of such entry nor the chance for warning or protection. We do not think that the law goes to this extent, yet such a proposition would be necessary to sustain the present case.

Ordinarily, a freight elevator is used by employés. Can it be said that a landlord is bound to know that it will be used by strangers? The tenant and his servants, knowing its condition, may use it carefully and safely. If, then, the tenant invites a stranger to use it, he is the one who should give warning and look out for the safety of his guest. We are unable to see how the landlord, in such a case, can be 170 held responsible, without saying that nobody has a right to let property that is in any way dangerous or out of repair, even though the lessee may be willing to take it as it is and be able to use it with safety, having knowledge of the risk. Such a doctrine would be a serious limitation upon the ownership of real property.

For these reasons we conclude that, as the building in question was not a nuisance, nor unfit for the purpose for which it was let, by reason of any secret defect which the landlord may be presumed to know, and as the plaintiff's intestate was not upon the premises by invitation of the defendant, express or implied, and as the defendant was not in possession or control of the elevator well, the plaintiff shows no right of action against the defendant.

The demurrer to the defendant's plea is overruled, and the demurrer to the declaration is sustained. Case remitted to the common pleas division for further proceedings.

DEFECTIVE PREMISES.-THE LIABILITY OF A LANDLORD letting premises in a defective and dangerous condition is considered in the monographic note to Willcox v. Hines, 66 Am. St. Rep. 785-789.

ELEVATORS.-THE LIABILITY OF OWNERS of elevators is considered in the monographic note to Southern etc. Assn. v. Dawson, 56 Am. St. Rep. 806-810. A tenant of a building who uses the elevator in his business is liable for injuries to his servant arising from its defective condition: Oberfelder v. Doran, 26 Neb. 118, 18 Am. St. Rep. 771. But a landlord is answerable for the safe condition of an elevator if he retains control over it and its approaches, particularly if he has covenanted to keep it in repair: Olson v. Schultz, 67 Minn. 494, 64 Am. St. Rep. 437; or if he has knowledge of a latent mechanical defect therein, not discoverable by the tenant in the exercise of reasonable care: Anderson v. Hayes, 101 Wis. 538, 70 Am. St. Rep. 930.

GARRATT FORD COMPANY v. VERMONT MANUFACTURING COMPANY.

[20 Rhode Island, 187.]

CORPORATIONS, FOREIGN — NONCOMPLIANCE WITH STATUTE-RIGHT TO SUE.—A foreign corporation which has failed to comply with a statute requiring it to appoint a resident of the state as its attorney, upon whom service of process against it may be made, and providing a penalty for noncompliance, may nevertheless maintain a suit within the state to recover a just debt due it from a resident thereof.

E. D. Bassett and E. L. Mitchell, for the plaintiff.

C. Lee and F. W. Tillinghast, for the defendant.

187 STINESS, J. The plaintiff, a corporation located in Boston, Massachusetts, sold to the defendant a tank, through a salesman who took the order in Providence, and it now seeks to recover the price in this suit. The defendant asked the judge presiding at the trial to charge that the plaintiff, being a foreign corporation which had not complied with the law of this state in appointing a resident of this state as its attorney (Gen. Laws, cap. 253, secs. 36-41), was not entitled to maintain this action. To the refusal of the judge so to charge the defendant asks for a new trial on the ground of erroneous ruling.

The question whether a corporation of one state can do business in another state without complying with the laws of such state is one which has frequently arisen and upon which decisions are conflicting, although many decisions turn upon the language of a statute. Thus it is held that a statute prohibiting a foreign corporation from doing business in a state without complying with its terms makes such business 188 illegal and void, and that no such corporation can maintain an