Greisman v. Gillingham, [1934] SCR 375

Supreme Court of Canada

Greisman v. Gillingham, [1934] S.C.R. 375

Date: 1934-04-24

Henry Greisman (Defendant and Third Party) Appellant;

and

David Gillingham (Plaintiff) Respondent;

and

Shiffer-Hillman Clothing Manufacturing Co. (Defendant and Third Party) Respondent.

1934: March 9, 12; 1934: April 24.

Present: Duff C.J. and Lamont, Cannon, Crocket and Hughes JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Negligence—Defective condition of elevator in building—Injury to person using it while cleaning out tenant’s premises in building—Liability of owner of building—Licensee with an interest—Contributory negligence, whether bar to recovery—Joinder of defendants—Costs.

G. had leased a floor in his building to S.H. Co. The lease required the lessees to keep the premises clean. On the last day of the lease plaintiff was cleaning up for S.H. Co. While taking refuse on to, as he thought, a freight elevator, he fell down the elevator shaft and was injured. The elevator had previously been standing there with the safety gate up, in which case mechanical devices were supposed to lock the machinery so that the elevator could not be moved until the gate was lowered, but in some way the elevator had been moved up to the next floor, the gate remaining raised. Plaintiff sued for damages. The jury found that the elevator (its interlocking safety device on that floor) was in a defective condition, causing the acci-

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dent; that this condition could have been discovered by the exercise of reasonable care prior to the accident, by G., but not by S.H. Co.; that plaintiff could by the exercise of reasonable care have avoided the accident, his degree of fault being 10% of the whole fault. The trial judge gave judgment against G. for 90% of plaintiff’s damages as found by the jury, with costs, dismissed the action as against S.H. Co. without costs, and dismissed the action as against certain other defendants (by whom plaintiff had alternatively alleged that he was employed) with costs, but directed that plaintiff should recover these costs from G. The Court of Appeal for Ontario affirmed the judgment, subject to disallowing plaintiff recovery of the costs last mentioned, and subject to a deduction in an item of damages.

Held: The judgment of the Court of Appeal aforesaid ([1933] O.R. 543) should be affirmed.

Plaintiff was a licensee with an interest; the work at which he was employed was in pursuance of the lease which required removal of the refuse.

Holmes v. North Eastern Ry. Co., L.R. 4 Ex. 254; Wright v. London & North Western Ry. Co., 1 Q.B.D. 252; Mersey Docks & Harbour Board v. Proctor, [1923] A.C. 253 at 259, 272; Sutcliffe v. Clients Investment Co., [1924] 2 K.B. 746, and other cases, cited.

There was ample evidence to support the jury’s findings that the elevator was in a defective condition and that such condition could have been discovered by the exercise of reasonable care.

Plaintiff’s contributory negligence was not a bar to his right to recover, under the law in Ontario.

As the Court of Appeal varied the judgment at trial, this Court should not interfere with its disposition of costs (Donald Campbell & Co., v. Pollak, [1927] A.C. 732).

The costs (in the appeals) payable by plaintiff to S.H. Co. should not be added to his judgment against G.

APPEAL by the defendant Greisman from the judgment of the Court of Appeal for Ontario[1] affirming in the result, subject to certain variations, the judgment of Wright, J.¹

The action was brought against Greisman, Shiffer-Hillman Clothing Manufacturing Co. (a partnership) and certain other defendants, and was for damages for personal injuries suffered by the plaintiff (by reason, so it was alleged, of negligence of defendants) when he fell down an elevator shaft in the building owned by the defendant Greisman, while employed in cleaning up for the Shiffer-Hillman Clothing Manufacturing Co. the latter’s premises in the building, which premises they had leased from Greisman under a lease which was terminating.

The action was tried by Wright, J., with a jury and the findings of the jury on questions submitted to them are set out in the judgment now reported. By the judgment

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at trial, the plaintiff recovered against the defendant Greisman $8,856.63 and his costs of the action, the plaintiff’s claim as against Shiffer-Hillman Clothing Manufacturing Co. was dismissed without costs, and the plaintiff’s claim as against the other defendants (by whom plaintiff had alternatively alleged that he was employed) was dismissed with costs, but costs paid by plaintiff to these defendants were to be recovered by plaintiff against the defendant Greisman; third party proceedings between the defendant Greisman and the defendant Shiffer-Hillman Clothing Manufacturing Co. were dismissed without costs.

By the judgment of the Court of Appeal, the amount to be recovered by plaintiff against the defendant Greisman ($8,856.63 in the judgment at trial) was reduced to $8,406.68, and plaintiff was not allowed to recover from the defendant Greisman the costs paid to the other defendants as aforesaid; otherwise the judgment at trial was not disturbed.

The defendant Greisman appealed to the Supreme Court of Canada from the judgment in favour of the plaintiff against him; and alternatively he claimed indemnity against the defendant Shiffer-Hillman Clothing Manufacturing Co., as claimed in third party proceedings, or for contribution from the latter pursuant to the provisions of the Negligence Act (Ont., 1930, c. 27). The plaintiff cross-appealed against the variations made by the Court of Appeal in the judgment at trial and further contended that, should the defendant Greisman be held not liable, the defendant Shiffer-Hillman Clothing Manufacturing Co. should be found liable to plaintiff.

The material facts of the case are sufficiently stated in the judgment now reported.

R.H. Greer, K.C. for the appellant.

N.A. Keys, K.C. and A.J. Doane for the respondent (plaintiff) Gillingham.

I.F. Hellmuth, K.C. and J. Singer for the respondent Shiffer-Hillman Clothing Manufacturing Co.

The judgment of the court was delivered by

HUGHES J.—This action was brought by David Gillingham and his wife, Beatrice May Gillingham, to recover damages for injuries sustained by David Gillingham on the 29th of April, 1930, when the former fell into an elevator

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shaft at the fifth floor of the Spadina Building, in the City of Toronto, owned by Henry Greisman, one of the defendants. The claim of Beatrice May Gillingham was abandoned at the trial.

For a short time before the accident, the plaintiff had been in the employ of the Balfour Building Company, a partnership composed of the last five defendants. At the time of the accident, the fifth floor of the Spadina Building was still under lease from Henry Greisman to Shiffer-Hillman Clothing Manufacturing Company, a partnership composed of two of the owners of the Balfour Building Company. The lease provided, among other things, that the lessees would not allow any refuse, garbage or other loose or objectionable material to accumulate in the demised premises, and that they would at all times keep the premises in a clean and wholesome condition. The lease further provided that the lessees, their clerks, employees, servants and agents, should have the use in common with the lessor, his tenants and others entitled thereto, of the passenger and freight elevators in the building giving access to the fifth floor between the hours of 7.45 a.m. and 6.15 p.m. on all ordinary working days but not including Sundays and holidays, and that the lessees and their clerks, employees, servants and agents and all others permitted to use such elevators should do so at their own risk and that the lessor should under no circumstances be held responsible for any damage or injury happening to any person by such elevators or their appurtenances or by the operation thereof, whether such damage or injury happened by reason of any act or omission of the lessor, his clerks, employees, servants or agents. The accident happened on an ordinary working day between one and two o’clock in the afternoon.

On the morning of the day of the accident, Benjamin Hillman requested Cecil Hayes, superintendent of the Balfour Building Company, to procure some men to clean up the fifth floor of the Spadina Building. Hayes took over the plaintiff and Charles Flick, both employees of the Balfour Building Company. The freight elevator in question was at the southeast corner of the building. There were two fire doors on each floor at the elevator entrance. On each floor there was also a safety gate. This gate could be raised and, when raised, mechanical devices were sup-

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posed to lock the machinery so that the elevator could not be moved until the gate was lowered. It appears, however, that the mechanical catches at times became worn, possibly due to pulling of the propelling cables from other floors. There was evidence that some of these catches had been out of order previously and that repairs had been made in December and April. Just previous to the accident in question, the elevator was standing at the fifth floor and the gate was up. Gillingham was, as he thought, in the act of carrying or pulling a bundle of refuse on to the elevator, but in some way the elevator had moved up to the sixth floor, although the gate on the fifth floor remained raised, as a result of which, Gillingham stepped into space, fell down the elevator shaft and was seriously injured.

The action was tried before the late Mr. Justice Wright and a jury. The following are the questions and answers of the jury:

1. Was the elevator in question in a defective condition at the time of the accident? A. Yes.

2. If so, state wherein it was defective? A. The interlocking safety device on fifth floor was in a defective condition.

3. Could the defective condition of the elevator have been discovered by the exercise of reasonable care prior to the accident? (a) By the defendant Greisman, the owner of the building? A. Yes. (b) By the defendants Shiffer-Hillman Clothing Co.? A. No.

4. Was the accident to the plaintiff caused by the defective condition of the elevator? A. Yes.

5. If your answer to number 4 is yes, then state if the plaintiff could by the exercise of reasonable care have avoided the accident. A. Yes.

6. If your answer to 5 is yes, then state what the plaintiff could and should have done which would have avoided the accident. A. By being a little more careful in looking before stepping, presumably, on the elevator hoist floor.

7. At what sum do you assess the plaintiff’s damages?—A. See below. $9,840.75.

8. If your answer to number 5 is yes and to number 4 is also yes, then do you find it practicable to apportion the respective degrees of fault as between the plaintiff and the parties responsible for the condition of the elevator? A. Yes.

9. If your answer to number 8 is yes, then state the respective degrees of fault. A. The plaintiff 10 per cent. The defendants 90 per cent.

Re Question No. 7. Damages $9,840.75.

Out of pocket expenses—As per expenses (Exhibit 3)........................................		$1,840 75
Subject to the recommendation that Dr. Wilson and Dr. McCormack be approached to reduce their bills 50%.
Damages for wages up to date and for wife....................................	$2,000
Compensation.....................................................................................	5,000	7,000 00
Pain and suffering...............................................................................		1,000 00
		$9,840 75

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The learned trial judge reserved judgment and later gave judgment against Henry Greisman and dismissed the action against Shiffer-Hillman Clothing Manufacturing Company without costs. At the conclusion of the plaintiff’s case, the learned trial judge had dismissed the action against the last five defendants with costs and in his judgment he directed that the plaintiff should recover these costs from Henry Greisman.

The Court of Appeal for Ontario deducted $500 from the allowance of $2,000 made by the jury as “damages for wages up to date and for wife,” answer No. 9, upon the ground that the jury had apparently included something for the wife, although her claim had been abandoned. The Court of Appeal further held that Greisman should not be liable for the costs of the last five defendants as he was not responsible for the joining of them in the action. In other respects the Court of Appeal dismissed the appeal with costs.

From this judgment the defendant, Henry Greisman, appealed to this Court, and the plaintiff cross-appealed in respect of the changes made by the Court of Appeal in the judgment of the learned trial judge and asked judgment against Shiffer-Hillman Clothing Manufacturing Company if Henry Greisman should not be considered liable by this Court.

It was contended before us by counsel for the appellant that the respondent, David Gillingham, at the time of the accident, was a bare licensee and not an invitee as far as the appellant was concerned.

Holmes v. The North Eastern Railway Co.[2] In this case it was the habit to unload coal wagons at the defendants’ station at C. by shunting them and tipping the coal into cells; it was also the practice for the consignees of the coal, or their servants, to assist in the unloading, and for that purpose to go along a flagged path by the side of the wagons. The plaintiff was consignee of a coal wagon, which could not be unloaded in the usual way on account of all the cells being occupied. With the permission of the station master, he went to his wagon, which was shunted in the usual place, took some coal from the top of the wagon, and descended on to the flagged path. The

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flag he stepped on gave way, and he fell into one of the cells and was injured.

It was held, that, although not getting his coal in the usual mode, the plaintiff was not a mere licensee, but was engaged, with the consent and invitation of the defendants, in a transaction of common interest to both parties, and was therefore entitled to require that the defendants’ premises should be in a reasonably secure condition.

Channell B., at page 258, said:

I quite concur in the rule laid down by the cases, that where a person is a mere licensee he has no cause of action on account of dangers existing in the place he is permitted to enter. Now in one sense the plaintiff was a licensee, but he was not a mere licensee, and the word mere has a very qualifying operation. * * * In the delivery and receipt of the coal there was a common interest in them and in the plaintiff, since they were bound to deliver it; and this prevents the case from being that of one who is a mere licensee.

Wright v. The London & North Western Railway Co.[3] In this case the plaintiff sent a heifer, which was put into a horse-box, by defendants’ railway, to their station at P. On the arrival of the train at the station there were only two porters available and so the plaintiff assisted in shunting the horse-box, and while he was so assisting he was run against and injured by a train which was negligently allowed by the defendants’ servants to come out of a siding. There was evidence that the station-master knew that the plaintiff was assisting in the shunting.

It was held that the plaintiff was not a mere volunteer assisting the defendants’ servants, but was on the premises with their consent for the purpose of expediting the delivery of his own goods and the defendants were liable to him for the negligence of their servants. Lord Coleridge, C.J., at page 255 refers with approval to the statement of Channell B., above quoted, and goes on to state that the Holmes case[4] is one of the greatest authority.

Mersey Docks & Harbour Board v. Proctor[5]. In this case the defendants owned two floating docks called the East and West Floats. A boiler maker, who was working for a contractor on a ship lying in the East Float, left the ship at 4.45 on a December afternoon to go to the latrine and was never seen alive again, His body was found in the West Float opposite the point where there

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was a gap in the line of chains, the chain having been taken down for the convenience of some men working on the quay, and having been left down for several days.

It was held by Viscount Cave, L.C., Lord Sumner and Lord Carson; Lord Shaw of Dunfermline and Lord Buckmaster dissenting; that in the circumstances, the failure of the defendants to keep the chain in position was not a breach of any duty owed by them to the deceased and that the action failed.

Viscount Cave, L.C., said at p. 259:

The respondent’s case is rested on the well-established principle that where a landowner invites or induces a person to go upon his land, not as a bare licensee but for some purpose in which both have an interest, he must make reasonable provision for that person’s safety. This rule was clearly stated in the judgment of Willes J. in Indermaur v. Dames[6], where that learned judge summed up the law as follows:—

“The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied. And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact.”

In the present case it is not disputed that the deceased man came within the class described by Willes J. He came upon the dock property and passed to and from the vessel where he was engaged upon business which concerned both the dock company and himself; and he was entitled, subject to using reasonable care on his part, to expect that the dock company should use reasonable care to protect him from any unusual danger known to the company and not known to or reasonably to be expected by him. If so, the questions of fact which arise or may arise are three—namely, (1) Were the appellants guilty of negligence or want of reasonable care for the safety of the deceased? (2) If so, was their negligence or want of care the cause of his death? and (3) Was there any contributory negligence or want of reasonable care on his part for his own safety?

Lord Sumner, at page 272, said:

The leading distinction between an invitee and a licensee is that, in the case of the former, invitor and invitee have a common interest, while, in the latter, licensor and licensee have none. The common interest here is that ships in the docks should, when necessary, be able to employ boilermakers on board of them. In the other case, the licensee has an individual interest in being allowed to pass, while the licensor, the leave being gratuitous, has no interest in the matter at all, so long as the licensee does not get into trouble or into mischief.

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Fairman v. Perpetual Investment Building Society[7]. In this case, the defendants owned a block of flats which they let to various tenants, the defendants keeping possession and control of the common staircase giving access to the flats. The stairs were made of cement reinforced by iron bars embedded in the cement and running along the whole length of the tread. Owing to the wearing away of the cement, in some cases irregular depressions were scooped out behind the iron bars. The plaintiff, who lodged with her sister in a flat on the fourth floor, of which the sister’s husband was tenant, whilst descending the stairs, caught her heel in a depression so formed, and fell and was injured.

It was held in the House of Lords that the only duty owed by the defendants to the plaintiff was not to expose her to a concealed trap.

Lord Atkinson said at page 86:

The plaintiff, being only a licensee, was therefore bound to take the stairs as she found them, but the landlord was on his side bound not to expose her, without warning, to a hidden peril, of the existence of which he knew, or ought to have known. He owed a duty to her not to lay a trap for her. But even if the plaintiff was in the position of an invitee of the defendants, her rights and duties in that character would be those described and measured by the well-known passage from Willes J.’s judgment in Indermaur v. Dames[8].

Lord Wrenbury at page 95 said:

It is well to define at the outset what, in my judgment, is the relation between the plaintiff and the landlord in respect of which she can sue. There was no contractual relation. She was a person who, as between herself and the landlord, was entitled to use the landlord’s staircase, because she was there rightly for the purpose of gaining access to premises which he had demised to a tenant with an implied right of use by the tenant and all persons lawfully resorting to the tenant’s premises. She was, I think, the invitee of the tenant, and, in consequence, the licensee of the landlord.

The position as between the owner of premises and a licensee is that permission is given to come upon the premises, such as they are, and the licensee must take them as they are. The owner of dilapidated premises may demise them as they are: Cavalier v. Pope[9]: “A landlord who lets a house in a dangerous state, is not liable to the tenant’s customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house.” Per Erle C.J.: Robbins v. Jones[10], approved by Lord Macnaghten in Cavalier v. Pope⁹. The licensee must take the premises as he finds them; but this is apart from and subject to that which follows as to concealed dangers. The owner must not expose the licensee to a hidden peril. If there is some danger of which the owner has knowledge, or ought to

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have knowledge, and which is not known to the licensee or obvious to the licensee using reasonable care, the owner owes a duty to the licensee to inform him of it. If the danger is not obvious, if it is a concealed danger, and the licensee is injured, the owner is liable.

In Robert Addie & Sons (Collieries) Ltd. v. Dumbreck[11], a boy four years of age was killed by machinery belonging to a colliery company. The field was surrounded by a hedge which was inadequate to keep out the public and it was known to the colliery company that it was used as a playground by young children. Lord Hailsham, Lord Chancellor, page 365, said:

In the case of persons who are not there by invitation, but who are there by leave and licence, express or implied, the duty is much less stringent—the occupier has no duty to ensure that the premises are safe, but he is bound not to create a trap or to allow a concealed danger to exist upon the said premises, which is not apparent to the visitor, but which is known—or ought to be known—to the occupier.

The Court of Appeal of Ontario considered that the case most nearly analogous was Sutcliffe v. Clients Investment Company[12]. In that case, the owners of a flat let it to a tenant and agreed to contribute to the cost of decorating and repairing it at the commencement of the term. The tenant employed a firm of builders to do the work. The firm’s advertisement board was fixed to a balcony with a balustrade projecting from the front wall of the flat. The judge at the trial found that the balcony was not part of the demised premises, but was part of the exterior of the premises which the lessors were bound to repair. The jury found that the balcony was dangerous and that the lessors knew or ought to have known this. When the work was completed, the firm’s foreman went on to the balcony to remove the advertising board. The balustrade gave way and the man was killed. It was held by the Court of Appeal that the widow was entitled to recover, as the plaintiff was more than a bare licensee and was at least a licensee with an interest, with the same right as an invitee, and that there was evidence to support the finding of the jury that the defendants ought to have known the balcony was dangerous. Banks, L.J., said that the responsibility of the occupier of premises towards a bare licensee was merely not to set a trap for him, and that, apart from dangers of which the occupier knows and the licensee does not know, the licensee must take the premises as he finds

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them. He doubted if Lord Atkinson or Lord Wrenbury in the Fairman case[13] intended to make any alteration in the law. Scrutton, L.J., also considered that the plaintiff was a licensee with an interest and referred to the judgment of Hamilton, L.J., in Latham v. Johnson[14]. See also Hillen v. I.C.I. (Alkali) Ltd.[15]

As already stated, the lease provided that the lessees would not allow any ashes, refuse, garbage, or other loose or objectionable material to accumulate in the premises, and would at all times keep the premises in a clean and wholesome condition. On the morning of the accident, Cecil Hayes, Superintendent of the Balfour Building Company, was summoned by Benjamin Hillman who directed Hayes to send all the men available to clean up the premises on the fifth floor of the Spadina Building. Hayes had only two men available, the plaintiff, and one, Flick, and he took them over and shewed them their duties to clean up and take the debris and rubbish downstairs into the stokehole of the Balfour Building. The work had to be finished that day.

The plaintiff testified that he was told by Hayes to clear the garbage up and get the room cleared up as the lease was up that day and that the floor had to be cleared up. Before the accident, he had taken some of the loose material down and thrown it into the Balfour Building.

Charles Flick testified that immediately before the accident there was a lot of garbage there, old clothes, coats, pants, lumber, partitions, boxes and cardboards. There was a lot of stuff left there that had to be cleaned up.

It seems clear, therefore, that it would have been a breach of the lease if the lessees had left the debris and rubbish, referred to, on the premises subsequent to the termination of the lease. The work, therefore, must have been done in pursuance of the lease, and I am of opinion that the plaintiff was a licensee with an interest, as found by the Court of Appeal.

As to the condition of the elevator, Wilfrid Howson said that sometimes the elevator worked properly before the accident and sometimes it operated with the gates up. He thought that a change was made as a result of complaints which he made.

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Jack Rogers testified that the gates, especially the first floor gate, would remain up after the elevator had moved away. He had last observed the condition six or seven days before the accident.

John O’Driscoll, a police constable, testified that within an hour or two after the accident he saw a government inspector making tests and the elevator would move up or down with the gates raised on the fifth floor.

J.W. Dayes testified that on December 10th previously, he found the interlocks out of order and repaired them. He reported to Henry Greisman’s superintendent. He did not inspect again until the day following the accident, when he found the interlocks again out of order, especially on the fifth floor. He found that the constant pulling by a person at another floor, who wanted to get the elevator, had worn the lock to such an extent that the key would turn around in its keeper and could be forced right around. On April 30th, he and Superintendent Norton operated the elevator with the gate up. That had been the condition on one or more of the floors on December 10th previously, and Dayes had given Norton a blank recommendation to have all put in shape. It was just a case of wear and tear. On the day following the accident, the lock on the fifth floor was worn very considerably. He said that there would not have been any difficulty in discovering the condition if the lock had been inspected regularly. It should have been replaced as soon as it gave evidence of wear and tear.

Arthur Norton, Superintendent, testified that he had inspected the elevator five days before and that it was in perfect working order. He produced an account from OtisFensom Elevator Company Limited for adjustments on freight elevator as of February 11th, 1930.

There was therefore ample evidence to support the finding of the jury that the elevator was in a defective condition and that the defective condition could have been discovered by the exercise of reasonable care.

It was also contended in behalf of the appellant, Henry Greisman, that the plaintiff was not entitled to recover because there was negligence upon his part; but we agree with the Court of Appeal that the contributory negligence of the plaintiff was not a bar to his right to recovery in the Province of Ontario.

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The appeal of Henry Greisman should, therefore, be dismissed with costs.

The plaintiff cross-appealed against the deduction by the Court of Appeal of $500 above referred to, and urged that the wages alone would have amounted to more than $1,500, the amount allowed by the Court of Appeal in lieu of the sum of $2,000 allowed by the jury as “damages for wages up to date and for wife”. The jury, however, did not make any separate finding of the amount of the wages, and there was no assurance that the plaintiff would have received steady employment at the same rate of wages if he had not been injured.

The plaintiff cross-appealed also against that part of the judgment of the Court of Appeal which varied the judgment of the learned trial judge which required the appellant, Henry Greisman, to pay to the plaintiff the costs of the last five defendants who constituted the Balfour Building Company.

As the Court of Appeal varied the judgment of the learned trial judge, this Court should not interfere with the disposition of costs made by the Court of Appeal. Donald Campbell & Company & Pollak[16].

The cross-appeal will, therefore, be dismissed without costs.

The appeal of the respondent against Shiffer-Hillman Clothing Manufacturing Company will be dismissed, and the third party proceedings taken by the appellant, Henry Greisman, against Shiffer-Hillman Clothing Manufacturing Company, will be dismissed. Shiffer-Hillman Clothing Manufacturing Company will be entitled to one set of costs in this Court, of which the respondent, David Gillingham, should pay three-quarters and the appellant, Henry Greisman, one-quarter.

The only question remaining is whether the costs payable by the respondent to Shiffer‑Hillman Clothing Manufacturing Company should be added to the judgment of the respondent against the appellant, Henry Greisman. In my opinion, they should not be added.

Fraser v. Payne[17]. Besterman v. British Motor Cab Co. Ltd.[18]

It may have been reasonable for the respondent to join Henry Greisman and Shiffer-Hillman Clothing Manufac-

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turing Company in the original action, but the jury found that the defective condition of the elevator could not have been discovered by the exercise of reasonable care on the part of Shiffer-Hillman Clothing Manufacturing Company, and it cannot very well be said to have been reasonable to continue the joinder of Shiffer-Hillman Clothing Manufacturing Company to this Court, particularly after the finding of the jury had been affirmed by the Court of Appeal.

Appeal dismissed with costs; cross-appeal dismissed.

Solicitors for the appellant: Smith, Rae & Greer.

Solicitors for the respondent Gillingham: Butters & Doane.

Solicitors for the respondent Shiffer-Hillman Clothing Manufacturing Co.: Singer & Kert.