I concur in what my brother GRIFFITH has herein said, and in support of the appellant's right to a directed verdict will say further: The land on which the appellee was injured was no part of the city's streets. It was owned by the city, but was devoted by it to a private use. Its liability vel non for the appellee's injury, therefore, *Page 279 is that only which arises because it owned the land. Having leased it to the Standard Oil Company, and the Standard Oil Company having leased it to Harrison, the liability of the city and the Standard Oil Company is that only which attaches to a lessor of land.
This liability is accurately set forth in 1 Rest. Torts, secs. 356 to 362, inclusive:
"Sec. 356. Except as stated in sections 357 to 362, a lessor of land is not liable for bodily harm caused to his lessee or others upon the land with the consent of the lessee or a sub-lessee by any dangerous condition whether natural or artificial which existed when the lessee took possession."
The only section of the restatement referred to in section 356 thereof that has any bearing hereon is section 359, which is as follows:
"A lessor who leases land for a purpose which involves the admission of a large number of persons as patrons of his lessee, is subject to liability for bodily harm caused to them by an artificial condition existing when the lessee took possession, if the lessor (a) knew or should have known of the condition and realized or should have realized the unreasonable risk to them involved therein, and (b) had reason to expect that the lessee would admit his patrons before the land was put in reasonably safe condition for their reception."
"The word `patron' denotes a licensee invited or permitted to enter the land for the purpose for which the land is leased." Comment A on this section. The appellee is not this character of a licensee. She was upon the land for purposes of her own, wholly disconnected from the business of the tenant, and therefore at the time was a mere gratuitous licensee. 1 Rest. Torts, sec. 331. But even if a gratuitous licensee be held to be within the rule of this section, nevertheless, the appellants are not liable for the appellee's injuries. The existence of the oil pit was not only obvious, but was known to *Page 280 Harrison when he leased the land, and was necessary for the purposes of the business he intended to conduct thereon. It constituted no hazard to persons in its vicinity who were using the premises for the business for which it was leased, for this would be either in the daytime or when the station was lighted. Any duty to persons permitted to use the premises for purposes other than those for which the lessors made the lease rested solely upon the person in possession of the premises as lessee, and who had the sole authority to so permit or to refuse the permission, to-wit, Harrison. The appellant lessors were under no duty to supervise the use of the premises by Harrison, and had no authority to enter upon the premises for that purpose, consequently they are not responsible in law for his leaving the premises unlighted, or in the alternative for his leaving the grease pit uncovered. 16 R.C.L. 1070, 1071, notes in 50 L.R.A. (N.S.) 286, and 92 Am. St. Rep. 519.
There is another reason why no recovery should be here permitted. As hereinbefore stated, the land on which this filling station was situated was no part of the city's streets, but was used by it wholly for private purposes. In order to avoid making the angle of the street corner, the appellee, as she and others had been accustomed to do, crossed the land from one street to the other. The case is therefore strikingly similar to Illinois Central R. Co. v. Arnola, 78 Miss. 787, 29 So. 768, 84 Am. St. Rep. 645, wherein the court said that the appellee, the plaintiff "was a mere licensee, and the appellant owed her no duty except that of not inflicting upon her a willful or wanton wrong. . . . A person who, without the invitation or inducement of the owner, goes upon the land or premises of such owner, takes such permission with all the dangers attending it." The leaving of this pit uncovered cannot be here said to have been a willful and wanton wrong, for the appellee knew of the existence of the pit and the manner of its use. *Page 281 1 Rest. Torts, sec. 341, and comments thereon. The Arnola case is in accord with the rule in other jurisdictions. See particularly Fox v. Warren-Quinlan Asphalt Co., 204 N.Y. 240, 97 N.E. 497, 38 L.R.A. (N.S.) 395, Ann. Cas. 1913C, 745; Habina v. Twin City General Elec. Co., 150 Mich. 41, 113 N.W. 586, 13 L.R.A. (N.S.) 1126; and Branan v. Wimsatt, 54 App. D.C. 374, 298 F. 833, 835, 36 A.L.R. 14; 20 R.C.L. 59, note 3, p. 60, and 7 R.C.L. Supp. 4817; 2 Cooley on Torts (3 Ed.) 1268.
Griffith, J., concurs in the foregoing dissent.