(dissenting in part): Time will not permit detailed reference to the record or a prolonged discussion of the authorities, hence my views will be briefly stated.
I believe that under the rule laid down in Bailey v. Kelly, 93 Kan. 723, 145 Pac. 556, which has never been repudiated and is still the law of this state, there is nothing in the instant record to warrant the conclusion reached in the majority opinion that the owners of the property involved, who operated under the partnership name of Burkhardt and Sigman, were guilty of negligence and hence liable for the unfortunate accident resulting in the death of Waterbury. However, this dissent need not be predicated upon that premise.
The undisputed evidence is that when Rudd, the agent of Burkhardt and Sigman, was informed that part of the floor near the center of the Annex was sagging he made an inspection, accompanied *294by Barthelme, the agent for Rocky Mountain, and at that time advised Barthelme the owners would repair the floor if they (Rocky Mountain and Country Club) would take the load off the floor so that it could be done. At that time there were 4,000 cases of beer stored in the Annex. Barthelme immediately contacted Rogers, the manager of Country Club, and offered to help in removing the load from the floor. Rogers said there was not much use in doing it immediately because in a couple of weeks he would have the beer out of the Annex anyway. Thereafter, instead of removing what was there, Rogers continued to put more beer in the Annex and on the date Waterbury suffered the injuries resulting in his death there were 8,825 cases there instead of 4,000. There is some evidence to the effect that Rocky Mountain consented to the additional storing but nowhere in the record is there any evidence disclosing that Burkhardt and Sigman had any knowledge of the fact, or any reason to anticipate, that instead of removing the load from the floor to permit the making of repairs Country Club was proceeding to more than double the load which was there at the time Rudd made the inspection. The accident resulting in Waterbury’s fatal injuries occurred at or about the center part of the Annex. Rudd’s offer to repair the floor was wholly gratuitous. Under the terms of the lease, as quoted in the majority opinion, Burkhardt and Sigman were under no obligation to repair the floor. That obligation was the lessee’s who had also contracted to make such repairs and alterations in the leased premises as were necessary to the conducting of a warehouse storage business.
Under the aforesaid facts and circumstances, and others more fully set forth in the opinion, it is crystal clear that the proximate cause of the accident was the deliberate act of Country Club in continuing to store additional beer in the Annex and overload the floor, with full notice and knowledge of its condition, and that that and that alone was responsible for the accident. This, in my opinion, particularly with a, record devoid of evidence that Country Club’s action in that respect was taken with the knowledge, acquiescence, or consent of Burkhardt and Sigman, was sufficient, in and of itself, to acquit them of any and all actionable negligence even though it be assumed — an assumption to which I do not agree— that the evidence relating to their legal duty prior to that time was of such character as to make them liable or responsible for injuries suffered by invitees of their tenants as a result of any defecti pe condition in the floor of the building.
*295I am convinced that the foregoing conclusion is not only supported but compelled by the great weight of authority (see 32 Am. Jur. 537, § 669 and American Digest System “Landlord & Tenant” § 167 [7]) as well as by our own decisions if they are to be followed and adhered to.
In Kallenbach v. Manne, 138 Kan. 797, 28 P. 2d 746, we held:
“Where cellar doors over which customers entering a store are compelled to walk are in a safe condition in themselves and only become dangerous when one of them is left open by some third person, the fact that the cellar doors were left open does not render the landlord liable'in damages to one lawfully on the premises who falls into the open cellarway and is injured.” (Syl.)
And in the opinion said:
“It will be seen that the weight of authority is that where the premises are in a reasonably safe condition and only become dangerous when some agency outside the control of the landlord has intervened, the landlord is not liable for the injuries sustained by an invitee of the lessee who is lawfully on the premises.” (p. 799.)
To the same effect is Campbell v. Weathers, 153 Kan. 316, 111 P. 2d 72, where we held:
“The mere consent of a landlord to permit his tenant to do a lawful act upon leased premises is not consent to do the act negligently or unlawfully.
“Ordinarily a landlord is not liable in damages to an invitee of the tenant where a negligent intervening act, or acts, of the tenant, over which the landlord has no control, constitute the legal, or proximate cause of the injury.” (Syl. ¶¶ 6, 7.)
And at page 328 of the opinion said:
“Furthermore, according to the weight of authority, which we regard as sound, a landlord is not liable where, as in the instant case, an intervening act or acts of the tenant over which the landlord had no control constitute the procuring cause of the injury. . . .”
See, also, Greiving v. LaPlante, 156 Kan. 196, 131 P. 2d 898.
In my opinion the trial court erred in overruling the demurrer of Burkhardt and Sigman to the evidence, also their motion for an instructed verdict. Therefore I would reverse the judgment against all members of the partnership doing business under the name of Burkhardt and Sigman and direct the trial court to render judgment in their favor.
Thiele and Price, JJ., concur in this dissent.