ON MOTION FOR REHEARING. In its motion for rehearing respondent says that in holding that the trial court's findings and conclusions of law to the effect that assured, in reimbursing the New Coliseum Company under the contract of indemnity contained in the lease, was making good for its own primary tortious wrong, was not supported by the evidence nor the law applicable to the evidence, the court has failed to follow the following controlling decisions: Mahnken et ux. v. Gillespie et al., 329 Mo. 51, 43 S.W.2d 797; Meade v. Montrose, 173 Mo. App. 722, 160 S.W. 11; Ferguson v. Long,341 Mo. 182, 107 S.W.2d 7; and Haverstick v. Brookshire (Mo. App.), 28 S.W.2d 432, wherein it has been held that as between the lessor and lessee, the latter is the primary wrongdoer where, as here, personal injuries are sustained by a third person arising from a condition of the premises over which the lessee has control. Some of the cases so hold. However, we have *Page 428 not overlooked these cases, nor the principles they announce. But, they are not applicable to this case. Here the liability which we held that respondent assumed under contract was the liability for personal injuries alleged to have resulted from the lessor's failure to comply with the city ordinance with respect to handrails. The fact that the premises were under lease to respondent did not relieve the lessor from liability for damages for personal injuries resulting from its failure to observe the ordinance requirements. The lease did not shift the duties required by the ordinance to the lessee to make it the primary wrongdoer. [Yall v. Snow, 201 Mo. 511, 100 S.W. 1, 10 L.R.A. (N.S.) 177, 119 Am. St. Rep. 781, 9 Ann. Cas. 1161.]
The motion for rehearing is overruled. Hughes, P.J., andMcCullen, J., concur.