Subba Rao, J.
1. These appeals arise out of two suits O. S. No. 51 of 1946 and O. S. No. 67 of 1946 on the file of the Court of the Subordinate Judge of Mathurai. Gopalakrishna Talkies is a Cinema Theatre situate in the West Masi Street, Mathurai town. On 23-5-1916 the Hindi picture of 'Kannoon' was being exhibited in the theatre. The late Jeshubhai D. Patel, his wife and plaintiff 1, with three others attended that show at 7 p. m. and occupied the seats in the balcony of the said theatre. After the show started there wa3 rain and heavy gale and the front ornamental wall above the roof of the theatre fell down over the roof and the roof and the truss underneath gave way and collapsed and Patel and his wife along with others received serious injuries. The injured persons were removed to the Government hospital at Mathurai and unfortunately Patel succumbed to the injuries and died in the hospital on 25-5-45. Pushpa Ben, his widow who was pregnant at the time of the injury, gave birth to a female child later on. The widow, the daughter and the father of the deceased filed O. S. No. 52 of 1946 on the file of the Sub-Court, Mathurai, for damages for loss incurred by them on account of the death of Patel. The widow Pushpa Ben then filed O. S. No. 67 of 1946 for damages for injuries caused to her. Defendant 1 is the owner of the theatre; defendant 2 was the lessee of the theatre when the accident took place. Defendant 1, in both the suits contended inter alia that the front wall was in existence from the time the theatre was constructed in the year 1934 and 1935, that the said theatre was constructed in compliance with the statutory provisions of the District Municipalities Act, Public Health Act, the Places of Public Resort Act, and the cinematograph Act, that the wall was slightly raised at the request of defendant 2, and that the accident was due to an act of god by reason of unprecedented rain and storm in Mathurai on that day. Defendant 2, generally supported defendant 1, but alleged that the wall was in existence even from the very beginning. The learned Subordinate Judge found that the front ornamental wall above the roof of the theatre was newly constructed about the end of 1942 by defendant 1, in consultation with defendant 2 and on his suggestion. He, however, held that the wall so constructed was an unsafe and faulty structure and a hidden death trap to the occupants of the seats in the balcony of the theatre. He assessed the damages at Rs. 30,000 in O. S. No. 51 of 1946 and at Rs. 3500 in O. S No. 67 of 1946 and decreed the suits against both the defendants. Defendant 1 preferred A. S. No. 655 of 1917 against the decree in O. S. No. 51 of 1946 and A. S. No. 798 of 1918 against the decree in O. S. No. 67 of 1946. Defendant 2 filed A. s. No. 678 of 1947 against the decree in O. S. No. 51 of 1946 and A. S. No. 799 of 1947 against the decree in O. S. No. 67 of 1916. Pending the appeals, the appellant in A. S. No. 655 of 1947 and 793 of 1947 became insolvent and the Official Receiver, Mathurai in whom his properties vested expressed his disinclination to proceed with the appeals. The said appeals were therefore dismissed with costs.
2. In the appeals filed by defendant 2, we shall first consider the nature and the condition of the wall, which collapsed and caused the damages. The site of the building was owned by Abdul Khader Sahib, who leased it to defendant 1, in the year 1917. In 1935, the cinema theatre was constructed by defendant 1. Though according to specifications the walls should be built up of brick and lime as a matter of fact, they were built of brick and mud. From 11-2-1933 to 10-2-1941 the cinema hall was leased out to one Patel. By the end of 1942, as the original gable front was not prominent to give it a better frontal appearance an ornamental facade was built, over the gable front, of a height of over 12 on which the words 'Sri Gopalakrishna Talkies' were artistically engraved. On 19-10-1942, the cinema hall was leased out to defendant 2, for a period of three years. The executive engineer states in his report that the later construction was not properly bounded into the old gable wall and that a weak cleavage plane had existed at the joint of the old and new construction. He was of the opinion that the ornamental structure was not evidently designed to take extra heavy wind loads, not to speak of storms and that the bonding of the old and new structure was not designed to take up heavy wind stresses. It is also found that the extended wall was built of brick and mud. The learned Judge found that the collapse of the wall was due to this defective and flimsy construction, and this finding has not been canvassed before us.
3. But Mr. Kuttikrishha Menon, the learned counsel for defendant 2, contended that whatever might be the liability of defendant 1, his client was not liable for damages, as he had no knowledge of the flimsy structure and that he was not guilty of want of any reasonable care. He fairly conceded that in case we should hold that defendant 2 was equally liable, the amount of damages awarded would not be unreasonable.
4. The principles regulating the liability of an occupier to a person permitted to enter his premises and injured therein are well settled, though their application to the peculiar circumstances of each case is not free from difficulty. Entry by permission of the occupier is of two kinds; invitation or licence. The distinction between the two is expressed by Salmond in his book on the 'Law of Torts' Bdn. 10 at p. 476 in the following formula;
The invitor says: 'I ask you to enter upon my business'. The licensor says; 'I permit you to enter on your own business.'
This somewhat over-simplified formula was commented on by Mackinnon L. J. in Ellis V. Fulham Corporation, (1937) 3 ALL E. R. 451 ; 157 L.T. 380, Aaquith L. J, in Pearson v. Lambeth Borough Council, (1950) 1 ALL E. R. 682 would prefer to define an invitee in the following manner:
'It is more exact to say that an Invites is a person who comes on the occupier's premises with his consent on business in which the occupier and he have a common Interest, e. g., a shopper has an interest to buy and a shop keeper an interest to sell.'
Whether common interest for this purpose necessarily should be accompanied by some pecuniary gain, immediate or remote, is a question on which no final opinion has yet been expressed by Judicial decisions and it is not necessary to attempt) to do so in this case, as even on that assumption the plaintiffs would be invitees in the technical sense of the term. Defendant 2 was running the cinema and the deceased and his wife entered the premises after purchasing tickets. The plaintiffs therefore entered the premises a with the consent of the occupier on business in which the occupier and the plaintiffs have a common interest. They are certainly invitees, and therefore, the liability of defendant 2 should be ascertained, having regard to that relationship.
5. The extent and the scope of the liability of an occupier to an invitee is equally well established. In Salmond on the 'Law of Torts' Edn, 10, at p. 478 the learned author says.
The class to which the customer belongs includes persons who go not as mere volunteers, or guests, or Servants, or parsons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier and upon this invitation, express or implied. And with respect to such a visitor at least, we consider it fettled law, that he, using reasonable care on his own 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.'
The same view is expressed in different language in Halsbury's Laws of England, vol. 23, (Lord Hailsham's Edition) at p. 604 as follows :
'The duty of the occupier of premises, on which the invitee comes, is to take reasonable care that the premises are safe, and to prevent injury to the invitee from unusual dangers which are more or less hidden, of whose existence the occupier is aware or ought to be aware or in other words, to have his premises reasonably safe for the use that is to be made of them.'
The question is whether defendant 2 was aware or ought to have been aware of the hidden danger and whether he had taken reasonable care to prevent injury to the invitee. (His Lordship considered the evidence and proceeded): On a consideration of the entire evidence we hold that the ornamental facade was built by defendant 1 on the gable front on the suggestion and at the instance of defendant 2, that the work was commenced before the new lease took effect, but completed only after defendant 2 took possession, and that defendant 2 or his agent knew full well the defects in the structure and also the fact that it was built in disregard of the provisions of the places of Public Resort Act and the Cinematograph Act. Defendant 2, therefore, bad knowledge of the hidden danger and did not take any reasonable care to prevent injury to the invitee. He is therefore clearly liable to pay damages to the plaintiffs.
6. The learned counsel relied upon the decision in Pritchard v. Peto, (1917) 2 K. B. 173: 86 L J. K. B. 1292 in Support of his contention that defendant 2 is not liable. In that case, the plaintiff went to a house owned and occupied by one of the defendants, a married woman, to collect money due to him from her. While he was standing upon the door step, a projecting cornice from the top of the house fell on his head and injured him. The house wag in apparently good repair, and the defendant did not know of the defect in the cornice. The defect, which was an old one, was due to the action of the weather upon the cement. On these facts the learned Judge held that the plaintiff was not entitled to recover damages, inasmuch as the defendant's duty was to exercise reasonable care to keep the house in such a state or repair asnot to expose the plaintiff to any hidden dangerof which the defendant was aware or ought tohave been aware; and that the plaintiff had notshown that she was aware, or ought to havebeen aware, of the decay of the cornice. Indeed,in the course of the argument it was admittedthat she was ignorant of the defect, but noattempt) was made to show that her ignorancewas due to neglect of some reasonable precaution. That decision accepts the principles abovestated, but on the facts accepts the defendant'splea. That decision is, therefore, of no avail tothe appellant. Even so the learned counsel pressed on us that we should confine the liability ofdefendant 2 to the amount of it Rs 13,500 recovered already from him. On our findings we cannotBay that his liability as the occupier and lesseeis in any way less than that of the owner. Thedecree of the lower Court is therefore correct.
7. Both the appeals are dismissed with costs