delivered to the plaintiff, at the latter's special instance and request, in the sum of $98.20. In his answer to the crosscomplaint, the plaintiff denied the indebtedness so alleged.

There was some testimony supporting the above-mentioned allegation of the cross-complaint, and it was this evidence that this court said in the order granting the rehearing had been overlooked in the preparation of the former opinion.

The plaintiff himself testified that the defendant, through Mr. Oddie, its president and manager, had furnished him a bill of groceries, etc., amounting in value to the sum of $80, for which he had not paid. The court made no finding upon this issue.

It is, of course, well settled that if any material issue is left unfound, it is ground for reversal of the judgment. (Hayne on New Trial and Appeal, Rev. ed., p. 1317.)

For the reasons herein stated, both the judgment and the order are reversed and the cause remanded.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 14, 1916.

[Civ. No. 1568. Third Appellate District.-October 7, 1916.] NANCY SHELLMAN et al., Respondents, v. ELLA L. HERSHEY et al., Appellants.

NEGLIGENCE-FALL IN MAKING EXIT FROM OPERA HOUSE-DANGEROUS AND UNSAFE PASSAGEWAY-LIABILITY OF LESSEES.-In an action against the owners of an opera house and the lessees thereof to recover damages for personal injuries sustained by a spectator at an entertainment held therein, in passing out through a side door, which had been opened during the performance by the manager and agent of the lessees, at the request of spectators, for ventilating purposes, the lessees are liable ir damages for such injuries, where it is shown that the door was not used or intended to be used as an exit or entrance, and that it was left open, unguarded, and unlighted at the close of the entertainment and with no step to aid a person in reaching the sidewalk three feet below.

81 Cal. App.-41

ID. NONLIABILITY OF OWNERS.-The owners of the opera house are not
liable in damages for such injuries, where it is shown that such door
was not intended to be used and never was used for the convenience
of patrons, but was intended for the use of and to be used only by
lessees to take in and out stage properties and for the purpose of
occasionally sweeping dirt through, or to air the house.
ID.-NUISANCE CREATED BY LESSEES-Lessor not Liable.—Where prop-
erty is demised, and at the time of the demise is not a nuisance, and
becomes so only by the act of the tenant while in his possession,
and injury happens during such possession, the owner is not liable.
APPEAL from an order of the Superior Court of Yolo
County denying a new trial. N. A. Hawkins, Judge.

The facts are stated in the opinion of the court.
George Clark, and Black & Clark, for Appellants.

A. C. Huston, and H. L. Huston, for Respondents.

CHIPMAN, P. J.-This is an action commenced by plaintiffs to recover damages for an injury suffered by plaintiff Nancy Shellman in passing out through a doorway of the Woodland Opera House owned by defendants, the Hersheys, and under lease to defendants Henry and Giesea. The cause was tried by the court without the aid of a jury, and plaintiff had judgment for two thousand dollars and costs of suit.

Defendants, the Hersheys, moved for a new trial which was denied. They appeal from the order. Defendants Henry and Giesea appeal from the judgment on a separate transcript No. 1569, but do not appeal from the order.

The Woodland Opera House is situated on Second Street of the city of Woodland. The main entrance and exit of the auditorium is on Second Street at the southeast corner of the building. Along the east wall opening into the auditorium, about midway of the building, is a door opening from the dress-circle. It was in stepping out of this door that plaintiff, Mrs. Shellman, fell and received the injury of which she complains. The interior of the opera house is similar to most playhouses. In the center next to the stage is the parquet. surrounding the parquet by a half-circle are the dress-circle seats extending back to the rear wall; at the center of the rear wall is an exit door eight and a half feet wide leading from the dress-circle into the main entrance area; the center

aisle passes from this door down through the dress-circle and parquet; aisles also lead from this door along the south, east and west walls down to the stage. The defendants, the Hersheys, are and have been for many years the owners of this opera house and at the time of the accident, on the evening of May 29, 1912, it was under lease to defendants Henry and Giesea. It had been let by the lessees to the graduating class of the high school of Woodland for an entertainment that evening, for which a rental of $25 was paid to the lessees. Admission to the entertainment was free and the house was crowded with spectators, many standing in the aisles for lack of seating capacity. It is alleged in the complaint: "that the entrance to said opera house is on Second Street in the city of Woodland; that said opera house is so constructed that a door bearing the same relative position to the entrance leads onto Second Street from the main auditorium of the theater; that said door is built three feet above the sidewalk on Second Street; that during all times herein mentioned, there was no light over said door, and said door was not protected or guarded in any way, or at all; that said door as built and situated in said theater is unsafe, insecure, and dangerous to the patrons of said theater. That on the twenty-ninth day of May, 1912, said theater or opera house was leased to L. Henry and F. A. Giesea, but said door was in said building and was so built and located, and was not connected with the sidewalk by any steps or otherwise, or at all, and was not protected or guarded as above described, and was an unsafe and insecure and a dangerous passageway as above described, prior to the leasing of said opera house to said L. Henry and F. A. Giesea; that said owners had during all of the times herein mentioned full knowledge of the unsafe, insecure, and dangerous character of said door, and negligently permitted it to remain in such condition, and failed to properly or at all to safeguard it. That on the evening of the twenty-ninth day of May, 1912, plaintiff, Nancy Shellman, above named, attended a public entertainment at said opera house; that during said performance the above described door was left open; that at the close of said performance, as the spectators were leaving the building, plaintiff, Nancy Shellman, believing that said door was an exit from said theater, walked through said door and was violently precipitated upon the sidewalk; that at the time said plaintiff walked through said door it was unguarded

and unprotected, and there was nothing about said door to warn plaintiff of its dangerous or unsafe character. That by reason of said fall, the left arm of plaintiff, Nancy Shellman, was broken at the elbow; that the bones in said elbow were broken in such a way that they could not and did not properly mend; that said elbow is now stiff"; that she was otherwise injured as set forth in much detail.

In their answer, "defendants deny that said door was constructed for use as an entrance or exit or that it was in any manner necessary" for such use, or that defendants or either of them directed or sanctioned the use of said door as an entrance or exit in the use of said opera house; "admit that said door was not connected with the sidewalk by any steps or otherwise. . . because said door was not an entrance to, or exit from, the said opera house in the use thereof by persons going into, or coming out of said opera house at the time the same was used for public entertainment." Deny that said door as built is or was unsafe or dangerous or that any act of defendants caused the same to be unsafe or dangerous; deny that on May 29, 1912, or at any other time, defendants had full or any knowledge that said door was unsafe or that they permitted it to remain unsafe; allege that when said opera house was leased to said Henry and Giesea, it was never understood that in the management thereof "said doorway should at any time be or remain open as a means of entrance or exit. . . for the use of persons going into or leaving the same; .. that on the occasion of giving said entertainment and after the audience was assembled, some person, whose name cannot be ascertained, requested one Robert Eastham, who at said time was employed by said L. H. Henry and F. A. Giesea, lessees of said opera house, to unlock said door; that said Eastham did thereupon, and pursuant to said request, unlock and open said door and allowed the same to remain open but all without authority, consent, or knowledge of defendants hereby answering, or either of them"; that said plaintiff, Mrs. Shellman, entered said opera house without any charge therefor and voluntarily; that the injury suffered by her in leaving said entertainment was caused by her own negligence "in an effort to leave said opera house speedily and by an unusual means and by stepping out of the doorway mentioned in the complaint, which said doorway could be plainly observed . . . and, if the said Nancy Shellman suf

fered the injuries mentioned in the complaint, they were the direct result of her negligent and careless conduct in so endeavoring to leave said opera house."

The findings of the court are substantially in accord with the averments of the complaint, and are challenged by defendants as not supported by the evidence. A diagram was introduced showing the sidewalk elevation along Second Street. "It shows the sill elevation and floor elevation of the door; in front of that door there is a concrete sidewalk; it is two feet five inches from the sidewalk to the sill of the door; it is nine inches from the sill of the door to the floor of the opera house. There is no step between the sill and the sidewalk. The door is seven feet four inches by three feet four inches. The door opens outward into the street."

Plaintiff, Mrs. Shellman, testified as follows: "I went to the opera house that evening by going up the front steps, the wide steps, on Second Street, and I went down into the lower floor of the opera house, walked around the wall, down to the door. I walked around there, there were no seats so I stood up there until the entertainment was over. There were a great many that did stand up. There wasn't seats. I was standing near the door, not a great ways from the stage, a yard or so from the door. The door was open all the time. I think people were going out there, that is why I stepped out. I thought they were going out there. There was several in between the door and myself where I stood and that is why I stepped out there. I thought I could step out there. The floor in the opera house inclines toward the rear. It seemed to me it was much lower there as I went down the side of it, it seemed so much lower that I could step right out on the sidewalk, that is why I stepped out. I thought I could step on to the sidewalk. The Court: Did you see the sidewalk when you stepped down? A. No, sir. Q. It was dark? A. Yes. Q. You looked out from a light room into the dark street? A. Yes, there was no light there as far as I could see, but I supposed I could step right on to the sidewalk. Mr. Huston: State whether or not there was anything there to prevent you from going out? A. No, sir; nothing there and nobody to tell me, nobody guarded the door. Q. The door was not guarded in any way? A. No, sir. Q. State whether or not the door was standing open or closed? A. Yes, it was standing open. The Court: Was that a warm