150 N.E.2d 855
No. 35403Supreme Court of Ohio.
Decided May 21, 1958.
Landlord and tenant — Injury to tenant’s customer from condition of premises — Entrance steps to leased building — Occupation and control not in landlord, when — Causal relation between injury and condition of premises not established.
CERTIFIED by the Court of Appeals for Huron County.
The defendant Monroeville Oil Company owned and operated a filling station in Monroeville. On the same premises on which the filling station was located and close thereto was a building which the oil company leased to defendant Fox, on an oral month to month basis, for the operation of a restaurant. The plaintiff, Gaug, with her daughter, stopped at the restaurant for lunch, entering the building from the front entrance facing the highway to the north. After ordering lunch they asked the waitress where the rest room was located. The waitress informed them that there was no rest room in the restaurant, but that there was one available in the filling station, and pointed westward toward the filling station.
At about the middle of the west wall of the restaurant there was a door or side entrance from which steps led down to the ground. Fox instructed her employees not to use this door and had a sign placed thereon reading, “Please use other door.” After being informed of the location of the rest room, plaintiff and her daughter went to this west door which was part way open. The daughter opened the screen door and proceeded down the steps. The plaintiff followed her daughter through the doorway, closed the screen door, and as she started to step down she felt her left foot stick and fell to the ground, sustaining injuries.
Plaintiff brought suit jointly against Fox and the oil company to recover damages for the injuries thus sustained.
Plaintiff testified that she did not know what caused her foot to stick or on which step it was when it stuck or from which step she fell. She stated that she looked at the steps before stepping down. There is evidence that the threshold and steps were in a defective condition. This evidence is contradicted by defendants’ exhibits.
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The evidence discloses that the oil company had exclusive possession and control of the filling station, toilet rooms therein, and the parking areas in conjunction therewith. The patrons of the restaurant as well as those of the filling station used the toilet facilities of the filling station. Under the terms of the oral lease, Fox had possession and control of the building housing the restaurant with the exception that the oil company agreed to take care of outside repairs and reserved a corner of the basement having a shower for the convenience of truck-driver patrons of the oil company. Entrance to this basement room was by an outside stairway not involved here.
The jury returned a verdict in favor of plaintiff and against the oil company alone, and judgment was rendered thereon and in favor of Fox.
On appeal by the oil company, the Court of Appeals sustained the motion of Fox to be dismissed as a party to the appeal, on the ground that one sued as jointly and severally liable with another for plaintiff’s injuries may not appeal from that part of a judgment in favor of the codefendant, and that the appellant is relegated to the issues between it and the plaintiff only. Upon the issues between the plaintiff and the oil company, the court found error to the prejudice of the oil company in that plaintiff failed to prove that it was negligent, in that there was a failure to prove that the oil company retained or exercised any control over the portion of the premises on which plaintiff was injured, and that plaintiff failed to establish a direct causal relationship between her fall with resultant injury and the defective condition of the portion of the premises on which plaintiff was injured. The court reversed the judgment of the Common Pleas Court and entered final judgment for the oil company. The judges of the court finding the judgment, upon which they had agreed, to be in conflict with the judgment pronounced by the Court of Appeals for Franklin County in the case o Taylor v. Standard Oil Co., 71 Ohio Law Abs., 75, 130 N.E.2d 391, certified the record of the cause to this court for final determination.
Messrs. Freeman Freeman and Mr. Max W. Johnstone, for appellant.
Messrs. Carpenter Carpenter, for appellee.
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Per Curiam.
The judgment of the Court of Appeals is affirmed on authority of Cooper v. Roose, 151 Ohio St. 316, 85 N.E.2d 545, an Pitts v. Cincinnati Metropolitan Housing Authority, 160 Ohio St. 129, 113 N.E.2d 869.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.