53 N.E.2d 790 (Ohio 1944), 29545, Globe Indem. Co. v. Schmitt

Docket Nº:29545.
Citation:53 N.E.2d 790, 142 Ohio St. 595
Opinion Judge:ZIMMERMAN, J.
Attorney:Pogue, Helmholz, Culbertson & French, of Cincinnati, for appellant. Messrs. Pogue, Helmholz, Culbertson & French, for appellant. Mr. Robert G. McIntosh, for appellee.
Judge Panel:WEYGANDT, C. J., dissenting. MATTHIAS, HART, WILLIAMS, and TURNER, JJ., concur. WEYGANDT, C.J., dissents.
Case Date:March 08, 1944
Court:Supreme Court of Ohio

Page 790

53 N.E.2d 790 (Ohio 1944)

142 Ohio St. 595




No. 29545.

Supreme Court of Ohio

March 8, 1944

Syllabus by the Court.

1. The occupier of premises who maintains for his own benefit a covered opening in the adjacent sidewalk is liable for injuries received by a pedestrian as the result of the negligence of an independent contractor in removing the cover and thereafter failing to guard the opening while using it in connection with services being rendered such occupier.

2. The independent contractor is also liable for his negligence to the injured pedestrian and the latter has a right of

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action for damages against eigher the contractor or the occupier.

3. Where the occupier is free from actual fault but responds to the damage claim of the person hurt, he may have indemnity from the contractor whose active negligence caused the injuries.

4. Whether the occupier settles the claim voluntarily or pays it by force of a judgment does not affect his right to indemnity. But in an action for indemnity after voluntary settlement, the occupier must prove that he has gven proper and timely notice to the one from whom such indemnity is sought, that he was legally liable to respond, and that the settlement made was fair and reasonable.

Appeal from Court of Appeals, Hamilton County.

The John Shillito Company operates a large department store in the city of Cincinnati. Its building covers an entire block and is bounded by Race, Seventh and Elm streets and Shillito Place. Shillito Place is used as the service street for the store, where merchandise and other materials are taken in and out. The John Shillito Company occupies the space beneath[142 Ohio St. 596] the sidewalk on the north side of Shillito Place, and maintains several openings in the sidewalk, fitted with sectional iron grills constructed to lie over the openings and level with the sidewalk. Suspended directly under the grills are light metal sheets or plates to catch trash and dirt and to regular ventilation.

Alois Schmitt, an independent contractor, was employed by the John Shillito Company to take waste material from its store, in connection with which labor he utilized his motor truck. On occasion, as an incident of his work, Schmitt would remove the iron grills described above and sweep trash accumulations from the underlying metal sheets.

On the morning of June 7, 1939, he and his helper were engaged in this occupation when Mrs. Nellie Sullivan, a pedestrian walking eastwardly along the north sidewalk of Shillito Place, stepped upon one of the uncovered metal sheets which was unprotected and unguarded. It gave way and she was precipitated to the basement floor below and suffered substantial injuries.

On the morning in question the John Shillito Company had not been advised of Schmitt's intention to remove the grills and clean the metal sheets, and so far as the record shows did not know such work was being done.

Mrs. Sullivan, the injured pedestrian, brought suit for damages against the John Shillito Company in the Court of Common Pleas of Hamilton county to recover for her injuries, and her husband also sued for loss of services and for various expenses incurred in the treatment of his wife for the injuries received.

The Globe Indemnity Company, a New York corporation, authorized to do business in Ohio, an insurer of the John Shillito Company, assumed defense of the acctions under the provisions of its policy. [142 Ohio St. 597] Schmitt was notified in writing of the commencement of the actions and a demand was made upon him to defend them and assume liability. He did not respond. Subsequently, negotiations for settlement of the actions were had. Schmitt was advised of this in writing and demand was made upon him to settle the litigation within a stated time for the amount agreed upon, in default whereof settlement would be made by the John Shillito Company, or by its insurer, with the expectation of being reimbursed. Schmitt ignored the demand, whereupon the Globe Indemnity Company proceeded to adjust both cases for $5,000 and court costs, and entries of dismissal were filed.

Thereafter the indemnity company, on the basis that it had become subrogated to any rights of indemnity the Shillito Company might have against Schmitt, filed its action against him in the Court of Common Pleas of Hamilton county, seeking recovery of the amount it had paid together with court costs and expenses. The case was tried twice. On the first trial

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the jury returned a verdict for Schmitt, which was set aside. On the second trial, at the close of plaintiff's case in chief, the court sustained the defendant's motion for a directed verdict on the ground that the primary liability for Mrs. Sullivan's injuries was that of the John Shillito Company, and entered judgment for the defendant.

An appeal on questions of law prosecuted to the Court of Appeals resulted in an affirmance of the judgment below, and the case is now in this court pursuant to the allowance of the motion for certification.

Pogue, Helmholz, Culbertson & French, of Cincinnati, for appellant.

Robert G. McIntosh, of Cincinnati, for appellee.


Briefly stated, the question for decision is whether the Globe Indemnity Company, having[142 Ohio St. 598] settled damage claims for which its insured, the John Shillito Company, was deemed liable, may properly maintain an action for indemnity against Alois Schmitt.

It is a well established rule 'that a person who occupies premises, and maintains or controls, for his own convenience, an opening in the adjacent sidewalk, through which he contracts for the delivery of goods, is liable for injuries received by a pedestrian as a result of the negligence of the deliveryman in not properly guarding or in failing to properly close the aperture.' 11 A.L.R. 571 annotation; 53 A.L.R. 932 annotation. See Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N.E. 618, 76 Am.St.Rep. 375; Richman Bros. Co. v. Miller, 131 Ohio St. 424, 3 N.E.2d 360; Herron v. City of Youngstown, 136 Ohio St. 190, 193, 24 N.E.2d 708.

Such liability rests on the theory that the occupier of the premises having created the potentially dangerous opening or having allowed it to exist has the nondelegable duty to see that it is kept and used at all times so as not to cause harm to passers-by. Hawver v. Whalen, 49 Ohio St. 69, 81, 29 N.E. 1049, 1052, 14 L.R.A. 828, 836.

Of course, the deliverer of goods or one in a similar position is likewise obliged to exercise ordinary care in the performance...

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