Cunningham v. Neil House Hotel Co.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtHORNBECK
Citation33 N.E.2d 859
PartiesCUNNINGHAM v. NEIL HOUSE HOTEL CO.
Decision Date22 November 1940

33 N.E.2d 859

CUNNINGHAM
v.
NEIL HOUSE HOTEL CO.

Court of Appeals of Ohio, Second District, Franklin County.

Nov. 22, 1940.


Action by Blanche Cunningham against the Neil House Hotel Company for injuries sustained when plaintiff, while a guest in defendant's hotel, was stung by an insect. From a judgment for defendant, plaintiff appeals.-[Editorial Statement.]

Judgment affirmed.

[33 N.E.2d 860]

Virgil P. Cline, of Akron, and John C. Fontana, of Columbus, for plaintiff-appellant.

Arnold, Wright, Purpus & Harlor, and Earl F. Morris, all of Columbus, for defendant-appellee.


HORNBECK, Presiding Judge.

This is an appeal on questions of law from a judgment entered upon a verdict of a jury returned for defendant upon the direction of the trial judge at the conclusion of the opening statement of counsel for plaintiff.

The action was for personal injuries claimed to have been suffered by plaintiff by reason of the negligence of the defendant.

The errors assigned are:

(1) The court erred in sustaining the defendant's motion for nonsuit on the plaintiff's opening statement.

(2) In not submitting to the jury the question of defendant's negligence.

(3) The judgment was contrary to law.

(4) Other errors apparent on the face of the record.

Plaintiff in her petition averred that she was a guest of the defendant occupying a room on the third floor of the Neil House; that the ‘defendant then and there knew or, in the exercise of ordinary care should have known, that at the time plaintiff so rented said room the same was infested with a certain deadly and poisonous insect, the name of which plaintiff does not know, but the same was of the spider family, which poisonous and venomous insect defendant carelessly and negligently failed and neglected to destroy but permitted the same to be and remain in said room and during the night said insect stung plaintiff on the right arm at the elbow and on the hand and she was thereby injured as hereafter set forth.’

In the opening statement counsel for plaintiff read the petition in full and in addition thereto stated that plaintiff, together with two other women, occupied a room at the Neil Hotel on the night of September 23, 1936. The night was warm; the windows of the hotel were wide open and not screened; that about 2:00 or 2:30 A. M. on the 24th of September plaintiff was awakened by a burning and stinging sensation in her right arm and upon examination found a welt thereon, above the elbow, which at the time was slightly...

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7 practice notes
  • Brunelle v. Signore, No. E006398
    • United States
    • California Court of Appeals
    • October 31, 1989
    ...discovered and prevented condition or circumstances, no duty in absence of knowledge]; Cunningham v. Neil House Hotel Co. (Ohio App.1940) 33 N.E.2d 859 [no liability for insect sting, negligence cannot be presumed, defendant had no knowledge of presence of particular insect, insect that stu......
  • Myers v. Moore, No. 21091.
    • United States
    • Court of Appeal of Missouri (US)
    • January 10, 1949
    ...196 S.W. 2d 197, 200; Charlton v. Lovelace, (Mo.) 173 S.W. 2d 13, 16, 17, 18, 19, 20; Cunningham v. Neil House Hotel Co., (Ohio App.) 33 N.E. 2d 859, 861; McCloskey v. Koplar, (Mo. Sup.) 46 S.W. 2d 557, 559; Hart v. Emery, Bird, Thayer Dry Goods Co., (Mo. App.) 118 S.W. 2d 509, 511. (3) Und......
  • Kay v. Kay, No. 91-118
    • United States
    • Supreme Court of Arkansas
    • July 15, 1991
    ...negligence resulting in the injury, verdicts directed in favor of the defendants have been affirmed. Cunningham v. Neil House Hotel Co., 33 N.E.2d 859 (Ohio App.1940); Hillwertz v. Parkes, 298 F.2d 527 (6th Cir.1962) (applying Ohio In reviewing the directed verdict against her, we give Mary......
  • Mills v. Best Western Springdale, 2009 Ohio 2901 (Ohio App. 6/18/2009), No. 08AP-1022.
    • United States
    • United States Court of Appeals (Ohio)
    • June 18, 2009
    ...the facts and circumstances give rise to a probability that the defendant is negligent. Cunningham v. Neil House Hotel Co. (App.1940), 33 N.E.2d 859, 33 Ohio Law Abs. 157; Williams v. Lo, 10th Dist. No. 07AP-949, 2008-Ohio-2804, ¶13. The doctrine of res ipsa loquitur does not alter the natu......
  • Request a trial to view additional results
7 cases
  • Brunelle v. Signore, No. E006398
    • United States
    • California Court of Appeals
    • October 31, 1989
    ...discovered and prevented condition or circumstances, no duty in absence of knowledge]; Cunningham v. Neil House Hotel Co. (Ohio App.1940) 33 N.E.2d 859 [no liability for insect sting, negligence cannot be presumed, defendant had no knowledge of presence of particular insect, insect that stu......
  • Myers v. Moore, No. 21091.
    • United States
    • Court of Appeal of Missouri (US)
    • January 10, 1949
    ...196 S.W. 2d 197, 200; Charlton v. Lovelace, (Mo.) 173 S.W. 2d 13, 16, 17, 18, 19, 20; Cunningham v. Neil House Hotel Co., (Ohio App.) 33 N.E. 2d 859, 861; McCloskey v. Koplar, (Mo. Sup.) 46 S.W. 2d 557, 559; Hart v. Emery, Bird, Thayer Dry Goods Co., (Mo. App.) 118 S.W. 2d 509, 511. (3) Und......
  • Kay v. Kay, No. 91-118
    • United States
    • Supreme Court of Arkansas
    • July 15, 1991
    ...negligence resulting in the injury, verdicts directed in favor of the defendants have been affirmed. Cunningham v. Neil House Hotel Co., 33 N.E.2d 859 (Ohio App.1940); Hillwertz v. Parkes, 298 F.2d 527 (6th Cir.1962) (applying Ohio In reviewing the directed verdict against her, we give Mary......
  • Mills v. Best Western Springdale, 2009 Ohio 2901 (Ohio App. 6/18/2009), No. 08AP-1022.
    • United States
    • United States Court of Appeals (Ohio)
    • June 18, 2009
    ...the facts and circumstances give rise to a probability that the defendant is negligent. Cunningham v. Neil House Hotel Co. (App.1940), 33 N.E.2d 859, 33 Ohio Law Abs. 157; Williams v. Lo, 10th Dist. No. 07AP-949, 2008-Ohio-2804, ¶13. The doctrine of res ipsa loquitur does not alter the natu......
  • Request a trial to view additional results

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