Logsdon v. Main-Nottingham Inv. Co.

• Decision Date: 22 May 1956
• Docket Number: MAIN-NOTTINGHAM
• Citation: 3 O.O.2d 289,103 Ohio App. 233,141 N.E.2d 216
• Parties: , 74 Ohio Law Abs. 467, 3 O.O.2d 289 Orville LOGSDON, Plaintiff-Appellee, v. TheINVESTMENT COMPANY, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 233

103 Ohio App. 233

141 N.E.2d 216, 74 Ohio Law Abs. 467, 3 O.O.2d 289

Orville LOGSDON, Plaintiff-Appellee, v. The MAIN-NOTTINGHAM INVESTMENT COMPANY, Defendant-Appellant.

Court of Appeals of Ohio, Montgomery County.

May 22, 1956.

Curtner, Brenton & O'Hara, Dayton, by Clifford R. Curtner, Dayton, of counsel, for defendant-appellant.

Altick & McDaniel, Dayton, by Hugh H. Altick, Dayton, of counsel, for plaintiff-appellee.

HORNBECK, Judge.

This is an appeal on questions of law from a judgment entered on a verdict in behalf of plaintiff and against the defendant in the sum of $10,000. Defendant appeals.

The following errors are assigned:

1. Errors of the Court in Overruling Motion for Directed Verdict at the Close of the Evidence:

(a) Plaintiff-Appellee failed to sustain the burden of proof as to negligence of Defendant as alleged in the Amended Petition.

(b) Plaintiff failed to sustain the burden of proof that the alleged accident occurred in a common hallway provided for common ingress or egress under the lease.

(c) Plaintiff failed to sustain the burden of proof as to control of the room, of creating a hidden pitfall, or of any notice that one existed.

(d) The evidence established that Plaintiff assumed the risk, proximately resulting in his injury.

(e) The evidence established that plaintiff was guilty of contributory negligence, as a matter of law, directly and proximately resulting in his fall.

2. Errors of the Court at the Conclusion of Plaintiff's and Defendant's Evidence in----

(a) Refusing to strike allegations of negligence from the amended petition.

(b) Overruling demurrer to petition and evidence at the close of plaintiff's case.

(c) Overruling to non-suit on ground of departure, variance and surprise.

(d) Overruling motion to remove specifications of negligence from jury consideration.

(e) Overruling the motions to dismiss for the reason that the evidence established defendant ABCo Construction Company was primarily liable and had effected settlement with plaintiff.

(f) Overruling motion to remove from the jury the allegation as to injuries.

3. The Court Erred in Permitting the Jury to Speculate on the Inference of Agency by Estoppel.

4. Errors of the Court in the Matter of Amendments of the Pleadings.

5. Errors of the Court in the Admission and Rejection of Evidence Prejudicial to Defendant.

6. Error of the Trial Court in the Giving and Special Instruction No. 1 of Plaintiff and Refusal to Give Defendant's Special Instructions Nos. 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 15 and 16.

7. Errors of the Court in Its General Charge to the Jury on----

(a) Agency by estoppel and emphasis thereon.

(b) Burden of proof to establish contributory negligence.

(c) An invitee.

(d) Omission to charge on burden with respect to medical proof.

(e) Omission to charge as requested with respect to ingress and egress.

(f) Omitted to charge on terms of the lease with respect to occupancy.

(g) Refused to charge or define obligation of owner as to condition of premises.

(h) Refused to charge that room was not intended for common use of tenants but was for workmen of ABCo.

(i) Refused to submit issue of control of room.

(j) Refused to submit issue of notice of defendant.

(k) Refused to instruct the jury with regard to hazards of building construction.

(l) Refused to submit issue of assumption of risk.

(m) Refused to submit charge with respect to agency of ABCo and sub-contractors.

(n) Refused to charge on sole negligence of ABCo.

(o) Failed to submit issue of primary and secondary negligence.

8. The Court Failed to Define the Issues Raised by the Pleadings and the Evidence.

9. That the Verdict was Excessive and Rendered under Passion and Prejudice.

10. That the Jury was Permitted to Speculate as to the Damage for Injuries not Shown by the Evidence to be Directly and Proximately a Probable Result from the Accident.

11. Errors of the Court in Overruling Defendant's Motion for Judgment Non Obstante Veredicto and for a New Trial and Rendering Judgment for Plaintiff.

The facts essential to an appreciation of the errors assigned are that plaintiff instituted his action for damages for personal injuries against The ABCo Construction Company and The Main-Nottingham Investment Company, which we hereinafter refer to as The Main-Nottingham Company. Subsequently, plaintiff settled his claim against The ABCo Construction Company for the sum of $3,500, taking the usual covenants of release and promise not to sue. The ABCo Construction Company was dismissed as a party defendant, and the cause proceeded to trial on the issues drawn between the plaintiff and the defendant-appellant.

Plaintiff's amended petition, upon which he went to trial, averred that appellant was the owner of a commercial building located in the northern part of the City of Dayton and that on and prior to November 9, 1951, The Western and Southern Life Insurance Company, employer of plaintiff, had leased a portion of the building; that on said date plaintiff was in a hall on the main floor of said building which was provided by the owner thereof as a means of ingress and egress for the use of occupants of said building, including plaintiff, that he stepped upon a covering over a hole in the floor of the place where he entered, receiving certain injuries described.

The negligence charged against defendant-appellant was that it maintained a concealed pitfall in said hall, to-wit, the opening in the floor covered, as aforesaid. That it failed to warn plaintiff of the existence of the covered opening, failed to provide a cover which would support the weight of a person walking thereon, and failed to provide the hall with lighting which would render the covered opening visible to plaintiff.

The second amended answer of defendant admits that it was the owner of the property described in the petition under construction on November 9, 1951; that The ABCo Construction Company was the general contractor for the erection and completion of the building. Denies possession and control of the premises on the date set out in the petition; that it provided the hall as a means of ingress and egress for the use of occupants or the plaintiff; specifically denies the negligence charged against it and generally denies other allegations of the amended petition.

The second defense was a charge of contributory negligence against the plaintiff. The third defense charges assumed risk and the fourth defense avers that The ABCo Construction Company was in complete and exclusive control and management of the room where the plaintiff fell through the floor and that plaintiff had settled with said corporation for his claim against it and that said settlement was complete and adequate compensation and satisfaction of plaintiff's claim.

The reply was a substantial denial of the affirmative defenses of the second amended answer.

Certain facts are either admitted or uncontradicted. Plaintiff was a district manager of The Western and Southern Insurance Company, stationed in Dayton, Ohio, which company had in 1950, prior to the beginning of construction of defendant's building, leased from defendant certain quarters on the second floor, southeast corner of the building which was under construction on and prior to November 9, 1951. Plaintiff, as a representative of his company, visited the site of the new building while it was in process of construction two or three times a week. Prior to November 9, 1951 probably a week before, plaintiff's company had been notified that its leased quarters were ready for occupancy and that it could move on that date. Plaintiff does not testify who gave the notice to his company but Gerald H. Wilks, a witness for the defendant and assistant secretary and director of ABCo and Main-Nottingham Companies, says that he notified plaintiff's company that the building was ready for its occupancy. Certain furniture of plaintiff's company was moved into its space either prior to or on November 9, 1951.

The defendant company, the owner of the building, had engaged The ABCo Construction Company to erect the building and it was not completed on November 9, 1951, although at least one other occupant than Western and Southern had moved or was moving into the building. The ABCo Construction Company and the defendant had the same secretary and director; also the same president, Arthur Beerman, who was on the premises during the time that the building was under construction, and on occasions when plaintiff visited the property. In October, 1951, Mr. Beerman was taken ill. The ABCo Construction Company had a general superintendent on the site of the building by the name of Feig.

On the afternoon of November 9, 1951, plaintiff entered the building preparatory to unloading certain office supplies from an express truck, then stationed on the west side of the building. There is some testimony to the effect that this truck was first on the east side of the building. There was a main entrance to the building on the west side thereof, but on the day of the accident it was closed. Plaintiff entered the building through a small door to the north, on the west side of the building, moved into a small room about 4 1/2 x 8 1/2 feet, went up to the main hall on the ground floor, then on upstairs to the leased quarters and brought some of his associates back with him over the same route that he followed going up to his company's quarters. These men were preparing to move the supplies and, as one moved into the room with supplies, plaintiff, who was stationed therein, on request, stepped back to make room for the man with the supplies and in doing so, fell through a hole which was about 2 1/2 feet wide by 3 1/2 feet long, covered by plasterboard. Plaintiff fell some 9 1/2 feet into a basement, landing on his back and head, and suffered severe injuries. The plasterboard was of insufficient thickness or structure to hold the weight of plaintiff.

Some...