
    No. 734
    WESTERN UN TEL. CO. v. NIXON
    No. 18682.
    Supreme Court
    Pending on motion to order Columbiana Appeals to certify.
    Docketed June 30, 1924.
    703. LANDLORD AND TENANT — Was the telegraph company -such a tenant of cellar, having such a control over the sam'e, as’to render it liable for defective condition of cellar door and cellar way?
    Attorneys — Francis R. Stark, Jos. L. Egan, Ireton & Sehoenle, for Nixon; Oscar W. Kuhn, for the Telegraph Co.; all of Cincinnati.
   This was an action for personal injuries brought by Nixon against the Western Union Telegraph Company. Nixon was .injured in 1920 by tripping over the handle of a cellar door closing the opening to a cellar under a building located in Middletown, Ohio. The building was two stories high; it had two storerooms fronting on the main street, one of which was occupied by the Telegraph Co., and there was a stairway between them leading to rooms on the second floor, and there were several other tenants beside the Telegraph Co. in the building. The cellar door was located outside the building.

The cellar way and cellar door had been constructed by the owner, Forster, several years before the Telegraph Co. became a tenant. The cellar was used by the Telegraph Co. for storage purposes, and was also used by a sub-tenant of the company, but no rent was paid to the owner for its use. There was no lock on the cellar door-and it was accessible to anybody on the street

The plaintiff claimed that the company was negligent in maintaining the cellar door in a defective condition. The case was tried to the court without the intervention of a jury and it found in favor of Nlixon for $4,000. The company prosecuted error to the Appeals. In affirming the judgment, this court held that the Telegraph Co. was a tenant and was in control of the cellar, and therefore was responsible for its defective condition; that the settlement with the landlord and the release of the owner was a release pro tanto only and that the tenant was not released from his liability. The issues before the Supreme Court are:

1. Was the Telegraph Co. a tenant of the cellar and cellar door and under any duty as to the public of keeping the door in good condition and repair and free from danger?

2. Was the settlement with the owner of the building a bar to an action against the Western Union Telegraph Co. ?  