
    Chiesa, Appellee and Cross-Appellant, v. Thomas, Jr., et al., Appellants and Cross-Appellees.
    
    (No. 2695
    Decided March 20, 1956.)
    
      Mr. Herschel Kriger and Mr. Jerry P. Hontas, for appellee.
    
      Messrs. Bay, Cope, Ketterer, Raley & Wright, for appellants.
    
      
      Motion to certify the record overruled, December 19, 1956.
    
   McClintock, J.

We will refer to the parties to this appeal as they were designated in the court below, to wit, Juanita F. Chiesa as plaintiff, and Harry A. Thomas, Jr., and Marcos G. Chimples as defendants. This cause involves two appeals, one by plaintiff and one by defendants.

The third amended petition of plaintiff says that at all times hereinafter set forth 305-307-309 Market Avenue South in the city of Canton, Ohio, was a two-story combination commercial and residential structure with commercial businesses on the first floor thereof and offices and residential apartments on the second floor, with access to and egress from the second floor by means of a stairway connected with a common passageway at the top thereof, which passageway and stairway were used in common by thé occupants of the offices and apartments in said building and others having business therewith; that the defendants were and are the lessees in possession of the entire building pursuant to a written lease between Mark Hambleton, the owner thereof, as lessor, and the defendants, as lessees; that the defendants were in possession and control of said stairway and second floor passageway; that the defendants knew of the extence of certain defective and dangerous conditions in the premises; that at the top of the stairway, on the second floor, there was a linoleum floor covering; that a defective and dangerous condition existed therein in that the same had become worn and torn; that the defective and dangerous condition thereof was not readily apparent to persons using the stairway and the passageway at the top thereof leading to the offices and apartments, by reason of the dim lighting provided therefor; that it was necessary to traverse over the linoleum since the stairway and passageway were the usual and principal means of access to and egress from the said offices and apartments; and that said defective and dangerous conditions had existed for a considerable period of time prior to the accident complained of.

Plaintiff says that on or about January 27, 1951, at or about 3:00 a. m., she was visiting one of the tenants of the defendants on the second floor of the building; that she left the apartment for the purpose of purchasing ginger ale for the tenant and guests, and as she approached the stairway her foot was caught in a torn and defective portion of the linoleum and she tripped over the same, which torn and defective portion was not readily apparent at the time; that she was precipitated violently forward and down the stairway to the street below, suffering the injuries hereinafter set forth; that she ivas unable to right herself and prevent the fall because of the defective condition of the stairway and the banisters; that she was at all times in the exercise of ordinary care for her own safety; and that the injuries she sustained were solely, proximately and directly caused by the negligence and carelessness of the defendants, in the following particulars, to wit:

1. In allowing the defective and dangerous conditions to exist in the linoleum floor covering and stairway after defendants knew of same.

2. In failing to inspect the linoleum and stairway to the end and purpose that defendants would have discovered the defective and dangerous condition thereof.

3. In failing to repair or replace the linoleum and to repair and replace the stairway.

4. In failing to warn plaintiff and others using the stairway and passageway of the dangerous and defective condition thereof.

5. In failing to furnish adequate lighting for the stairway and passageway.

6. In allowing said dangerous and defective condition, relative to the loose and broken bannisters, to exist after defendants knew of same.

Plaintiff says further that as she fell to the pavement at the foot of the stairway she suffered a violent blow upon her head and was rendered unconscious thereby and suffered a concussion of her brain; that she was taken to Mercy Hospital where she underwent medical and surgical examination and treatment; that she was unconscious for a period of three days and semiconscious for a period of a week; that she was required to and did undergo a surgical operation for the relief of pain in her head as the result of her fall, which operation consisted of a cutting out of a section of her skull and the removing from her brain of a blood clot which had been causing pressure thereon; that she remained bedfast in the hospital for a period of three weeks and was unable to return to her job for another five weeks, being generally confined to her home; and that the operation necessitated the shaving of her head, which subjected her to shame and ridicule until the hair grew back and which necessitated her wearing of a covering over her head at all times.

Plaintiff: says that in the fall she suffered bruises, contusions and injuries to her head, face, arms, legs, and body, and a general shock to her nervous system; that prior to the accident she was in good health and was regularly employed at the Bloomfield Company, earning approximately $42 per week; that as result of the accident and her injuries she lost initially eight weeks of work and approximately an additional week thereafter by reason of a recurrence of her headaches, causing a loss in wages of approximately $375; that her clothing was torn resulting in a diminution in the value thereof of $50; that she was required to and did expend and obligate herself for medical, surgical, and hospital services and for drugs the sum of approximately $1,150; that since the accident she has suffered headaches, dizziness, loss of appetite, difficulty in sleeping, pain in her ears and general weakness; that she has lost approximately 25 pounds in weight; that she believes and therefore avers that she will be required to undergo additional medical and surgical treatment in the future; that she has suffered a permanent impairment of her earning capacity; that her life expectancy has been shortened; and that her injuries, as aforesaid, are permanent and incurable.

Plaintiff prays for judgment against the defendants in the sum of $51,575 and her costs, and for such other relief to which she may be entitled.

To this petition the defendants filed an answer admitting that 305-307-309 Market Avenue South was a two-story combination commercial and residential structure with residential apartments on the second floor and with access to and egress from the second floor by means of a stairway connected with a passageway at the top thereof, which passageway and stairway were used in common by the occupants of the apartments and by those having business with the occupants. Defendants admit that they were and are the lessees of said building and aver that the apartments on the second floor of the building are rented to subtenants.

Defendants deny that said stairway and passageway were in a defective and dangerous condition as alleged in the third amended petition, and aver that the condition of the stairway and passageway was well known to the plaintiff at and prior to the time of the accident.

Defendants admit that the plaintiff received some injuries on or about January 27, 1951, but deny that such injuries were caused by the negligence and carelessness of the defendants in any of the particulars alleged in the third amended petition or in any particulars whatsoever and aver that such injuries were caused directly and proximately by the carelessness, hcedlessness and negligence of the plaintiff in her conduct prior to and at the time of the accident.

Defendants deny generally each and every allegation in the third amended petition except such as are specifically admitted to be true, and pray that the plaintiff’s third amended petition be dismissed and that they go hence without day, with their costs.

For her reply to the answer plaintiff denies, generally and specially, each and every allegation therein except such as admit the averments of her petition.

The cause came on for hearing, and the jury rendered a verdict in favor of the plaintiff for the sum of $18,380. A motion for new trial was filed by defendants, which reads as follows :

“Now come the defendants and move the court to vacate and set aside the verdict of the jury and the judgment herein and for a new trial for the following causes which materially affect the substantial rights of these defendants, to wit:
“1. For irregularities in the proceedings of the jury and matters occurring during the trial by which the defendants were prevented from having a fair trial in this, to wit:
“(a) Improper communications with the jury by Mrs. Hontas, wife of one of counsel for the plaintiff;
“(b) Irregularity in furnishing to the jury an exhibit which was refused admission in evidence and which made specific reference to insurance coverages required of the defendants ;
“ (c) Irregularity by the jury in i-eferring to definitions in the dictionary in the judge’s office pertaining to the case and the court’s charge during a period of recess during the jury’s deliberations.
“2. The verdict is not sustained by sufficient evidence and is contrary to the manifest weight thereof;
“3. The verdict is contrary to law;
“4. For error in refusing to give to the jury before argument certain special requests submitted by the defendants;
“5. For error in giving to the jury before argument certain special requests submitted by the plaintiff;
“6. For error in refusing to charge the jury as requested by the defendants at the conclusion of the court’s general charge;
“7. For errors in the court’s general charge prejudicial to the defendants;
“8. For errors in instructing the jury in response to a question propounded by them and in overruling motions made by the defendants at that stage of the proceedings;
“9. For error in improperly admitting evidence offered by the plaintiff and objected to by the defendants;
“10. For error in excluding evidence offered by the defendants ;
“11. The verdict was the result of sympathy, passion, and prejudice;
“12. For error in overruling the defendants’ motions made at the conclusion of the plaintiff’s case for a directed verdict and for orders striking the several specifications of negligence from the third amended petition;
“13. For error in overruling the defendants’ motions made at the conclusion of all of the evidence.
“14. For the several errors of law occurring at the trial and to which exceptions were taken by the defendants at the time, and for other rules manifest from the face of the record.”

Said motion for new trial was sustained, and the defendants also filed a motion for a judgment notwithstanding the verdict, which was overruled.

Thereafter, plaintiff appealed to this court from the order of the court granting a new trial. Plaintiff claims that the appeal should be dismissed for the reason that no proper assignments of error have been filed. At the oral hearing, this court considered that feature of the case and overruled the same. We think there is no merit whatsoever to this claim.

The errors assigned by plaintiff in her appeal to this court are as follows;

“1. The trial court erred to the prejudice of this appellant in accepting and in considering evidence as to events occurring within the jury room during deliberations of the jury in the absence of evidence aliunde;
“2. The trial court erred to the prejudice of this appellant in sustaining the motion for a new trial and in nullifying the verdict heretofore granted by the jury;
“3. The trial court erred to the prejudice of this appellant in abusing its discretion with reference to the foregoing matters. ’ ’

It is the opinion of this court that none of these assigned errors is well taken, for the reason that a communication to the jury in the form of an exhibit had been refused admission into evidence, in which communication the word, “insurance,” was used, which exhibit inadvertently was before the jury in its deliberations. This was clearly prejudicial error, and for that reason the appeal of the plaintiff is not well taken.

Defendants appealed from the order of the court overruling defendants’ motion for judgment notwithstanding the verdict, and claim that they are entitled to judgment in their favor for the following reasons:

“1. Upon the statements in the pleadings and upon evidence received upon the trial and defendants are entitled by law to judgment in their favor;
“2. The trial court erred in overruling the motions of the defendants for a directed verdict in their favor, which motions were made during the trial of the cause;
“ (a) At the close of the plaintiff’s case;
“(b) At the close of all of the evidence in the case, all parties having rested;
“3. An inference and presumption that negligence upon the part of the plaintiff directly and proximately caused and contributed to cause the injuries of which she complains appears from the plaintiff’s own testimony and the uncontradicted evidence submitted at the time of the trial, which inference and presumption were not rebutted, placed in equipoise, or counterbalanced by any evidence.”

It is questionable whether the ruling on defendants’ motion for judgment notwithstanding the verdict is an appealable order, for the reason that there was no motion for a new trial definitely directed to it. We cite and quote as follows from Jolley v. Martin Brothers Box Co., 158 Ohio St., 416, 423, 109 N. E. (2d), 652:

“Although its determination does not affect the end result in the instant case, a serious question arises as to whether an order overruling a motion for judgment notwithstanding a verdict is, in itself, a final appealable order, where there is no motion for new trial directed to such order and an overruling of such motion. This problem arises because of changes which in recent years have been made in the Appellate Procedure Act of this state.
“By Section 6, Article IV of the Ohio Constitution, effective January 1, 1945, only judgments and final orders may be appealed from to the Court of Appeals. Section 12223-2, General Code, effective September 30, 1947, defines a final appeal-able order as one which affects a substantial right in an action when in effect it determines the action and prevents a judgment. Clearly, the sustaining of a motion for judgment non obstante is a final order because it determines the action with a judgment. But the overruling of such a motion does not determine the action or prevent a judgment upon a verdict, which judgment will become final unless a motion for new trial directed to it is filed. If, however, a motion for new trial is filed directed to an order overruling a motion for judgment non obstante, which new trial under Section 11575, General Code, requires a trial court to re-examine the issues of law as well as fact, an adverse ruling on such motion for a new trial makes the order overruling a motion for judgment non obstante a final appealable order. It would, therefore, be better practice, if not in fact necessary, that a motion for new trial be lodged to an order overruling a motion for judgment non obstante and be overruled before such order becomes an appealable one.”

However, we will not decide this case on that question. As to the appeal of defendants from the overruling of the motion for judgment notwithstanding the verdict, the law on that subject is stated as follows in the Jolley case at page 428:

“In an appeal from an order overruling a motion for judgment notwithstanding the verdict, the question presented is whether the appellant was entitled to judgment as a matter of law. In such appeal the reviewing court cannot weigh the evidence ; neither can it pass upon such matters as misconduct of counsel or misconduct of the jury and similar matters which may properly be raised on motion for new trial.”

Paragraphs one and two of the headnotes of Blanc v. Farm Bureau Mutual Automobile Ins. Co., 72 Ohio Law Abs., 37, 129 N. E. (2d), 474, are:

“1. If, on either a motion for a directed verdict or a motion for a judgment notwithstanding the verdict, made by defendant, the defendant was entitled to a judgment as a matter of law, when giving the whole evidence its most favorable interpretation in support of plaintiff’s case, and such motion was overruled, then error prejudicial to the right of defendant has intervened and defendant is entitled to final judgment.
“2. In considering either a motion for a directed verdict or a motion for a judgment notwithstanding the verdict, the court has no right to weigh the evidence.”

Prom the record of almost 400 pages in the instant case we find some of the facts to be as follows:

The accident which is the subject of this lawsuit occurred during the early morning of January 28, 1951. On the evening before, the plaintiff, then age 24, stopped with her uncle and brother at the defendants’ tavern, where she had a few drinks and danced to the jukebox. She arrived about 10 p. m. and had one drink at the bar and spoke for about a half hour with Olive Waterman, an old friend and one of the defendants’ tenants in the upstairs apartment. She left Miss Waterman with the advice that she “would see her later” and joined her uncle and brother in one of the booths.

When her uncle and brother left the tavern about midnight, plaintiff went over to the Italian Club, a social club for persons of Italian ancestry, about a block away, where she drank a bottle of beer and danced to the jukebox. About 3.30 a. m. she left the Italian Club in company with an acquaintance for the purpose of visiting her friend, Olive Waterman, at her apartment. Before ascending the stairs she stopped at the defendants’ tavern and procured a bottle of whiskey from Zack Thomas, the bartender and brother of the defendant Thomas. Then she ascended the stairs and went to the rear of the building where she knocked on the Waterman door. Miss Waterman’s friend, Buck Knoll, who apparently lived there with her, opened the door after Miss Waterman had answered the knock with “I’ll be with you in a moment” and let the two in. The two men immediately poured themselves drinks from the bottle, but plaintiff asked Miss Waterman, who was still in the bedroom, whether she had any ginger ale. It appearing that she had none, plaintiff said that she would go downstairs and procure some. She left her coat and handbag in the apartment, walked down the hallway, but as she approached the stairway her foot caught in the linoleum or in a hole or worn spot therein and she was precipitated to the bottom, striking her head and suffering very serious injuries.

The plaintiff and Olive Waterman were friends for many years. Plaintiff had visited her in her apartment on other occasions.

Plaintiff and Olive Waterman spoke in a friendly fashion for a half hour in the tavern prior to the accident, and plaintiff left her with the advice that she would see her later that evening, surely an indication that she would call at her apartment.

When plaintiff knocked and spoke, Olive apparently recognized her voice and indicated that she could come in. She and her friend were admitted readily by Miss Waterman’s male friend, who proceeded to pour himself and the other man drinks from the bottle.

Plaintiff had a brief conversation with Miss Waterman before leaving. Plaintiff left the apartment only for the purpose of procuring ginger ale for herself and Miss Waterman and obviously intended to return, for she left her coat and handbag-in the apartment. The intended trip to the tavern below was for the mutual benefit of all of them — to procure ginger ale for the party in which all were to participate.

On the question of whether the plaintiff was a guest of a tenant and, accordingly, an invitee, we cite Davies, a Minor, v. Kelley, 112 Ohio St., 122, 146 N. E., 888, which holds in paragraph two of the syllabus:

“Where a porch and stairway leading thereto are provided, maintained, and controlled by a landlord for the use of several tenants of Ms building, and are thus used, he is, in general, liable for any injuries arising from Ms neglect to keep the same in proper repair; such duty and liability extend not only to the tenant himself, but also to members of his family, employees, guests, and invitees.” (Emphasis added.)

In conclusion, we are of the opinion there is some evidence in the record that the plaintiff was a guest of a tenant and, accordingly, an invitee; and for the reasons herein stated it is our opinion that the court below acted correctly in overruling the motion for judgment notwithstanding the verdict, and that none of plaintiff’s or defendants’ assigned errors are well taken.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Montgomery, P. J., concurs.

Putnam, J., concurs in the judgment.  