
    No. 514
    KNAPP v. SCHWARTZ
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 5227.
    Decided March 20, 1924
    703. LANDLORD AND TENANT — Landlord is liable for his negligence in failing to keep in repair such premises as have not passed by lease to the possession and control of the lessee.
    Middleton, P. J., Sayre and Mauck, JJ., sitting
   MAUCK, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Alice Schwartz, a minor, by her mother and next friend brought an action for personal injuries against Knapp. The mother leased a suite in an appartment owned by Knapp, which had a second story porch used by the mother in common with other tenants. Alice Schwartz was leaning against a railing on this porch which broke by reason of its decayed condition causing her to be thrown to the ground.

The petition alleged that the defendant “did obligate herself to keep in repair such porch”; the answer admits that the porch “was not demised to any tenant.”

The trial resulted in a judgment for Schwartz. Knapp prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1. The allegation in the petition quoted above was not based upon contract, but was pleading a legal conclusion and therefore sur-plusage.

2. The answer admits the porch was never demised and therefore remained in Knapp’s control and he is liable to tort for his negligence in failing to keep it in repair.

3. Neither the record nor the large verdict warrants a reversal of judgment.

Attorneys — Scott & Bissell, for Knapp; Harry G. Fuerst and Anderson, Lamb & Jenkins, for Schwartz; all of Cleveland.

6. Where “submitted” plans are of such a character that a building could not be erected therefrom, the issuance of a permit was beyond the power of the Building Commissioner and invalid.  