*1 purchase of such decedent, all surviving spouse said is entitled appraised fixed value as property in her at the described appraisers. entry may appropriate be drawn. An Plaintiff-Appellee, LOGSDON, INVESTMENT v. MAIN-NOTTINGHAM Defendant-Appellant. COMPANY, County. District, Montgomery Appeals, Second Ohio May 22, 1956. Decided No. 2362. *2 McDaniel, Dayton, By Hugh Altick, Counsel, plain- H. Altick & of
tiff-appellee. O’Hara, Dayton, By Curtner, Brenton & Clifford Curtner, R. of defendant-appellant. Counsel, for (CONN DEEDS, JJ, District, sitting by of designation the Sixth District.) the Second in OPINION HORNBECK, By J: questions appeal of law from is an entered of in verdict behalf defendant a of the sum appeals. $10,000.00. Defendant following assigned: errors are Overruling Court Errors of the Motion for Directed 1. Close Verdict of the Evidence: proof (a) as to Plaintiff-Appellee the burden of failed to sustain alleged negligence Amended Petition. as of Defendant (b) alleged proof that the burden Plaintiff failed to sustain ingress hallway provided common common occurred accident or egress under the lease. (c) control to sustain burden failed Plaintiff creating pitfall, that one existed. room, notice hidden proxi- (d) risk, assumed the established Plaintiff evidence injury. mately resulting in his (e) guilty contribu- established The evidence resulting directly proximately law, tory negligence, as a matter fall. and Defendant’s of Plaintiff’s Court at the Conclusion 2. Errors of the in— Evidence (a) negligence allegations Refusing from the amended to strike petition. (bj Overruling at the close evidence demurrer plaintiff’s case. ground (c) departure, Overruling variance and to non-suit surprise. (d) specifications Overruling remove motion jury consideration. (e) Overruling to dismiss for reason the motions pri- Company was the defendant ABCoConstruction established evidence plaintiff. marily had effected settlement liable (f) allegation Overruling *3 to from the to motion remove injuries. Speculate Permitting Jury in to In- Erred 3. Court Estoppel. Agency by ference of of Amendments of the Matter the Plead- of the Court 4. Errors ings. Rejection in the and Evidence the Court Admission of Errors of 5. Prejudicial to Defendant. Giving Special Trial Court in the and Instruction Nо. 6. Error Special Refusal to Defendant’s Instructions Nos. Give 1 of Plaintiff and 9, 11, 12, 3, 4, 6, 7, and 16. Charge Jury to General of the Court Its on— 7. Errors (a) (b) (c) (d) emphasis by estoppel Agency and thereon. contributory negligence. to establish Burden invitee. An charge respect proof. with to burden to medical Omission charge requested respect (e) ingress with to to and Omission egress. (f) charge respect on terms of the with lease to to occu- Omitted pancy. charge obligation (g) to define of owner as to condition Refused premises. charge (h) that room was not intended for to common use Refused ABCo. for workmen of but tenants (i) of control of submit issue room. to Refused (j) issue of noticе defendant. Refused to submit (k) regard building to hazards of to instruct with Refused construction. (l) assumption issue Refused to submit of risk. (m) agency respect of ABCo and Refused submit to to Sub-contractors. (n) negligence charge, on Refused to sole of ABCo. (o) secondary negligence. primary to submit issue of Failed Pleadings Define Issues Raised 8. Court Failed to the Evidence. 9. That was Excessive and Rendered under Verdict Passion Prejudice. Jury Speculate Damage 10. as to the Permitted for Injuries Directly Proximately Evidence to be not Shown Probable Result from the Accident. Overruling Judg- Errors of the Court in Defendant’s Motion for Rendering Judg- ment Non and for Obstante Veredicto a New Trial and for Plaintiff. ment appreciation assigned The facts essential to an the errors are that damages personal injuries against his instituted action Company Main-Nottingham and The ABCo Construction Invest- Main-Nottingham hereinafter ment which we refer to as The Company. Subsequently, plaintiff settled claim The ABCo Company $3,500.00,taking Construction for the sum of the usual cove- promise nants of pany not to release sue. The ABCo Construction Com- party defendant, proceeded as a dismissed and the cause trial on the issues drawn between the appellant. and the defendant- upon petition, amended Plaintiff’s which he went trial, averred building was the owner of that northern a commercial located Dayton part City prior and that on and to November 9, 1951, plaintiff, Life Company, employer the Western Southern Insurance portion building; plain- leased a that on said date provided hall on the main floor said tiff was which was ingress egress as a means of the owner thereof for the use of building, including occupants covering plaintiff, stepped upon of said that he place over hole floor entered, receiving where he injuries certain described. charged against defendant-appellant was that pitfall hall, to-wit, in said opening a concealed maintained covered, as aforesaid. That it floor failed warn of the exist- opening, рrovide of the covered failed to ence support a cover which would weight person walking thereon, provide failed lighting which would render opening hall with covered visible to *4 plaintiff. amended answer of second The defendant admits that it was property the described the the owner on under construction 9, 1951; that the Company November Construction was the completion the erection general contractor and building. of the out premises date set the possession on the and control Denies egress ingress and provided as a means petition; the hall it the for the use of that negli- specifically occupants plaintiff; denies or the allegations generally gence charged against other denies it and petition. amended against contributory negligence a The second defense was charges the fourth risk and plaintiff. assumed The third defense complete Company inwas Construction that The ABCo defense avers management room where and exclusive control and corpora- said settled with fell that had the floor and complete was settlement it that said tion for his claim plaintiff’s adequate compensation claim. and satisfaction reply defenses a denial the affirmative was substantial the second amended answer. was Plaintiff are admitted or uncontradicted. either Certain manager Insurance a stationed and Southern district of The Western prior company 1950, Dayton, Ohio, had building, beginning from defendant leased of construction of defendant’s building quarters floor, corner second southeast certain which 9, prior Plain- November construction on and 1951. under company, new tiff, building representative the site visited process three times two or of construction while it was before, plaintiff’s probably 1951, a week Prior November week. ready quarters company been notified its leased had that occupancy testify does not date. Plaintiff it could move Wilks, gave company witness to his but the notice Gerald H. secretary and director of ABCo for Main-Nottingham Companies, says defendant and assistant company plaintiff’s he notified ready building occupancy. furniture of for its Certain space prior company plaintiff’s to or on No- moved into its either vember engaged company, building, had defendant the owner building Company erect Construction The ABCo occupant although completed 9, 1951, least other on November one moving building. had into the and Southern moved was than Western Company Construction the defendant had same secre- The ABCo tary on tion, director; Beerman, president, also the same Arthur who was building during premises time was under construc- Ocotber, property. on occаsions when visited the Company was taken 1951, a Beerman ill. ABCo Construction building by general superintendent Feig. on the site of the the name of of November entered afternoon the build- On unloading supplies ing preparatory express certain office building. truck, side of on the west then stationed There some testimony to effect that was first truck on the east side of building. There was main entrance the west the side day thereof, of the accident it but was closed. Plaintiff building through north, a small door to the the west entered building, feet, into small moved room x about 4-% 8-% side *5 up went ground upstairs floor, main hall on the on then quarters brought leased some of his associates back with him over going up company’s quarters. same route that he followed to his preparing These the room supplies men and, were to move the as one moved into supplies, request, with plaintiff, therein, who was stationed stepped so, supplies back to doing make room for the man with the and in through by long, fell a hole which about wide feet was feet 2-% 3-V2 by plasterboard. covered basement, fell Plaintiff some feet into a 9-% landing injuries. head, plaster- his back and and suffered severe board was weight of insufficient thickness or structure to hold the plaintiff. dispute, upon plaintiff’s Some facts are in but version That he are: any did not at time Company; know The ABCoConstruction it that was building cоntractor; the relation of Beerman or to The Wilks ABCo Company; Company that he first learned of the after his fall. knowing That, from company Mr. Beerman to be the head of the defendant plaintiff’s company quarters, plaintiff had leased dur- its ing building the time that he was at the had dealt with Beerman Mr. complete charge the belief that he was in construction; that he had Feig plaintiff introduced struction building, Feig Mr. and told him that was con- superintendent and that another individual at the site of the Superintendent who was known to be of Construction before Feig, plaintiff had instructed that if he wanted information to con- Feig. appears sult employ Mr. that men who of ABCo were to do sоme quarters—placing work for Western and Southern in its partitions, etc.,—although said, appear we have does that plaintiff any separate knew of relations between ABCo and defendant company. day plaintiff accident, On by phone had been called his express downtown office and informed that an truck was at the site building supplies to be unloaded. That he went to the new building, hallway completed, knew the floor was not and was told Feig, permitted Mr. any respect “We were not to use the arcade floor in morning.” say Plaintiff and at least one of his witnesses that the hallway Terrazzo floor in the was construction, under and men were working day on it the of the accident. This is denied the contractor job laying floor, says completed who had the this who it was day ready 4th day or 5th of November and was for use one thereafter. tarpaulin hung A over was the front Prepara- entrance on the east side. tory plaintiff inquired building, to an entrance into the Feig, of Mr. told him that he should use the entrance the small door Feig side, opened on the west unlocked the door and thereafter just placed cement blocks certain inside the door to make access easier. opened room lighted the small into which this That door was open daylight from the door. That had not been into Feig it, before the time Mr. room dirеcted him to use and did not see the covered hole. Beerman, Feig, Neither Mr. nor the individual whom as Superintendent prior Construction witness, identified by plaintiff to them and thus and conduct attributed the statements directly were not denied. testimony supporting that The ABCo Defendant asserts and effers complete Company Construction had the contract to erect building defendant; it was not finished when Construction, hurt; Feig, Superintendent sole employ building day ABCo; of the accident access hung tarpaulin entrance; was could have been in from the east that the made merely placed keep out the of the door at this front entrance cold, testimony after- and сould have been There lifted. day hurt, company moved some noon of the when quarters from the its effects into its and entered east. quarters way of his used to reach the rented company way occupants was not a common intended use of *6 knowledge plain- building; that had no that the hole provision lighting covered; of tiff fell had been room the hole that there was the by It is switch to the left of the entrance testified that door. day prior to, shortly plaintiff’s of, in the on the M„ and floor before by accident, x as as been covered 4’s or x late 11:30 A. 6’s extending Wigwam x from and 8’s the wall fashion to the floor beyond the hole. development unexplained evidence, true, if in the leaves covering. laying Serena, flooring, removed this the Mr. explaining placing hole, the of the lumber over the after significant made this body there, “Well, any if statement: wanted to use that door they planks.” appears plaster- have to remove those would that the covering placed by Kinderdine, had been over the hole board several days accident, planks. says “everybody before the the He as room,” evidently meaning small all used the if he closed the door to the the wired says the workmen. When asked day covering small room on the he left after hole, “No, he don’t think we answered: I think the did. I door was back, right up because backеd the truck to the I door.” also He working steps landing men there were of the west to the hallway in the arcade. groupings assignment The five first of error are directed to overruling of defendant’s motion for the the directed verdict at the close of evidence, plaintiff for the reason that failed to sustain the burden of proof petition; of the averments of his that the accident occurred in a hallway; proof common failed to sustain the burden of as to the control room, creating pitfall, the of the existed and that hidden or of notice that one the established the assumed the risk contributory guilty negligence and was as a matter of law. say juncture, At this wе are satisfied to that the established go jury, against any him entitled to the case which as of the fore- going assignments assignments of error. We will discuss these in other opinion. aspects later this group second of errors is directed the to: refusal of the court allegations from the to strike petition; overruling amended case; to the plaintiff’s demurrer evidence at the close of overruling grounds motion to non-suit departure; vari- specification negli- surprise; overruling anee and gence motion to remove jury overruling dismiss for the reason motion to liability primary Com- Construction the evidence established company pany with that a settlement and that had effected jury allegation overruling the the as to to remove from a motion injuries. certain permitting assignment is court erred in of error third by agency estoppel. jury speculate inference controlling upon This is If failed the material issue. inconsequential. assignments The court in- issue, are this structed other all apparent subject authority ostensible agent, of an then said: agent may authority principal as be conferred “This to act by affirmatively intentionally, ordinary care, or lack of causes or or apparent agency. persons It is essential third to act on allows (1) clearly important principal be two held established: possessing agent public authority sufficient out to to question, knowingly permitted particular act in him embrace the act (2) person dealing having authority; and such good acting agent knew of the facts and faith had reason possessed agent necessary authority. believe that the believe The did agent by apparent power of an is be determined the act agent; principal responsible principal is acts agent apparent authority only within the acts of an where for principal the with the agent clothed his acts or conduct has himself agent’s authority appearance and not where the own conduct * *” * authority. apparent has created the exposition sound our the law on question subject supported presented the cases. The and is implicit findings in whether the facts verdict that agency was established. of defendant subject Stores, are Inc., Combs v. The Ohio cases Kobaker 326, opinion by *7 Store, Judge Abs a. Boston 65 Miller of The d. b. Court, this 676, 34; of the 1 in O. who cited Jur. Sec. Ap Inc., Evans, 153, Fields, Hughes, Oh and Rubbo 36 v. v. StOh application principle are its considered discussed in 2 S„ 1062,1063, 104, Jurisprudence, page and in 2 American C. Sec. Sec. J. it is where said: agent authority apparent same, of the the upon “The is is based authority by estoppel as the created elements the the same the agent’s deny authority; say, principal сorrelative, the is to to the two are principal estopped deny authority as the to inasmuch is the permitted appearance agent he authority has the because the thereby justifying party relying upon agent, the third the same as actually authority upon agent. though the conferred it were practically point.” (Citing all the on view cases been the has cases.) many opinion Judge Wagner in Zimmerman Johnson v. Provi page 590, says: Co., StOh sion by usually (agency estoppel) applied in those cases where “It is delay induced, extended, been has credit has been action has been occurred, obtained, change position has relianсe some other in the doctrine, might upon appearance authority. be in- as it That theory by upon plaintiff that one action, vocable has been led to in a tort rests rely upon appearance agency detriment. to his Hughes Co., Rubbo v. Provision St 138 Oh 178.” authorizing plaintiff developed justifying We hold that the application agency by estoppel. of the doctrine of plaintiff’s com- It must defendant knew that be assumed that pany might moving quarters November, 9th of be into its building and that fact would necessitate its entrance into the provide right expect for such had the to that defendant would move, an to with- learned of the notification entrance. When express knowledge contrary, reason to believe out that he would have company. defendant, his it came from the landlord of company, Beerman well as The ABCo was the head of defendant as position to Construction plaintiff. was unknown then, Beerman, direction, if and conduct led When acts Feig employee to of defendant believe that was the estopped deny agency job, acts which would it would be apparent Accepting plain- scope agent’s authority. be within the of the testimony, right do, informed tiff’s by Feig pose as the had the pur- him for that neither main entrance was available to unloading moving supplies company and that of his only entrance directed to use. was that which the any other It is true the record does not disclose that tenant or occupant used, use, or was the small room as a means of directed to building, portion and it entrance into the main of defendant’s ordinarily by plain- However, to be so that it was understood used. only way part building, be to the main tiff way day accident, therefore a common may and at the time of the plaintiff upon testimony from what did be inferred occur. right apparent, to enter the tenant of defendant is had full of, independent and he was an invitee of defendant as well as reason Feig. of, the direction of Mr. failing insists that court erred as- sumption which, motion, risk was withdrawn as a defense. principle danger arises is obvious or basic a when party against knowledge danger it is has whom invoked many The doctrine is well stated in then assumes risk. by appellant. Co., Y. Central cases cited Masters v. N. R. St 147 Oh syllabus: fourth brings person, obviously about a condition or a situation “A by voluntarily exposing dangerous to himself himself to hazard created injury thereby another, assumes the risk so created and relieves legal responsibility injury resulting for other of such such exposure.” plaintiff, prospective passenger, attempt- this cited case moving injury. experienced ing train and suffered He to board was an *8 476 knowledge equal of the train crew rаilroad man with full circumstances to that boarding. relating held court to the hazard of such The assumption that there Contrast was an of law. risk as matter in in facts variance this case in There no with those the cited case. by appellant. Hunt, the law Dahnke v. in the other also cases cited See Ap Flynn 145, 164; 44; Corp., Pioneer 55 Oh v. Sharon Steel 142Oh St v. Ivory Ap 367; Co., Great Cincinnati Atlantic Pacific Tea Oh v. & 59 466; Co., Ap 514; Co., Baseball Gill Oh Oh Porter T. 152 St 62 v. T. Rd. Kresge Arthur, Ap Fay 386; Ap 179; Thrasher, Co. v. v. S. 69 Oh Oh S. v. 77 (2d) Holland, 158 F. 495. contributory properly The issue and was an may jury. by appellant submitted to the be The cases which are cited distinguished testimony of the on the No denies the witness facts. plaintiff injured. visibility in he in room was as to the extent of the which subject interrogated witness for One the defense was expression but his that from the room be dark did include fact would daylight there was in of the accident the the room the time open switch would And failure of to use a door. light may have fact that because afforded have been excused presence its v. The he did not know of location. Norwalk, The Bank of late case National Johnson Citizens modify analyses Oh St the facts 152 in discusses seems Flury McKinley Publishing House, St v. v. Central 118 Oh stepped any precaution, Niederst, plaintiffs, StOh where without 118 ways totally injured. held court into the into which darkened area and were notwithstanding that, case elevator shaft Johnson fact charge- only, plaintiff stepped was in semi-darkness he case, contributory negligence able with as matter of law. presented opinion cases discussed in the Johnson all other required precaution here was found not to exercise here. unacquainted moving he was into the room with which safety by implied judged in be view of the assurance of must invitation Feig. have examined the other cases and direction of We 72; Corporation, Leighton v. The Hower Oh Kauffman v. cited: 149 St Leighton St In the Trust Oh case The First Central step injured she fell which she said she when off although oblivious, her she had used a few minutes before fall. faulty injured case, employer of on a lessee was elevator Kauffman good when the was leased and when condition which was possession premises, installed; was out control landlord repair, agreement to maintain or and landlord was was no no there being way on on with the business or activities carried connected Recovery premises. denied. liability primary against Appellant here asserts that ABCo all, only secondarily, if at defendant. theory and the verdict is based liability theory joint defendant, of ABCo and and that liability pro reduced the amount tanto
settlement charged. the court wrong liability for lies where doers have acted in tort concert Joint of each of care purposе, the want of a where the execution common County of the other. Stark is of the want of care the same character as Brenner, more Agricultural Society two or Where Oh St 560. v. thereof, neglect persons duty common owe to another a common *9 liability. joint joint injured, and several tort the other is there is a affirming Gander, 43, Abs 329. 17 Oh St Canton Provision v. 130 Co. Seasley, Davis v. 18 607. Abs page 15, 607, Indem Following Seasley, The Globe 18 Abs Davis v. constructively nity 595, Schmidt, liable one holds that v. Oh St Co. 142 joint responsible actually feasors be not tort for cause not in and one are a tort injured paro although third to liable either delicto Ry. Co., 20, person. St cited Oh To like Larson v. Cleveland 142 effect. rеply brief. may Upon plaintiff’s and defend- both ABCo it be said that case Admittedly, building. exercising ant control of defendant’s some acting Feig jury acting that also was find he The could was ABCo. secondary primary question of for the liability In situation no defendant. joint actively participate in tort are arises, since all who Casualty Company, Maryland 142 Oh St tort Co. Frederick feasors. v. Cheadle, early, leading Syl. Appellant 603, of Burdick v. case cites the 3 Mattison, 7, 393, who was Oh St 8. was customer 26 Plaintiff injured Hunt, defendant, was by Plaintiff sub-lessee of lessee of Cheadle. Cheadle. falling improperly constructed shelves which had been damage for his look Mattison held that must to Court pointed damagеs persons general is, claim rule who that “The that out dangerous place, they in which on they that into the account were invited person remedy injuries, seek their received must jury right case, to find had the that In invited them.” the the instant ABCo, defendant, into the small room. well as invited 614, Ripple Mahoning Bank, Oh the land- National 143 St In v. private office, room, sued no over lord who was retained control holding. injuring plaintiff. plastering v. fell, Same Goodall which Deters, Cleveland, 94, holds Oh St Oh St Bello v. 106 121 432. highway solely dangerous abutting condition in a is owner who created injured plaintiff. city primarily to with owner releases liable Settlement secondarily which was liable. urged there is variance between аverments It is negli- proof. assigned it is not and the amended gence agent invited defendant’s directed or to enter the testimony competent proba- true, This is but the small room. charged. following cases tive cited variance, opinion by to establish our do not its con- Lennox, Megrue 479, al, negligence charged St et v. Oh tention. 59 a fence failure to maintain sufficient turn was a stock. Evidence only open gate. through that stock entered In Eureka showed Fire Co., Baldwin, 368, et Ins. al v. it is held that and Marine 62 Oh St pleaded of conditions the contract not not of waiver establish does performance cited, Hisinger of all Other conditions contract. cases Trickett, 286; Humiston, Palmer 401, St et al present 86 Oh St v. Oh do v. 87 not question. germane our Assignment rejection No. 5 directed to the admission and experienced judge evidence is in our without trial merit. carefully properly rejection controlled the admission rulings prejudice evidence and in the no to the defendant. resulted Assignment giving plaintiff's special No. 6 refers to the instruc- tion 4, refusing give 3, No. special 1 and defendant’s instructions Nos. 7, 8, 9, 11, special charge Plaintiff’s related No. 1 agency by to the law estoppel, and was sound. special charge Defendant’s is too instructed No. restrictive. No. 4 jury, the found east and qualification, without on the date of the accident it provided passable hаllway that defendant from the usable hallway entrance of the arcade the center and to the elevator upstairs portion, for the use of The Western and Southern Life In- surance This of in employees, and its should find the defendant. give fails to consideration the effect of the statement entrance to the the room injured. may have been a fact that the east hallway entrance used, plain- could but if stairs have been used, good tiff believed and had reason to believe that it could be so Feig, plaintiff reason of the statement of would not be bound actual situation. right No. 5 incorrect that it excludes a to find that *10 plaintiff right believe, ordinary had thе to until in the of exercise care he he otherwise, knew says that there be a floor in the room would safe he was directed to enter. responsive development. No. was not to the factual highly improper require finding No. is7 because it would a for the jury plaintiff defendant if the found that the room in which injured, way, completed any part or area been not or that building had not been turned over to the defendant. general No. is conditions, 8 too in that it includes “existence of other alleged petition.” as general, No. 9 also is too as is No. 10. proposition applicable No. is11 not a sound of law to the facts developed. permits finding jury No. 12 for the if defendant found place dangerous where the fell was “in a condition.” Request precludes finding No. 14 for the on the doctrine agency by estoppel, of as does No. 15. principle primary secondary liability No. 16 based on the of and Assignment questions general of error No. 7 of correctness charge special agency by estoppel, proof reference to burden of contributory negligence, of the issue refusal to submit the issue of risk, assumption charge negligence ABCo, of to on the sole of to submit primary secondary liability. issue all, We have discussed nearly propositions all of these obligation heretofore. It is not the judge negative aspects proof the trial to length and at which, found, on situations would absolve the defendant li- ability. procedure unnecessarily Such would encumber the record jury deciding of no to the be issues. assistance material and determinative judge properly charged trial as to the essentials nothing verdict; proof him to to entitle of less will be to made sub-headings to support several more There are the verdict. appellant against assignment, without to we hold as issues; comment, Assignment Failure to define the we do on No. passion prejudice; 9, Jury permitted rendered under excessive and Verdict was injuries damages speculate as to for shown to directly probable proximately from the acci- result to evidence be judgment overruling dent; non motion for Errors defendant’s rendering judgment for veredicto, and new trial and obstante plaintiff. assigned given to the numerous errors careful consideration We have protected its It is evident and discussed most them. pa- judge considerate, every stage of The trial record at tient the trial. rights grounded Defendant’s on the law of the and well case. assigned fully protected. made. find no error well We were judgment bewill affirmed. DEEDS, JJ, concur. CONN
No. 2362. June Decided OPINION By THE COURT: application rehearing. Although our rules now Submitted briefly application, provision for such we consider makе no up. set several causes fully consider: Failure I. assignment Assignment 7-j, of error of error re- No. 2 No. judge give Special relating Instruction to notice. fusal of the trial No. 8 páge opinion, considering we state we are the five On assignment error, groupings the first one which was “or existed that the one established as- notice sumed of contributory guilty the risk and a matter ours.) (Emphasis law.” assignments page 13, these we held that not well On made as right jury. his case have submitted to the specifically question requi- discuss the did not is true that we defendant, generally but hold we did of notice near the end sites of held assigned opinion specifically no error was well We made. special relating instruction No. 8 that defendant’s notice was holdings properly are sufficient These refused. *11 finding assignments relating desired, entry, to the failure subject on the further notice to the court to the defendant presence supported. hole are not of the covered re-hearing application continues: finds, page decision, Feig 11 “This Mr. had no Court knowledge fell, covered; hole which the had been m., 2’s, had been covered 11.30 x or late as a. 2 x 6’s and and—‘as wigwam extending wall in from wall fashion to the floor x 8’s 2 yond be- ” hole.’ appellant part quoted This conclusion of is not exact. That is but supporting testimony a recitation of the claim of defendant and of оffered by it. Appellant again presses joint failure of the evidence to establish part Main-Nottingham proposition control on the ABCo. length, expressed respecting considered at our we views it. II. Counsel calls attention to our statement Beerman had Mr. Feig plaintiff. Appellant introduced tion, is correct in this conten- Mr. light However, and we in error in the statement. the variance is affect; subject, all of the evidence on the not such as right question agency by estoppel to have jury. (cid:127)determined Appellant excepts characterizing our the west entrance to the Main-Nottingham building entrance, urges as a main that the main misapprehension respecting entrance was east We no side. principal the entrances to the east and west and which was the entrance. eventually Both were intended public to afford tenants and the entrances building. Appellant page 6 states: page Feig opened “The Court on has said that ‘unlocked and placed just the door and thereafter certain cement blocks inside the ” door to make easier.’ access hyper-critical language us This seems to to be a criticism of the employed. subject record on is as follows: plaintiff: Q. open?” “Then what done after the door was “Right door, step under the there was about a A. 2 fоot and I (Feig’s) working attention called it to his and he had a fellow who was place project step two three cement blocks there for him to on.” “Qui per per Manifestly, alium facit facit se.” the fact that place placing a workman to the blocks instructed instead of them no testimony. makes difference whatever in the urges himself effect of the Appellant give application that we did not III. to the case Dallmer, holding 153 Oh St in our of Gedra v. joint liability for the as to the Main-Nottingham. a case made expressed subject. our view the law the We lengthy full, gave careful and consideration to We the manifold assignments original application of error the voluminous briefs of in our opinion, granting and find no substantial reason for the rehearing. will be denied.
HORNBECK, JJ, DEEDS, CONN concur.