Ziegler v. Rice

HAMILTON, J. These allegations fail to state a cause of action against Ziegler. Conceding that Ziegler agreed with Leila Rice as part of the contract of rental to repair the steps, Maggie Rice could receive no benefit from the contract, nor any rights thereunder. This is not a case of the use of a common stairway or common way. Neither is it an action by a member of the public for maintaining a public nuisance. Under the law, if the plaintiff had received her injuries through a public nuisance, the agreement by Ziegler to repair the steps would make him liable; likewise, in the case of a common way. There is no allegation in the petition of that character. The substance of the petition is, as above stated, that Ziegler failed to perform a contract with a third person to repair the steps. As a result of his failure to perform under the contract the steps were left in bad repair; that she going on the steps fell on the defective steps and was injured. There is no allegation of privity between the plaintiff and defendant, and no evidence is produced to establish such a privity. The law of Ohio in actions of this character is settled by the cases of: Burdick v Cheadle et, 36 Oh St, 393; Shindelbeck v Moon, 33 Oh St, 264; Shinkle, Wilson & Kreis Co. v Birney and Seymour, 68 Oh St, 328; Stackhouse v Close et, 83 Oh St, 339; Goodall v Deters, 121 Oh St, 422. Under authority of these cases, our conclusion is that the petition does not state a cause of action against the defendant, but since the petition is not challenged by demurrer or in the answer, we pass that point. We conclude that the court erred in overruling the motion for an instructed verdict in favor of the defendant at the close of all the evidence, and erred in overruling the motion for a new trial. The law of the case requiring judgment in favor of the defendant, this court will enter the judgment that the Court of Common Pleas should have entered. The judgment is reversed and judgment is entered here in favor of the plaintiff in error, Ziegler. ROSS, PJ, and CUSHING, J, concur.