Helms v. James Dickey Post No. 23, American Legion, Inc.

Zimmerman, J. The subject of these appeals has been adequately discussed and treated pro and con in the relatively recent cases of Smith, Admr., v. United Properties, Inc., and Schilliger v. Graceland Shoppers Mart, Inc., 2 Ohio St. 2d 310, 209 N. E. 2d 142, and further amplification would be superfluous. A majority of this court as now constituted with its regular complement of judges agrees with the dissenting opinion in the Smith and Schilliger cases to the effect that no liability rests on the owner or occupier of private premises for minor imperfections therein (here almost minimal in extent), which are commonly encountered and are to be expected and which are not unreasonably dangerous, representing “trivial departures from perfection.” Otherwise, such owner or occupier would be placed in the position of an insurer, and the law does not go that far. Judge Herbert’s dissenting opinion contains an eloquent plea for the right of trial by jury, but such right may be and often has been denied where it is manifest from the pleadings or otherwise that no jury question is presented. Neither public interest nor the right of either party is promoted by placing a contest before a jury where nothing is involved but the application of the law to a state of facts conclusively established. Cincinnati Gas & Electric Co. v. Archdeacon, Admr., 80 Ohio St. 27, 88 N. E. 125. And as Judge Stephenson remarked in the case of J. C. Penney Co. v. Robison, 128 Ohio St. 626, 634, 193 N. E. 401, 404: “We agree that the right of trial by jury is guaranteed to all citizens by the Constitution of Ohio, and it cannot be invaded or violated by legislative act or judicial decree; but all this does not mean that all cases, regardless of evidentiary aspect, must be submitted to a jury. Under our law it is just as pernicious to submit a case to a jury and permit the jury to speculate with the rights of citizens when no question for the jury is involved, as it is to deny to a citizen his trial by jury when he has the right.” [63] As a majority of this court now views the matter, the position taken by a majority of the court in the Smith and Schittiger cases represents a distinct departure from the position theretofore adopted and followed by this court relative to slight imperfections in areas traversed by pedestrians, as set forth by Judge Middleton in Kimball v. City of Cincinnati, supra, as follows: “It is the judgment of this court that the condition of the sidewalk here under consideration must be considered a slight defect which, as a matter of law, did not form a basis of a charge of negligence on the part of the city. Consequently, there was no question of fact to be submitted to the jury. * * *” (Emphasis supplied.) Other cases decided subsequent to the Kimball case are in accord. See O’Brien v. City of Toledo, 167 Ohio St. 35, 146 N. E. 2d 122; Gallagher v. City of Toledo, 168 Ohio St. 508, 156 N. E. 2d 466; and Kindle v. City of Akron, supra (169 Ohio St. 373, 159 N. E. 2d 764). The judgments of the Court of Appeals are reversed and those of the Court of Common Pleas are affirmed, and the Smith and Schittiger cases, supra, are overruled, except the syllabus thereof. We do not disapprove or disturb the syllabus because we recognize that there may be instances of defective surfaces used by pedestrians or vehicles to which that syllabus could well be applicable. Judgments reversed. Taet, C. J., Matthias and O’Neill, JJ., concur. Herbert, Schneider and Brown, JJ., dissent.