ON APPLICATION FOR REHEARING
Decided March 25, 1937
By THE COURTSubmitted upon application for rehearing. This application is in the first instance upon the claim that the court has misstated the evidence in certain particulars. We have examined this claim and though we do not concede it, we are satisfied that, if true, there was no misstatement of any fact *230which would have such material bearing upon the legal questions presented as to require any different judgment of this court.
It is also urged that we misinterpreted the law of the case. We followed Universal Concrete Pipe Company v Bassett, 130 Oh St 567 and Veechio v Veechio, 131 Oh St 59, both of which were relied upon by counsel for appellant. We made some observation of the omission to carry into the syllabus of Pipe Co. v Bassett the element of “failure to exercise any care” in defining wanton negligence. We also very carefully indicated that though it were a proper element in establishing wanton misconduct, the facts in the instant case would meet that demand.
Finally, a rehearing is urged because the court divided on the decision in this case and Judge Geiger, who concurred with the writer of the opinion did not sit at the oral presentation of the case. The result is such as may occur in any matter which is presented to the court for determination. We prepared for the eventuality of another judge and secured consent of all counsel for the new member of the court to participate without further oral presentation.
However, if anything of advantage to the parties or the court could in probability result from further consideration of this case on oral argument we would readily re-open it and permit re-argument, but the question is one of lav/ which each member of this court has carefully considered and no advantage would result in granting a rehearing.
The application will be overruled.
HORNBECK and GEIGER, JJ, concur. BARNES, PJ, concurs in denying the application.