.Dissenting Opinion.
HURD, PJ.(Dissenting)
The issues in this case were made by the petition, the separate answers of the defendants and the reply. It was averred in substance that the defendants owned, operated and controlled a side by side residence, one suite of which was occupied by the plaintiff and her family; that extending the width of the residence was a second-floor back porch which was enclosed by a wooden spindle railing several feet in height; that it was a common porch acqessible to and jointly used by the occupants of both suites; that the plaintiff was injured by a fall from the porch, due to the negligence of the defendants in-failing to keep the railing thereof in a state of repair. The defendants, by separate answers, admit ownership of the building in question but deny their control thereof; deny any negligence on their part and raise the issue of contributory negligence.
The trial court granted a motion of the defendants made at the close of plaintiff’s case, withdrawing the evidence from the jury and directed a verdict in favor of the defendants. The principal ground- of error assigned is that the court erred in so doing.
An examination of the record shows that the plaintiff produced testimony showing or tending to show substantially the following facts:
On Sept. 18,1943, plaintiff and her family occupied as tenants an up and down suite at 2587 Colchester Road in Cleveland Heights, Ohio, which was half of a side-by-side residence owned by defendants; the other half being occupied by another tenant, William Bowler and-family. On this-particular date the plaintiff went out upon the rear upstairs porch for the purpose of shaking out a bath mat on which some cleaning material had been- spilled and as she did so the railing of the porch gave way and she was precipitated to a cement pavement below with such force that her back was broken in two places and she sustained a fractured skull. It was later found that the railing around the porch was in such a defective condition and so weakened by rotting that it was in an unsafe condition, there being no evidence showing that such condition was known to the plaintiff before the accident.'
The porch in question extends across the rear of the *7building in back of the two suites. There is no railing or any other physical evidence of a division of the porch between the two suites.
The means of approach to the porch by both families is through bedroom doors leading from the rear of their respective suites. This porch was used in common by both tenants and their families.
The defendants had received actual notice of the need of repairs to the railing of the porch, given quite some time before the accident by the tenant of the adjoining suite, who told one of the defendants that the railing was defective and in need of repair. The defendants neglected to repair the porch railing, but made other repairs to the porch before the accident through the services of a repair man sent by them for that particular purpose. Plaintiff’s tenancy was under an oral lease on a month to month basis.
It would seem that the foregoing set of facts is susceptible of two reasonable inferences: (1) the absence of any rail or any physical division of the porch between the apartments of the occupying tenants and the fact that it was by them used in common according to the evidence, would tend to indicate that it was designed and built to be used in common by the tenants of the adjoining suites and, (2), that the defendants by making some repairs to the porch had exercised some degree of control.
Inasmuch as the motion was granted at the close of plaintiff’s case, the evidence of plaintiff stands uncontradicted. Therefore, the rule of law stated in the* comparatively recent case of Keesecker v McKelvey Co. 141 Oh St 162, is applicable, as stated at page 167 as follows:
“The rule is well established in this state that when the uncontradicted evidence discloses circumstances from which different minds may reasonably draw different conclusions, one favorable and the other unfavorable, to the claim of a party, the evidence should be submitted to the jury under pertinent instructions. 39 O. Jur. 807, Sec. 186; Nelson Business College Co. v Lloyd, 60 Oh St 448, 54 N. E. 471, 46 L. R. A. 314, 71 Am. St. Rep. 729, 6 Am Neg. Rep. 369; Hickman v Ohio State Life Ins Co. 92 Oh St 87, 110 N. E. 542; Vignola v New York Central R. R., 102 Oh St 194, 131 N. E. 357; Pence v Kettering, 128 Oh St 52, 190 N. E. 216.”
The subject of landlord and tenant relations has received considerable attention from the courts of Ohio. Prior to the decision of our Supreme Court in the case of Davies v Kelley, *8112 Oh St 122, the cases dealt only with instances where the tenant had full and exclusive possession and control over the property as set forth in the cases of Burdick v Cheadel, 26 Oh St 393; Shindelbeck v Moon, 32 Oh St 264 and the case of Stackhouse v Close, 83 Oh St 339 in which latter case there was an express reservation by the landlord to assume the responsibility of repairs. The first case in Ohio dealing with premises used jointly by several tenants was Davies v Kelley, supra, wherein a judgment for the plaintiff rendered by the Common Pleas Court was sustained and the Court of Appeals reversed.
There is a certain analogy between the facts in that case and the evidence as presented by the plaintiff in this case, as may be noted from the opinion of Matthias, J., at page 125:
“From the undisputed facts in the record it appears that the several apartments of a 20-suite apartment building owned by Mrs. Kelley were rented by her to various tenants without written lease, and upon an agreed rental, payable monthly; that although there was no express reservation by the landlord of control over, or responsibility for, any portion of such premises, or of the stairs or porches appurtenant thereto, it is clear that the porch and stairway in question provided'a rear exit for and wás used in common by the two tenants occupying adjoining second floor apartments; and that neither of the tenants occupying the two apartments for which such porch and stairway furnished the means of rear ingress and egress, had or exercised control thereover, but that during their tenancy the owner, through her janitor, who had charge of such building, did care for such stairway and porch.”
And at page 127 the following:
“The rule particularly applicable to a situation such as here presented is stated in 16 Ruling case Law, p. 1072 as follows: ‘So where premises are let to several tenants each occupying different portions, but all enjoying or using certain portions in common, such as the entrances, halls, stairways etc., of the tenements or apartment houses, the landlord is held to be in control and owes not only to his tenants, but to those lawfully on the premises as the servants, guests and customers of the tenants, the duty to exercise reasonable care and diligence to keep such parts in safe condition and for failure to do this he is liable to such servants, guests etc., injured in consequence of his negligence, and without fault on their part.”
*9And at page 128, the following
“In a situation such as the facts here disclose it is quite apparent that neither of the tenants could have exclusive control or exclusive use and occupancy, of the stairway and porch which served as means of rear entrance and exit for both apartments, and therefore that neither would have any responsibility to keep that portion of the premises, so necessarily jointly used, in repair and in proper condition for the use of the other. The occupants of these two apartments were several and not joint tenants of the owner.”
The court then reviews many cases from other jurisdictions including Weiding, v Penn. Mutual Life Lns Co. 95 Minn. 279, where it was held to. be the duty of the owner of a city apartment house renting flats therein to several tenants for housekeeping purposes, to exercise ordinary care to maintain the railing around the porches in a reasonably safe condition. This case was held in point on the facts. In the case of Farley v Byers, 106 Minn. 260, it was held that where a porch or stairway is used in common by the different occupants of a tenement house or a flat building, the landlord will be presumed to have reserved possession thereof for the possessión of all the tenants and is under obligation to all parties having occasion to use the premises to exercise ordinary care to keep the same in repair, the court saying:
“In 'the absence of a covenant to the contrary, possession by the landlord will be presumed of that portion of the rented premises reserved for the common use of all the .tenants.”
In the case of Prendergast v Ginsburg, 119 Oh St 363, the supreme court again affirmed the doctrine of Davies v Kelley, supra, and in discussion thereof cited 16 R. C. L. 1039, Sec. 558, wherein it is set forth that “the rule has also been applied to porches.” Citing Hinthorn v Benfer, 90 Kan. 731, 136 Pac. 247; Smith v State, 92 Md. 518, Widing v Penn Mutual Life Ins Co. Supra; Farley v Byers, supra. These cases seem to hold generally that where there is a joint and common use of a porch or areaway by two or more tenants and evidence of repair by the landlord, a question of fact is presented for determination by a jury as to reservation of control by the landlord' for the purpose of making repairs, in the absence of any agreement on the subject to the contrary.
Our Courts of Appeals have had two cases since Davies v Kelley, namely, Klein v Stewart Admr. 25 Oh Ap 393; Coventry Leasehold Co. v Welker, 43 Oh Ap 82.
*10In the first mentioned case the landlord was held liable for a structural defect in a stairway used in common and in the second case the court again held the landlord liable for a defective stairway used in common. The issue raised in the latter case was that the stairway in question was an inside stairway to which the landlord did not have equal means of access to the basement stairway with his tenants because it did not form a means of ingress or egress from and to the building but could only be reached by doors leading from each storeroom occupied by the respective tenants.
In that case it was held that the common pleas court had erred in directing a verdict and upon a remanding of the case for retrial a judgment in the sum of $12,000.00 was rendered for plaintiff and was sustained by the Court of Appeals after the trial court had granted a remittitur to the sum of $7500.00.
In the case of Sullivan v Northridge, 246 Mass. 382, 141 N. E. 114, cited by plaintiff, it was held that the plaintiff was entitled to go to the jury on the question of landlord’s retention of control, where the roof of a second floor piazza was part of the premises let to the tenant of the second floor. In that case there was evidence that the landlord had made some repairs as in the instant case.
In the case of Bolithe v Mints, 106 N. J. 449, 148 Atl. 737, the plaintiffs were tenants occupying one of two apartments on the third floor of the premises owned by the defendant. The plaintiff, Mildred Bolithe took hold of a clothes line for the purpose of hanging clothes thereon when the post or railing gave way, throwing her off the porch to the ground causing the injuries sued for. The trial resulted in a verdict for the plaintiff. It was held that it was not error for the trial court to refuse the motions for a non-suit or to direct a verdict in favor of the defendant and that the question of whether the landlord retained control of the balcony and rail for the general use of the tenants and whether he used due care under the facts to keep it reasonably safe, were jury questions where the testimony was of a controverted character.
In cases where premises are used jointly by several tenants, evidence of the conduct of the parties prior to the event is admissible as bearing upon the question of responsibility and control. The making of repairs by one party or another, together with all other circumstances in the evidence, is some evidence which may be considered as indicating the understanding, agreement or intention of the parties.
It is true that the courts sometimes use the word “possession” in conjunction with the word “control” but this does not necessarily mean actual possession in the sense of occupancy but rather possession for the purpose of exercising *11control over parts of the premises used in common by the tenants. In other words, control is the criterion for the purpose of fixing responsibility.
In the instant case the occupants of these two apartments were several and not joint tenants of the owners. In the situation such as the facts here disclose on the evidence presented by the plaintiff and her witnesses, it is at least a matter of doubt if either of the tenants could have exclusive control or exclusive use and occupancy of this porch which the record indicates was used in common by them. On whom then devolved the responsibility to keep this .portion of the premises so jointly used in repair and in proper condition for use by the tenants and such as might be their guests? Can it be said as a matter of law that the responsibility rested upon either one or both, or that either was under obligation to repair that portion immediately to the rear of each apartment? In view of the state of the record which is silent in respect of any express agreement for control and responsibility, but which shows that the owners had made some repairs to the porch but failed to make necessary repairs to the railing, although they had actual notice of the dangerous and defective condition thereof, can it be said as a matter of law, that no responsibility rested upon the owners? I think not. Rather it would appear from the uncontradicted evidence, with all reasonable inferences therefrom, being construed favorably to the plaintiff, that circumstances were here presented upon which different minds might reasonably draw different conclusions, one favorable to the plaintiff and the other unfavorable.
It would appear further that sufficient testimony had been introduced by the plaintiff in support of the allegations of her petition, to require the court to submit to the jury under proper instructions of law, the question of whether the landlords retained control of the porch and railing for the general use of the two tenants, and for the purpose of making repairs, and whether they exercised ordinary care under the circumstances to keep it reasonably safe for their use. Such being the case the motion of the defendants made at the close of the plaintiff’s case should have been overruled.
For the reasons stated I respectfully dissent from the opinion expressed by a majority of this Court and from the judgment entered herein.