Edward C. Krempin brought this action originally in the Cuyahoga Common Pleas against the Amazon Lodge No. 567, for damages resulting for injuries sustained by reason of the defective condition of a side-walk in front of premises owned by the Lodge.

It appears that the basement and ground floor of the building was leased to a tenant at the time of the injury. In the side-walk were placed round pieces of glass for the purpose of admitting light to an excavation under the side-walk and some of these so called glasses had broken thereby leaving holes in the sidewalk. Krempin was a cripple and used a crutch to sustain him in walking and while passing over the sidewalk in front of the premises owned by the lodge was injured by reason of his crutch going into one of the holes where the glass was broken.

The judgment of the Common Pleas in favor of Krempin was reversed by the Court of Appeals on the theory that if there was any liability it attached to the lessee of the premises and not the owner.

Krempin in the Supreme Court contends:

1. That as a matter of law the owner of the premises was liable for the injury because a landlord out of possession has a duty to keep in repair all parts of the building which are in common use by the tenants.

2. That the decision of the court of Appeals is contrary to the rule established in 112 OS. 122.