¶1 dissenting. As a jndge of a lower court, under the principle of stare decisis, I feel a duty to abide by a judgment of the Supreme Court of Ohio rendered upon facts from which I am unable to distinguish the facts in the instant case.
¶2 In the case of Walborn v. General Fireproofing Co. (1947), 147 Ohio St. 507, the Supreme Court of Ohio, in paragraph three of the syllabus, held:
“A workman is not entitled to obtain compensation for a disability resulting from a fall on ice and snow on a parking lot provided by his employer when the condition there is the same as prevails generally throughout the community and has been caused by a storm during the preceding day and night. ’ ’
¶3 To me, to attempt to distinguish the instant case from Walborn v. General Fireproofing Co., supra, upon a basis of the facts is to draw a distinction which is without a difference. Cases ought to be distinguished only when there is a difference which is material, otherwise the law as established by a decision of the Supreme Court of Ohio should be adhered to.
¶4 Upon basis of the holding of the Supreme Court of Ohio in Walborn v. General Fireproofing Co., supra, which I cannot distinguish from the instant case upon the facts, I would reverse the judgment of the Common Pleas Court and affirm the decision of the commission which denied the claim of Dorothy Brennan, the plaintiff, appellee herein.
¶5 It is important to note that Walborn v. General Fireproofing Co., supra, was decided at a later date than Malone v. Industrial Commission (1942), 140 Ohio St. 292; also, that while the Supreme Court discussed Walborn v. General Fireproofing Co., supra, in the opinion of Marlow v. Goodyear Tire & Rubber Co., 10 Ohio St. 2d 18, in 1967, and could have overruled Walborn v. General Fireproofing Co., it did not do so.
¶6 If the majority opinion in this case and Walborn both stand, an attorney would have a most difficult time trying to advise his client as to what his or her right to industrial compensation might be for injury resulting from an accidental fall on an employer’s premises due to general weather conditions. About all he could advise would be *84 that if it was slush and snow there could be recovery but if it had stormed there could not be recovery, to which a smart client would reply, “I don’t understand the difference, but I think I get your point, when I testify, I will refrain from use of the word ‘storm.’ ”
¶7 If I were in a position which would afford me the opportunity to do so, I might favor overruling the third paragraph of the syllabus of Walborn v. General Fireproofing Co. However, I would rather be reversed because the Supreme Court overrules a former decision of that court upon which I have relied, than to be in the position of not giving effect to that decision or trying to circumvent it, without any material distinction in facts, during such time as it is the law of Ohio as pronounced by the Supreme Court.