Bd. Of Ed. v. Volk

• Decision Date: 23 May 1905
• Docket Number: 8943
• Citation: 72 Ohio St. 469,74 N.E. 646
• Parties: The Board Of Education Of Cincinnati v. Volk.
• Court: Ohio Supreme Court

74 N.E. 646

72 Ohio St. 469

The Board Of Education Of Cincinnati v. Volk.

No. 8943

Supreme Court of Ohio

May 23, 1905

Board of education not liable for damages - For negligence in erecting school house, when - Section 2676, Revised Statutes does not apply to school boards, when - Law of negligence and public corporations.

1. A board of education is not liable in its corporate capacity for damages, where, in excavating on its own lots for the erection of a school building, it wrongfully and negligently carries the excavation below the statutory depth of nine feet, thereby undermining and injuring the foundation and walls of a building of an adjoining owner.

2. Section 2676, Revised Statutes, creating a liability against an "owner" or "possessor" of premises whereon such wrongful and unlawful excavation is made, does not apply to boards of education holding title to the lot or land being excavated, for school and school building purposes.

The defendant in error filed in the superior court his amended petition as follows:

"Plaintiff by leave of court, files this, his amended petition, and complains of the defendant, for that he is the owner in fee simple, and was for a long time prior to the happening of the injuries hereinafter complained of, to-wit, the premises with dwelling house situated thereon, and being on the west side of Orchard street (now called Steiner street) in the city of Cincinnati, county of Hamilton and state of Ohio, being the east half of lot number two (2), as designated on the plat of subdivision of Harry F. Sedam, as described in plat book No 3, page 182, records of Hamilton county, Ohio.

"Plaintiff says that on the -- day of -- A. D. 18-, the grade of said Orchard street was established by an ordinance passed by the council of said city of Cincinnati, and thereafter said street was improved and graded in accordance with said ordinance. That after said street was so improved, to wit during the year 18-, the plaintiff erected on said lot at great cost a dwelling house, which same was constructed with reference to said grade of said street, and entirely in conformity thereto.

"The defendant is a body corporate and politic under the laws of Ohio, and as such, is the owner in fee simple of the following described real estate situated on the west side of Orchard street (now Steiner street) and adjacent to the premises of plaintiff as hereinbefore described, and being lots 138, 139, 140 and 141 of subdivision of Harry F Sedam's estate as made in case No. 2957 of the probate court of Ohio.

"Plaintiff says that long after he had erected the frame dwelling house upon the lot hereinbefore men- tioned and described, the said defendant on or about the -- day of February, A. D. 1892, proceeded to erect a school house upon the aforementioned premises owned by it, and commenced excavating upon said lots for the purpose of erecting a large school building thereupon.

"Plaintiff says that said excavation was of such an extensive character and carried to a depth of more than forty feet below the established grade of said Orchard street, and wrongfully and unlawfully and in a careless and negligent manner, excavated to a depth below the foundation walls of plaintiff's house and to a much greater depth than twelve feet below the established grade of said Orchard street, and negligently and carelessly caused the base of the hillside on said premises to be removed and cut away, thereby destroying the lateral and subjacent support to plaintiff's premises upon which he had erected his said dwelling house, thereby causing the surface and loose strata of earth to remove, without shoring up or taking other reasonable precautions to support the house of plaintiff so as to prevent it from giving away on that occasion, and by reason of said neglect and said deep excavations in the earth near to the foundation of the house of this plaintiff so weakened the foundation and injured the building and destroyed the cistern connected with said dwelling house.

"Plaintiff says that by reason of the wrongful, careless and negligent acts aforesaid of the defendant, the value of the plaintiff's property has been diminished in the sum of three thousand dollars, and that he has been damaged by the carelessness, neglect and default of said defendant in the sum of three thousand dollars, for which sum he prays judgment with interest from the -- day of October, A. D. 1893."

To this amended petition, the Board of Education filed the following demurrer:

"1. The plaintiff has not legal capacity to sue this defendant.

"2. The facts stated in the amended petition are not sufficient in law to constitute a cause of action against this defendant."

The court overruled the demurrer and the board answered, admitting it is a body corporate and politic under the laws of Ohio, and its ownership of the several lots as alleged in the amended petition. All of the other allegations of said petition are denied. On the issues thus made up, the parties proceeded to trial. The defendant board objected to the introduction of any evidence, on the ground "that the amended petition does not state facts sufficient in law to constitute a cause of action."

The objection was overruled and the case proceeded with the introduction of the testimony for each party. After arguments of counsel, the case was submitted to the jury under the charge of the court. A verdict for $550 was returned; a motion for new trial overruled, and judgment entered on the verdict.

This judgment was affirmed at the general term of the superior court and error is prosecuted here to reverse both judgments.

Mr. Charles J. Hunt; Mr. John V. Campbell and Mr. Albert H. Morrill, attorneys for plaintiff in error, cited and commented upon the following authorities:

Finch v. Board of Education, 30 Ohio St. 37; State ex rel. v. Board of Public Works, 36 Ohio St. 409; Black on Interpretation of Laws, 119; Endlich on Interpretation of Statutes, sec. 161; Mississippi v. Joiner, 23 Miss. 500; Josselyn v. Stone, 28 Miss. 753; Raymond v. State, 54 Miss 563; Rose v. Governor, 24 Tex. 496; Cole v. White Co., 32 Ark. 45; Maryland v. Milburn, 9 Gill (Md.), 105; State v. Kinne, 41 N. H., 238; People v. Herkimer, 4 Cow., 345; Commonwealth v. Johnson, 6 Pa. St., 136; Tiedeman on Municipal Corporations, sec. 339; Gibbons v. United States, 8 Wall., 269; Langford v. United States, 101 U.S. 341; Toledo v. Cone, 41 Ohio St. 149; Dillon on Corporations, sec. 22; Hamilton County v. Mighels, 7 Ohio St. 109; Hill v. Boston, 122 Mass. 344, 345; Dargan v. Mobile, 31 Ala. 469; Barbour County v. Brunson, 36 Ala. 362; Askew v. Hale County, 54 Ala. 639; Greene Co. v. Eubanks, 80 Ala. 204; Lee Co. v. Yarbrough, 85 Ala. 590; Granger v. Pulaski County, 26 Ark. 37; School District v. Williams, 38 Ark. 454; Huffman v. San Joaquin, 21 Cal. 426; Croswell v. Sonoma, 25 Cal. 313; Winbigler v. Los Angeles, 45 Cal. 36; Tranter v. Sacramento, 61 Cal. 271; Board v. Bish, 33 Pac. Rep., 184; Jewett v. New Haven, 38 Conn. 368; Torbush v. Norwich, 38 Conn. 225; Mead v. New Haven, 40 Conn. 72; Chidsey v. Canton, 17 Conn. 475; Ward v. Hartford Co., 12 Conn. 404; Carter v. Wilds, 8 Houst., 14; Grumbine v. Mayor, 2 McAr., 578; McElroy v. Albany, 65 Ga. 387; Bibb County v. Dorsey, 15 S. E. Rep., 647; Governor ex rel. v. Justices of Clark County, 19 Ga. 97; Seales v. Chattahoochee County, 41 Ga. 225; Wilson v. Macon, 88 Ga. 455; Kincaid v. Hardin County, 53 Ia. 430; Ogg v. Lansing, 35 Ia. 495; Calwell v. Boone, 51 Ia. 687; Packard v. Voltz et al., 94 Ia. 277; Dashner v. Mills County, 88 Ia. 401; Lindley v. Polk County, 84 Ia., 308; Robinson v. Evansville, 87 Ind. 334; Abbett v. Johnson County, 114 Ind. 61; Vigo County v. Daily, 132 Ind. 73; White v. Sullivan County, 129 Ind. 396; Summers v. Commissioners, 103 Ind. 262; Wilcox v. Chicago, 107 Ill. 334; White v. Bond Co., 58 Ill. 297; Odell (Town) v. Schroeder, 58 Ill. 353; Elmore v. Commissioners, 135 Ill. 269; Greenwood v. Louisville, 13 Bush, 226; Pollock v. Louisville, 13 Bush, 221; Prather v. Lexington, 13 B. Mon., 559; Downing v. Mason County, 87 Ky. 208; Peters v. Lindsborg, 40 Kan. 654; LaClef v. Concordia, 21 Pac. Rep., 272; Marion County v. Riggs, 24 Kan. 255; Eikenberry v. Township, 22 Kan. 556; Coffey Co. (Comrs.) v. Venard, 10 Kan. 95; Stewart v. New Orleans, 9 La. An., 461; Lewis v. City of New Orleans, 12 La. An., 190; Bennett v. City of New Orleans, 14 La. An., 120; New Orleans v. Kerr, 50 La. An., 413; Sherman v. Vermillion Parish, 51 La. An., 880; Brown v. Vinalhaven, 65 Me. 402; Mitchell v. Rockland, 52 Me. 118; Cobb v. Portland, 55 Me. 381; Lynde v. Rockland, 66 Me. 309; Burrill v. Augusta, 78 Me. 118; Bulger v. Eden, 82 Me. 352; Goddard v. Harpswell, 84 Me. 499; Reardon v. St. Louis County, 36 Mo. 555; Murtaugh v. St. Louis, 44 Mo. 479; Rowland v. Gallatin, 75 Mo. 134; Clark v. Adair County, 79 Mo. 536; Cunningham v. St. Louis, 96 Mo. 53; Ulrich v. St. Louis, 112 Mo. 138; Bryant v. St. Paul, 33 Minn. 289; Grube v. St. Paul, 34 Minn. 402; Snider v. St. Paul, 51 Minn. 466; Miller v. Minneapolis, 75 Minn. 131; Barney v. Lowell, 98 Mass. 570; Tindley v. Salem, 137 Mass. 171; Fisher v. Boston, 104 Mass. 87; Howland v. Maynard, 34 N.E. 515; McCarthy v. Boston, 135 Mass. 197; Sullivan v. Holyoke, 135 Mass. 273; Detroit v. Blackeby, 21 Mich. 84; Larkin v. Saginaw County, 11 Mich. 88; Commissioners v. Martin, 4 Mich. 557; Detroit v. Beckman, 34 Mich. 125; Sutton v. Board, 41 Miss. 236; Brabham v. Hinds County, 54 Miss. 363; Nugent v. Commissioners, 58 Miss. 197; White v. Chowan County, 90 N. C., 437; Clodfelter v. State, 86 N. C., 51; Threadgill v. Anson Co., 99 N. C., 352; Maxmilian v. Mayor, 62 N.Y. 160; Ham v. Mayor, 70 N.Y. 459; N. Y., etc., Co. v. Brooklyn, 71 N.Y. 580; Lewis v. State,...