Broughton v. City of Cleveland

• Decision Date: 20 November 1957
• Docket Number: No. 35086,35086
• Citation: 146 N.E.2d 301,4 O.O.2d 1,167 Ohio St. 29
• Parties: , 4 O.O.2d 1 BROUGHTON, Appellant, v. CITY OF CLEVELAND, Appellee.
• Court: Ohio Supreme Court

Page 29

167 Ohio St. 29

146 N.E.2d 301, 4 O.O.2d 1

BROUGHTON, Appellant, v. CITY OF CLEVELAND, Appellee.

No. 35086.

Supreme Court of Ohio.

Nov. 20, 1957.

Syllabus by the Court.

A municipal corporation, when engaged in the health-preserving service of collecting garbage for its inhabitants, is in the exercise of the police power and is performing a governmental function, and one who is injured by the negligence of a municipal employee while he is in the process of loading a stationary garbage truck on private property may not successfully maintain an action for damages against the municipality.

The present action had its inception in the court of Common Pleas of Cuyahoga County, with Ethel Broughton as plaintiff and the city of Cleveland as defendant.

In her petition plaintiff claims damages for personal injuries sustained when in attempting to walk past a stationary truck of the defendant on private property, which truck was being loaded with garbage, she 'was suddenly and violently struck by a wooden box which was being hurled onto the truck by the duly authorized employees and agents of the defendant.'

Such injuries are alleged to have been inflicted as 'the direct and proximate result of the willful and wanton carelessness and negligence of the defendant' in described particulars.

A demurrer was interposed to the petition on the ground that it states no cause of action against defendant inasmuch as it alleges that the agents of the city were ingaged in the governmental function of collecting garbage on private property under conditions not affected by Sections 723.01 and 701.02 Revised Code, imposing liability on municipalities in certain circumstances.

The demurrer was sustained, and, plaintiff not desiring to plead further, the action was dismissed.

On an appeal on questions of law, the Court of Appeals affirmed the judgment below.

The cause is now in this court for disposition, pursuant to the allowance of a motion to require the Court of Appeals to certify the record.

Jerome Silver, Cleveland, for appellant.

Ralph S. Locher, Director of Law, Joseph H. Crowley and Carl J. Grosclaude, Cleveland, for appellee.

ZIMMERMAN, Judge.

The generally recognized rule that a municipality is not liable for torts committed by its employees in the exercise of a function of the municipality which is governmental in character has been subject to sharp criticism. It is argued that such rule having its origin in the ancient and obsolete maxim that 'the king can do no wrong' has no place in this modern day with its enlightened sociological concepts and governmental changes, and that the rule of nonliability is unfair and unjust in that the burden of damages resulting from the tortious or wrongful acts of the government should be removed from the person who sustains them and cast upon the whole community comprising the government, which could bear the loss with little hardship or inconvenience, and ought to do so. It must be conceded that this approach is not without logic and force.

However, in a great majority of jurisdictions, the rule of municipal nonliability for torts occasioned when a governmental function is being performed still obtains. Through a long line of decisions, extending to the present time, Ohio has consistently followed and applied the rule that, except as otherwise provided by statute, municipal corporations are exempt from liability for negligence in the performance or nonperformance of their governmental functions. Some of the representative cases are Frederick v. City of Columbus, 58 Ohio St. 538, 51 N.E. 35; Aldrich v. City of Youngstown, 106 Ohio St. 342, 140 N.E. 164, 27 A.L.R. 1497; City of Akron v. Butler, 108 Ohio St. 122, 140 N.E. 324; City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, 52 A.L.R. 518; City of Hamilton v. Dilley, 120 Ohio St. 127, 165 N.E. 713; City of Mingo Junction v. Sheline, 130 Ohio St. 34, 196 N.E. 897; Selden v. City of Cuyahoga Falls, 132 Ohio St. 223, 6 N.E.2d 976; Davis v. Charles Shutrump & Sons Co., 140 Ohio St. 89, 42 N.E.2d 663; Tolliver v. City of Newark, 145 Ohio St. 517, 62 N.E.2d 357, 161 A.L.R. 1391; Wall v. City of Cincinnati, 150 Ohio St. 411, 83 N.E.2d 389; and Standard Fire Ins. Co. v. City of Fremont, 164 Ohio St. 344, 131 N.E.2d 221. Perhaps we are behind the times, but, in the absence of legislation by the General Assembly, this court is not yet ready to abandon the position adopted and retained for so many years.

It is sometimes difficult to differentiate between activities which are governmental and those which are proprietary. In the case of City of Wooster v. Arbenz, supra, 116 Ohio St. at page 284, 156 N.E. at page 211, Marshall, C. J., said in the course of the opinion:

'In performing those duties which are inposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself. If, on the other hand, there is no obligation on the part of the municipality to perform them, but it does in fact do so for the comfort and convenience of its citizens, for which the city is directly compensated by levying assessments upon property, or where it is indirectly benefited by growth and properity of the city and its inhabitants, and the city has an election whether to do or omit to do those acts, the function is private and proprietary.

'Another familiar test is whether the act is for the common good of all the people of the state, or whether it relates to special corporate benefit or profit. In the former class may be mentioned the police, fire, and health departments, and in the latter class utilities to supply water, light, and public markets.'

The next question presenting itself is whether the collection of garbage by a municipality, as one of its services, is governmental or proprietary in nature. Among the courts of the different states, there is a division of opinion on this subject, with probably a majority holding the collection of garbage to be a governmental activity as distinguished from a proprietary one with nonliability on the part of the municipality for the negligence of those employed therein. 38 American Jurisprudence, 311, Section 614; 63 C.J.S. Municipal Corporations § 777, p. 85; annotation, 156 A.L.R. 714.

Under Section 715.43, Revised Code, municipalities are accorded the authority to collect and dispose of garbage and other refuse and to maintain and regulate plants for the disposal thereof.

Ohio courts have been on both sides of the above-stated question. In the case of Russo v. City of Cleveland, 1917, 28 Ohio Ct.App. 25, 29 Ohio Cir.Dec. 445, the Court of Appeals for Cuyahoga County decided that the collection of garbage by a municipality is not a governmental function relieving it from liability for the death of a person occasioned by the negligence of an employee engaged in garbage collection. On error proceedings, such determination was upheld by this court without written opinion in City of Cleveland v. Russo, 98 Ohio St. 465, 121 N.E. 901, solely on authority of City of Toledo v. Cone, 41 Ohio St. 149, in which latter case it was decided that the city of Toledo was responsible for injuries received by an employee of a municipal cemetery due to the negligence of the cemetery superintendent.

Then, in 1927, the Court of Appeals for Cuyahoga County, with a different complement of judges, decided the case of Gorman v. City of Cleveland, 26 Ohio App. 109, 159 N.E. 136 (motion to certify record overruled), which...