Cleveland v. Payne
| Citation | 72 Ohio St. 347,74 N.E. 177 |
| Decision Date | 04 April 1905 |
| Docket Number | 8952 |
| Parties | The City Of Cleveland v. Payne. |
| Court | Ohio Supreme Court |
Police department of municipal corporation derives authority from the state - Municipal corporation cannot enlarge or restrict duties of officers - Without legislative authority - Rule requiring police to note defects in street - Not necessarily notice to city, when - Municipal law - Law of negligence.
1. The police department of a municipal corporation derives its authority from the state; and when such corporation is not expressly or by necessary implication authorized to do so, it can neither enlarge nor restrict the duties of such department or its officers and agents as defined by the general assembly.
2. When it does not appear that there is any act of the legislature authorizing a municipal corporation to prescribe the duties of a policeman and to make him an agent of the corporation in respect to its duty of keeping its streets open and in repair, or when the legislature has conferred such power upon the corporation and it does not appear that the council of such municipal corporation has, by ordinance or resolution so prescribed the duties of a policeman and so made him its agent for such purpose, a rule of the police department which requires a policeman to note defects in the streets or sidewalks and to remove them when practicable, and in case of a complaint by any citizen to report the same, is irrelevant and incompetent as evidence to charge such corporation with notice of a defect in the street or sidewalk, although it is shown in connection therewith that a policeman had knowledge of such defect.
This is an action to recover damages for injuries to the defendant in error by falling into a defectively covered coal hole in a sidewalk. At the close of the plaintiff's testimony in the court of common pleas, on motion by the counsel for the city, the court directed the jury to return a verdict for the defendant, which was accordingly done and judgment was rendered on the verdict for the defendant, the plaintiff in error here. On the trial the plaintiff offered to prove by a witness, one Mary Pauli, that, a few days before the plaintiff was injured, the witness fell into the same place and was hurt, and that a policeman came along and she called his attention to the hole. When the witness was asked to state the conversation with the policeman and what took place at that time, the counsel for the city objected and the court sustained the objection and instructed the jury to disregard whatever the witness had said in relation to a policeman. The plaintiff's counsel stated that if permitted the plaintiff expected to prove that a policeman came there just after the witness got out of the hole, and she told him that she stepped on the cover of that hole and that it tipped up and slid out of place and she fell in the hole; and that thereupon the policeman went into the building in front of which the coal hole was and a man came out with him and was shown the coal hole with the cover off, by the policeman, and by him was told that he must make it secure, and that the man said to the policeman that he could not fasten it because the fastening was broken. Thereupon the plaintiff offered in evidence rule No. 150 of the rules and regulations of the police force of the city of Cleveland counsel for the defendant conceding in open court that the said rule was one of the rules and regulations of the police force of the city of Cleveland and that it was in force on June 25, 1895. Said rule is as follows:
"He shall note all street and sidewalk obstructions, all defects therein from which accidents may occur, removing them when practicable, and when necessary, and no light is furnished place a good and sufficient light, so that obstructions can be plainly seen; all places for which temporary permits are granted for building, or when openings or excavations are being made, and not suffer them to be continued without the proper permits being granted, authorizing the same, and shall cause suitable accommodations to be provided for the public travel; all coal holes being left exposed or insecure; all street lamps not lighted at proper time or too early extinguished, when not clean, or not giving sufficient light all wooden buildings erected contrary to law, or any building defectively built or becoming unsafe; or where any noisome, dangerous or unwholesome trade is carried on; and all nuisances, or violations of the health ordinance; and all other matters relating to the safety, health or convenience of the public, or to the interests of the city, and in all cases of complaint by citizens, with residence of complaint, shall make report thereof."
The defendant objected to the admission of said rule as evidence, because the same is incompetent and irrelevant, which objection was sustained by the court. For the exclusion of the proffered evidence aforesaid and for directing a verdict for the defendant, the circuit court reversed the judgment of the court of common pleas and in this proceeding the city seeks the reversal of the judgment of the circuit court and the affirmance of the judgment of the court of common pleas.
Mr. Newton D. Baker, city solicitor; Mr. Charles J. Estep; Mr. Harry F. Payer; Mr. George S. Addams and Mr. W. A. Carey, attorneys for plaintiff in error.
The question whether or not notice to a policeman is actual notice to the city has been frequently raised in our courts, but we are safe in saying that there is no Ohio decision settling the question. The relation, however, which a police officer sustains to the municipality has been clearly settled in this state. Western College, etc. v. City of Cleveland, 12 Ohio St. 375; Wheeler v. Cincinnati, 19 Ohio St. 19; Chase v. City of Cleveland, 44 Ohio St. 505; Robinson v. Greenville, 42 Ohio St. 627; Shearman & Redfield on Negligence (5 ed.), sec. 291; Bigelow, C. J., 82 Mass. 172.
If we have the law correctly as to the relation police officers sustain to the municipality, and if we are right when we say that the municipality is not liable for the negligence, whether of omission or commission, of its police officers, we then think it clearly and logically follows that notice to these agents of the state is not notice to the municipality.
These officers are clearly agents of the state, and they are in no sense agents of the city, unless the city has made them such by proper legislative act. Some states, however, have held that custom may make a police officer the agent of the city with regard to defects in the streets. City of Joliet v. Looney, 159 Ill. 471.
The only testimony claimed by defendant in error which tends to show that the city had constituted police officers its agents for the purpose of reporting conditions similar to those complained of in this case is the rule of the police force in force June 25, 1895. When this rule was in force, to-wit, June 25, 1895, the law applicable to the passage of rules relating to the police force is found in Bates' Annotated Statutes (3 ed.), secs. 1545-25 and 1545-42.
We contend, therefore, that it is of the utmost importance by whom the rule referred to was made or adopted. There is no evidence in this record that this rule was approved or adopted by any ordinance or any action whatsoever of the city council, and hence we say it was adopted as required by the statute then in force; that this statute empowered the head of the police department to enact the rule, and that he alone had authority to prescribe rules and regulations for the government of the conduct of their officers and employes, and the distribution and performance of the business under their charge.
Mr. W. S. Kerruish and Mr. F. A. Beecher, attorneys for defendant in error, submitted no brief.
The defendant in error has filed no brief in this case and is probably relying on the re- ported opinion of the circuit court (25 O. C. C., 457) and the cases cited therein. We have examined all of these and also as many other cases upon the questions here involved as we could find.
The question presented is whether the knowledge of a policeman concerning the defective nature of the covering over the hole in the sidewalk,...
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