Fowler v. City Of Cleveland

• Decision Date: 08 July 1919
• Docket Number: 16094
• Citation: 100 Ohio St. 158,126 N.E. 72
• Parties: Fowler, Admx., v. The City Of Cleveland
• Court: Ohio Supreme Court

126 N.E. 72

100 Ohio St. 158

Fowler, Admx., v. The City Of Cleveland

No. 16094

Supreme Court of Ohio

July 8, 1919

Municipal corporations - Liability for negligence - Governmental or ministerial functions - Respondeat superior applies when-Constitutional law - Of redress in courts - Negligent operation of fire truck.

1. Section 16. Article I of the Constitution, guarantees to every person for injury done him in his lands, goods, person or reputation remedy by due course of law.

2. It is not the policy of government that the state or any of its subdivisions shall, in the absence of special provision indemnify persons for loss or damage either from lack of proper laws or administrative provisions; nor from inadequate enforcement of laws or the inefficient operation of such provisions.

3. But where a wrongful act which has caused injury was done by the servants or agents of a municipality in the performance of a purely ministerial act which was the proximate cause of the injury without fault on the part of the injured person respondeat superior applies and the municipality is liable.

4. Frederick, Admx., v. City of Columbus, 58 Ohio St. 538 overruled.

This was an action by the administratrix to recover damages for injuries wrongfully inflicted upon W. H. Fowler, from which he died.

The deceased was going northerly on the cast side of Ontario street in the city of Cleveland and was at the intersection of the street with the southerly side of the public square. While on the easterly crosswalk he was struck and run over by a motor hose-truck belonging to the city, which was returning to its station in that neighborhood,

The petition alleged that it was driven in a reckless and negligent manner diagonally from the northeast cutting the corner sharply at a high rate of speed, without warning, and on the wrong side of the street.

The common pleas court sustained a demurrer to the petition on the ground that the city was not liable for the negligent driving of the hose-truck operated by a member of the city fire department while in the performance of his duties. The petition was dismissed, this judgment was sustained by the court of appeals, and error is prosecuted here.

Messrs. Payer, Winch, Minshall & Karch, for plaintiff in error.

Mr. W. S. Fitzgerald, director of law, and Mr. Alfred Clum and Mr. James T. Cassidy, assistant directors of law, for defendant in error.

JOHNSON J.

The petition sets forth with great detail the alleged negligent acts of the defendant in the operation of the motor truck on the public street at the time of the injury. It states an undoubted cause of action if alleged against any defendant corporation liable for the acts of its servants in charge of such a vehicle.

The trial court entertained the view that the case was ruled by Frederick, Admx., v. City of Columbus, 58 Ohio St. 538, and it is conceded that if that case is not now reversed or modified the judgments of the courts below should be afirmed. The syllabus in that case lays down the following proposition: "A municipal corporation is not, in the absence of any statutory provision, liable in damages to one injured by the negligent acts of i!s fire department, or any of its members."

The conclusion was arrived at in obedience to a principle long embedded in our jurisprudence, and generally enforced, that no liability attached to the sovereignty, or any of its subdivisions, in the exercise of any governmental function.

The rule has been followed by the courts of England and this country with some variations for a long period of time. It would not be profitable to cite or examine the cases in detail.

In the opinion in the Frederick case a fair statement is made of the reasons of the rule as applied to fire departments, viz.: "The ground on which the non-liability of municipal corporations is placed in such cases, is that the power conferred on them to establish a department for the protection of the property of its citizens from fire, is of a public or governmental nature, and liability for negligence in its performance does not attach to the municipality unless imposed by statute. The non-liability of the city in such cases rests upon the same reasons as does that of the sovereign exercising like powers; and are distinguished from those cases in which powers are conferred on cities for the improvement of their own territory and the property of their citizens." Recognizing the existence of the distinction referred to, and the liability of cities in the latter class of cases, the court remarked at page 549: "It is not always a simple matter to determine to which class Of the duties of a municipal corporation a given case belongs."

We think it may be fairly said that there has been a growing dissatisfaction with any comprehensive rule (and its unsatisfactory and unjust results) which exempts municipalities from liability for all acts which have loosely been classed as governmental.

In England a distinction was long ago made in the maritime law, arid the general rule was denied application in maritime cases; but the reasons and logic upon which the distinction was made are not 50 satisfying or clear as those upon which the criticism of the rule itself is based.

The distinction, however, was recognized in Workman v. New York City, 179 U.S. 552, where the city was held liable by maritime law for the negligence of its servants in charge of a fireboat while hastening to put out a fire raging at the head of a dock, in consequence of which the fireboat collided with and injured another vessel. The federal supreme court reversed the judgment of the United States court of appeals, which had held the city to be exempt from liability under the general rule to which we have referred. The court in holding that the rule did not apply, in maritime law at least, say at page 573: "Because we conclude that the rule of the local law in the State of New York - conceding it to be as held by the Circuit Court of Appeals - does not control the maritime law, and, therefore, affords no ground for sustaining the non-liability of the city of New York in the case at bar, we must not be understood as conceding the correctness of the doctrine by which a municipal corporation, as to the discharge of its administrative duties, is treated as having two distinct capacities, the one private or corporate, and the other governmental or sovereign, in which latter it may inflict a direct and positive wrong upon the person or property of a citizen without power in the courts to afford redress from such wrong. * * * And although this opinion is confined to the controlling effect of the admiralty law, we do not intend to intimate the belief that the common law which benignly above all considers the rights of the individual, yet gives its sanction to a principle which denies the duty of courts to protect the rights of the individual in a case where they have jurisdiction to do so."

The United States court of appeals in New York City v. Workman, 35 U. S. App., 201,204, which was reversed by the United States supreme court, supra, concisely set forth the general rule and the reasons for it, viz.: "It is familiar law that the officers selected by a municipal corporation to perform a public service for the general welfare of the inhabitants or the community, in which the corporation has no private interest, and from which it derived no special benefit or ad-vantage in its corporate capacity, are not to be regarded as the servants or agents of the municipality, and for their negligence or want of skill it cannot be held liable. * * * The duties intrusted to them do not relate to the exercise of corporate powers; and hence they are the agents or servants of the public at large. * * * The test of corporate liability for the acts of the officers of the municipality depends upon the nature of the duties with which they are charged; if these, being for the general good of the public as individual citizens, are governmental, they act for the State. If they are those which primarily and legitimately devolve upon the municipality itself, they are its agents."

The line of demarcation between acts which are termed governmental, and those which are ministerial or proprietary, done in the performance of a corporate function, has not been accurately defined in cases where the liability of a municipality was involved. It is of course everywhere recognized that the exercise of the legislative will is governmental. The power to determine whether certain steps shall be taken in the interest of the public welfare is governmental, and the exercise and expression of the discretion as to the kind of steps and the extent of them is governmental. But a municipal corporation is a vastly different thing now from what it was in the early days. Then its function was very largely expressed in the exercise, as a political subdivision, of the delegated and limited powers of sovereignty. It was a favorite maxim of the early times in this country that that government is best which governs" least, and the authority of the federal government to make internal improvements was long contested. It was the natural expression of protest against the ancient idea that the sovereign was the active and all-pervading influence, and that the duty of the people was to exalt the sovereignty.

Now, the activities and undertakings of a municipal corporation are manifold. They reach and touch in countless directions. It seems to be utterly unreasonable that all these activities and enterprises which are brought closely home to the lives of all of the people of the municipality must still be regarded as bound up in the vague and uncertain sphere of what is called a governmental function.

In the early days...