Hack v. City of Salem

• Decision Date: 17 April 1963
• Docket Number: No. 37448,37448
• Citation: 23 O.O.2d 34,174 Ohio St. 383,189 N.E.2d 857
• Parties: , 23 O.O.2d 34 HACK, Appellant, v. CITY OF SALEM, Appellee.
• Court: Ohio Supreme Court

Page 383

174 Ohio St. 383

189 N.E.2d 857, 23 O.O.2d 34

HACK, Appellant, v. CITY OF SALEM, Appellee.

No. 37448.

Supreme Court of Ohio.

April 17, 1963.

Syllabus by the Court

1. A municipality in voluntarily owning and operating a swimming pool primarily for the benefit and accommodation of those of its citizens who might be interested does so in the exercise of a proprietary function and is answerable for its negligence. (Paragraph three of the syllabus in the case of Eversole v. City of Columbus, 169 Ohio St. 205, 158 N.E.2d 515, approved and followed; paragraphs one and two of the syllabus in the case of Selden v. City of Cuyahoga Falls, 132 Ohio St. 223, 6 N.E.2d 976, distinguished.)

2. The allegations in a petition for damages for injuries, alleged to have been caused by the negligence of a municipal corporation, that it 'owned and operated a public swimming pool' and 'charged an admission fee of fifty cents (50cents) per person' are sufficient, when tested by demurrer, to state the exercise of a proprietary function by such municipality in the conduct of which it is answerable for its negligence.

This action was instituted in the Court of Common Pleas of Columbiana County by the plaintiff, Mollie Hack, appellant herein, to recover damages for injuries alleged to have been caused by the negligence of the defendant, city of Salem, and sustained by her when she slipped and fell in a foot bath while going to the dressing room of a swimming pool. She alleges, among other things, 'that defendant is a municipal corporation and that on July 4, 1959, the defendant, city of Salem, through its agents and employees owned and operated a public swimming pool, known as Centennial Park Pool; that defendant charged an admission fee of fifty cents (50cents) per person.'

Defendant demurred to the petition for the stated ground that it does not allege a cause of action. Argument thereon was confined solely to the issue of whether the city was immune from liability by being in the exercise of a governmental function. The demurrer was sustained by the Common Pleas Court, and the action dismissed.

That judgment was affirmed, without written opinion, by the Court of Appeals which stated in its docket entry that the affirmance was 'on authority of Selden v. City of Cuyahoga Falls, 132 Ohio St. 223, 6 N.E.id 976.'

The cause is here on appeal pursuant to allowance of plaintiff's motion to certify the record.

Stephens, Stephens & Wilkes, Youngstown, for appellant.

Comus M. Beard, Youngstown, for appellee.

GUERNSEY, Judge.

Plaintiff's action being founded solely on common-law negligence, we are not concerned with any liability of defendant on the theory of nuisance. Moreover, as no issue was raised in the Common Pleas Court, in the Court of Appeals or in this court as to the sufficiency of plaintiff's allegations of negligence, the only issue to be determined is whether the petition fails to state a cause of action by alleging a function of the defendant municipality in the exercise of which it was immune from liability for its common-law negligence.

In the absence of adoption by the General Assembly of legislation abolishing the rule, this court remains committed to, and is not yet ready to abandon, 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 as distinguished from those which are proprietary. See Broughton v. City of Cleveland, 167 Ohio St. 29, 31, 146 N.E.2d 301.

It is apparent that, in rendering their respective judgments herein, both the Common Pleas Court and the Court of Appeals relied entirely on the authority of Selden v. City of Cuyahoga Falls, 132 Ohio St. 223, 6 N.E.2d 976, wherein the following appears in the syllabus:

'1. In the construction and maintenance of a park and swimming pool for the use and benefit of the general public a municipality acts in a governmental rather than a proprietary capacity.

'2. While acting in such governmental capacity a municipality incurs no liability in tort for common-law negligence.'

However, Chief Justice Weygandt stated in his opinion, at page 224, 6 N.E.2d at page 977:

'To simplify and shorten this discussion, it should be noted that the defendant municipality here acted in a governmental rather than a proprietary capacity in the construction and maintenance of its park with a swimming pool for the use and benefit of the general public. City of Mingo Junction v. Sheline, Adm'x, 130 Ohio St. 34, 196 N.E. 897; Hannon v. City of Waterbury, 106 Conn. 13, 136 A. 876, 57 A.L.R. 402. This seems to be conceded by the plaintiff.' (Emphasis added.)

Indeed, in the same case, the Court of Appeals for Summit County had not deemed there was any issue of governmental or proprietary capacity to be considered or determined by it, for it said (Cuyahoga Falls v. Selden, 23 Ohio Law Abs. 181, 184):

'It is important that we keep in mind that this is not a case involving a question of negligence in the keeping of a public place open or in repair, and it is not a case involving the acts of a city which are performed in its proprietary capacity; that on the contrary this case presents solely and only a question relative to the liability of a city while acting in its governmental capacity.' (Emphasis added.)

It was held by this court in Williamson Heater Co. v. Radich, 128 Ohio St. 124, at page 126, 190 N.E. 403, at page 404, as stated by Chief Justice Weygandt in his opinion:

'It is of course true that the syllabus of a decision of the Supreme Court of Ohio states the law of Ohio. However, that pronouncement must be interpreted with reference to the facts upon which it is predicated and the questions presented to and considered by the court. It cannot be construed as being any broader than those facts warrant. When obiter creeps into a syllabus it must be so recognized and so considered.' (Emphasis added.)

It appearing that, in the Selden case, the plaintiff had conceded that the municipality was exercising a governmental function, and that the issue of governmental versus proprietary functions was not presented to and considered by the Supreme Court, we are of the opinion that all that part of the first and second paragraphs of the syllabus of the Selden case, purporting to hold that in the construction and maintenance of a swimming pool for the use and benefit of the general public a municipality acts in a governmental rather than a proprietary capacity and incurs no liability in tort for common-law negligence, is obiter and thus established no judicial precedent.

In the recent case of Gibbon, Admr., v. Young Women's Christian Assn. of Hamilton, Ohio, 170 Ohio St. 280, 164 N.E.2d 563, which was an action for wrongful death by drowning allegedly caused by the negligence of defendant's employee, this court followed the earlier case of Waddell, a Minor, v. Young Women's Christian Assn., 133 Ohio St. 601, 15 N.E.2d 140, involving similar facts, and held that, except in certain limited situations, a charitable or eleemosynary institution, other than one which has as its purpose the maintenance and operation of a hospital, is, as a matter of public policy, not liable for tortious injury. Although thus recognizing in the Gibbon case the application of public policy to the determination of liability of a charitable or eleemosynary institution under rules previously established in Avellone v. St. John's Hospital, 165 Ohio St. 467, 135 N.E.2d 410, this court nevertheless found in the Gibbon case that considerations of public policy also required that the established doctrine of immunity from liability should continue to be applied to the factual situation presented therein.

Although cases pertaining to tort liability of charitable or eleemosynary institutions may thus present interesting parallels to the tort liability of municipal corporations, the immunity of each is based on different legal concepts, and we do not deem the decisions as to the former controlling with respect to decisions pertaining to the latter. The present concept of immunity of charitable and eleemosynary institutions from tort liability is as expressed by Acting Chief Justice Matthias in his opinion, at page 473, 135 N.E.2d at page 414, in the Avellone case:

'Although it is apparent that this court has used language indicative of each of the four named theories of immunity, it is also apparent that, in the final analysis, the partial immunity of nonprofit hospitals obtaining in Ohio at the present time, they being [before the Avellone decision] immune from liability only as to patients, i. e., 'beneficiaries of the charity' who cannot prove negligent selection of servants, is based solely upon the general ground of public policy.'

On the other hand, the immunity of municipal corporations from liability for their torts has not, by Ohio decisions, been attributed to considerations of public policy but is founded instead on the supremacy of the sovereign. As stated by Chief Justice Marshall in City of Wooster v. Arbenz, 116 Ohio St. 281, 283, 156 N.E. 210, 211, 52 A.L.R. 518:

'This court is for the present committed to the doctrine that there is no liability on the part of a municipality in actions for tort, if the function exercised by the municipality at the time of the injury to the plaintiff was a governmental function. The nonliability for governmental functions is placed upon the ground that the state is sovereign, that the sovereign cannot be sued without its consent, and that the municipality is the mere agent of the state and therefore cannot be sued unless the state gives its consent by legislation. * * *

'The court is equally committed to the doctrine that if the function being exercised is proprietary and in pursuit of private and corporate duties, for the particular benefit of the corporation and its inhabitants, as distinguished from those things...