Hillyer v. City of East Cleveland

• Decision Date: 13 June 1951
• Docket Number: No. 32351,32351
• Citation: 155 Ohio St. 552,44 O.O. 499,99 N.E.2d 772
• Parties: , 44 O.O. 499 HILLYER v. CITY OF EAST CLEVELAND.
• Court: Ohio Supreme Court

Page 552

155 Ohio St. 552

99 N.E.2d 772, 44 O.O. 499

HILLYER v. CITY OF EAST CLEVELAND.

No. 32351.

Supreme Court of Ohio.

June 13, 1951.

Syllabus by the Court.

1. Where a person has a valid claim against an abutting property owner for actively or negligently creating and maintaining

a nuisance upon a public sidewalk, and likewise has a claim against a municipality for the same nuisance under Section 3714, General Code, the two liabilities are not joint, the abutting property owner being primarily liable and the municipality secondarily so. Under such circumstances a complete settlement of the claim against the abutting property owner by the claimant is a bar to an action against the municipality even though the settlement recites that the amount received thereunder is not full compensation and a right is reserved to bring an action against the municipality. (Herron v. City of Youngstown, 136 Ohio St. 190, 24 N.E.2d 708, approved and followed.)

2. Where a person against whom a claim is brought because of injuries received makes a settlement with the claimant, such person does not thereby acknowledge legal liability for the injuries.

3. Where a person asserts a claim against another for damages because of injuries received by claimant and the person against whom the claim is made is one so connected with the wrong as to be reasonably subject in the minds of both parties to an action and possible liability, and where the one against whom the claim is made compromises it and pays a substantial sum in settlement which can not be considered either a token payment or a donation, the claimant who receives the consideration is precluded from denying that the claim is well founded. Under such circumstances, where the one against whom the claim has been asserted is primarily liable if the claim is well founded, and another party is secondarily liable and deprived of any right as a subrogee because of the settlement between the claimant and the one primarily liable, the claimant is barred from proceeding against the one secondarily liable in an action for the injuries for which the one primarily liable made the settlement.

This action originated in the Court of Common Pleas of Cuyahoga County, wherein a verdict was returned in favor of appellee and cross-appellant, hereinafter designated plaintiff, in the sum of $8,000 against appellant and cross-appellee, hereinafter designated the city.

The city's motions for a directed verdict at the close of plaintiff's case and at the conclusion of all the evidence were overruled, as were its motions for judgment notwithstanding the verdict and for new trial.

The pleadings consisted of a petition, an amended answer and a reply.

In the petition plaintiff alleged that on August 2, 1945, at about 2 p. m. she was walking in a southerly direction upon the sidewalk on the easterly side of Hayden avenue in East Cleveland and was injured by reason of the negligence of the city when, without negligence on her part, her foot caught in an unsafe and dangerous portion of the sidewalk, causing her to fall; that the unsafe and dangerous condition of the sidewalk had existed for many months previous to the accident; that the city had actual or constructive knowledge thereof; and that the condition of the sidewalk constituted a nuisance in violation of Section 3714, General Code, which requires the city to keep its sidewalks open, in repair and free from nuisance.

The city denied any negligence upon its part and alleged in its amended answer that plaintiff made a claim for damages against Shell Oil Company, hereinafter designated Shell, in front of whose premises the accident occurred; and that as a result thereof plaintiff and her husband received from Shell the sum of $3,437.63 in settlement of all claims for injuries arising out of plaintiff's accident.

Plaintiff in her reply alleged that the money received from Shell was not in complete settlement for her injuries and that settlement was made with a reservation of rights to obtain full compensation from the city.

It appears that in November 1929 Shell purchased property at the northeast corner of Hayden and Scioto avenues in East Cleveland for the purpose of operating a gasoline station. The property had a frontage of approximately 90 feet on Hayden avenue, which runs generally north and south, and 82 feet on Scioto avenue, which runs east from Hayden avenue. The gas station building was erected on the property in 1930. Three entrances or driveways were constructed by Shell, two on the Hayden avenue side and one on the Scioto avenue side.

The driveways on the Hayden avenue side were each 27 feet wide and consisted of concrete extending from the public street and sloping upward to and across the public sidewalk and into the premises of Shell.

The curb was removed from in front of the entrances, and the sidewalk on Hayden avenue between the entrances was rebuilt by Shell and lowered to the grade of the concrete entrance in the 24-foot strip which separated the two concrete entrances. This work was all done by Shell under a permit from the city.

At the time of plaintiff's accident the flagging of the sidewalk contiguous to the south side of the concrete driveway at the northerly entrance to Shell's station on Hayden avenue was from one to three inches below the level of the concrete drive, the three-inch depression being next to the property line and the one-inch at the edge nearest the street.

On the day of the accident plaintiff had been to a fruit and vegetable store on a street north of Shell's station and was returning to her home on Scioto avenue. As she came to Shell's northerly driveway she proceeded to walk up that driveway into Shell's premises apparently for the purpose of crossing it and going out on to Scioto avenue by the driveway there in order to make a short cut. Seeing some cars at the gasoline pumps she turned around and started south and in some way, as she stepped where the depression was contiguous to the southerly side of the northerly driveway, her right ankle turned and her left leg buckled, causing her injuries.

Plaintiff and her husband made a claim for damages against Shell, and on July 2, 1947, they both signed a release and covenant not to sue Shell, which, because of its importance in this case, is, omitting the verification, set out in full:

'Release and Covenant Not to Sue the Shell Oil Company.

'Read carefully before signing.

'To all to whom these presents shall come or may concern, greetings: Know ye, that Vera Hillyer and Nathaniel Hillyer address 14112 Scioto ave. East Cleveland, Ohio (hereinafter referred to as the claimants) for and in consideration of the sum of three thousand four hundred & thirty-seven 63/100 dollars ($3437.63) lawful money of the United States of America, the receipt of which is hereby acknowledged, do hereby remise, release and forever discharge Shell Oil Company their agents, and servants, and all other persons, firms, and corporations whomsoever of and from any and all actions, claims, and demands whatsoever which claimants now have or may hereafter have on account of or arising out of the accident, casualty and/or event which happened on or about the 2nd day of August 1945, including those consequences thereof which may hereafter develop as well as those which have already developed or are now apparent.

'As a further consideration for said sum claimants warrant that no promise or agreement not herein expressed has been made to claimant; that in executing this release claimants are not relying upon any statement or representation made by the party or parties hereby released or said party's or parties' agents, servants or physicians concerning the nature, extent or duration of the injuries and/or damages, or concerning any other thing or matter, but are relying solely upon their own judgment; that the above mentioned sum is received by claimants in full settlement and satisfaction of all the aforesaid claims and demands whatsoever; that claimants are over twenty-one years of age and legally competent to execute this release; and that before signing and sealing this release claimants have fully informed themselves of its contents and meaning and have executed it with full knowledge thereof. However, it is understood and agreed that said payment of three thousand four hundred and thirty-seven and 63/100 dollars is not adequate compensation for the injuries sustained and the undersigned hereby expressly reserves [sic] all of their rights to obtain full compensation from the city of East Cleveland, Ohio, or any other person, firm or corporation liable for injuries to them.

'In witness whereof, claimants have hereunto set their hands and seals on this 2nd day of July, 1947.

'Vera Hillyer

'Nathaniel Hillyer

'Claimants'

The trial court instructed the jury to disregard entirely the matter of the release and covenant not to sue Shell and submitted the case to the jury upon the issue of the city's obligation under Section 3714, General Code, and the city's failure to keep the sidewalk upon which plaintiff was walking free from nuisance in violation of that section.

From the judgment in favor of plaintiff the city appealed to the Court of Appeals which found that the trial court had committed prejudicial error in not instructing the jury that in arriving at a verdict it should have taken into consideration the sum paid plaintiff by Shell as a pro tanto discharge or satisfaction for the injuries received by plaintiff. However, the Court of Appeals held that the error so committed could be cured by plaintiff accepting a remittitur, in the amount of the sum paid by Shell, as a credit on the judgment, to which remittitur plaintiff consented, and judgment was entered in her favor for the reduced sum.

The cause is before this court upon the allowance of motions to certify the record filed by both plaintiff and the city.

Payer, Bleiweiss, Crow & Mollison and ...