Pancake v. Wakefield
| Decision Date | 25 October 1956 |
| Parties | , 1 O.O.2d 473 PANCAKE, Appellant, v. WAKEFIELD et al., Appellees. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The state and its political subdivisions may not be sued, except as specially authorized by statute.
2. Under Section 305.12, Revised Code, a board of county commissioners is liable for damages directly and proximately resulting from the negligence of its agents and employees in piling crushed stone on the traveled portion of a county highway.
3. It is not necessary, as a condition precedent to maintaining an action for damages for personal injuries resulting from negligence of the county commissioners in failing to keep a county highway in proper repair, to first present a claim to the board of county commissioners.
4. A demurrer to an answer searches the record and challenges the sufficiency of the petition.
Samuel B. Erskine, Athens, for appellant.
C. E. Berry and Rowland, Bridgewater & Gray, Athens, for appellees.
The plaintiff, appellant herein, instituted this action in the Common Pleas Court of Athens County against the board of county commissioners of that county, seeking to recover damages for personal injuries alleged to have been sustained by him when an automobile in which he was traveling ran into a pile of crushed stone, alleged to have been negligently piled on the traveled portion of the highway by the agents and employees of the board of county commissioners. The parties will be referred to in this opinion as the plaintiff and defendant.
A demurrer, filed to plaintiff's petition on the ground that the petition did not state a cause of action under Section 2408, General Code, Section 305.12, Revised Code, was overruled by the trial court and the appeal from that order was dismissed by this court for the reason that the order lacked finality and was, therefore, not subject to an appeal.
Prior to this first appeal, the defendant had filed an answer and, later, an amended answer, the third defense of which is that plaintiff's right of action, if any, is barred for the reason that the plaintiff did not present his claim to the board of county commissioners for allowance or rejection as required by Section 2460, General Code, Section 307.55, Revised Code. Plaintiff's demurrer to this third defense of defendant's answer was overruled, his petition dismissed and final judgment rendered for the defendant. The plaintiff has perfected his appeal on questions of law from that judgment.
The pleadings, oral arguments and briefs raise the following three questions of law to be determined by this court in this appeal:
(1) Is it necessary, in an action for damages for personal injuries resulting from negligence of the county commissioners in failing to keep a county highway in proper repair, to first present the claim to the board of county commissioners as a condition precedent to maintaining such action?
(2) Does a demurrer to an answer in such an action search the record to such an extent as to test the sufficiency of the petition?
(3) Under Section 2408, General Code, Section 305.12, Revised Code, is the board of county commissioners liable for damages directly and proximately resulting from its negligence in piling crushed stone on the traveled portion of a county highway?
These questions will be considered in the order stated.
The defendant contends that under Section 2460, General Code, Section 307.55, Revised Code, the plaintiff's exclusive remedy is an appeal from the rejection of the claim by the board after it has been presented and disallowed. That statute, so far as pertinent, reads as follows:
'No claims against the county shall be paid otherwise than upon the allowance of the board of county commissioners, upon the warrant of the county auditor, except in those cases in which the amount due is fixed by law or is authorized to be fixed by some other person or tribunal * * *.'
The rule is well recognized that the state and its political subdivisions may not be sued, except as specially authorized by statute. In the enactment of such legislation the Legislature may prescribe the conditions under which counties may be sued, and in several states the statutes provide that, as a condition precedent to an action against the county, the claim, whether based on contract or tort, must first be presented for allowance to the board of county commissioners. 14 American Jurisprudence, 229, Section 67. There is no such statute in Ohio.
In all the cases cited and relied upon by the defendant, the claims against the county were predicated on contracts for services or supplies furnished to the county. It should be remembered that this is an action in tort for negligence. In the case of Board of Commissioners of Hardin County v. Coffman, 60 Ohio St. 527, 54 N.E. 1054, 48 L.R.A. 455, it is held:
'An action under section 845, of the Revised Statutes * * * to recover damages cause by the negligence of the county commissioners in failing to keep a bridge under their control in repair, is properly brought against the board in its official capacity, and the county is bound for the payment of the judgment recovered.'
And, 14 American Jurisprudence 230, Section 67, reads as follows:
(Emphasis added.)
Even though the claim is based on contract, the remedy by appeal is not exclusive. 14 Ohio Jurisprudence (2d), 407, Section 262, reads as follows:
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