Scheurer v. Trustees of Open Bible Church

• Decision Date: 10 July 1963
• Docket Number: No. 37520,37520
• Citation: 192 N.E.2d 38,175 Ohio St. 163,23 O.O.2d 453
• Parties: , 23 O.O.2d 453 SCHEURER, Appellee, v. TRUSTEES OF the OPEN BIBLE CHURCH, Appellants.
• Court: Ohio Supreme Court

Page 163

175 Ohio St. 163

192 N.E.2d 38, 23 O.O.2d 453

SCHEURER, Appellee, v. TRUSTEES OF the OPEN BIBLE CHURCH, Appellants.

No. 37520.

Supreme Court of Ohio.

July 10, 1963.

Syllabus by the Court

1. A policeman entering upon privately owned premises in the performance of his official duty without an express or implied invitation enters under authority of law and is a licensee.

2. Where a policeman enters upon private premises in the performance of his official duties under authority of law and is injured, there is no liability where the owner of the premises was not guilty of any willful or wanton misconduct or affirmative act of negligence; there was no hidden trap or violation of a duty prescribed by statute or ordinance (for the benefit of the policeman) concerning the condition of the premises; and the owner did not know of the policeman's presence on the premises and had no opportunity to warn him of the danger.

This is a negligence action for personal injury to a policeman, who was injured when he fell into an open excavation on defendants' premises while making an investigation in answer to a radio call that 'kids' were breaking into defendants' church building.

A jury was waived, and the action was tried before a three-judge court. Defendants moved for judgment at the close of plaintiff's evidence on the ground that the plaintiff had failed to establish a cause of action entitling him to recover under the Ohio law.

The trial court overruled the motion, and defendants rested without presenting any evidence and renewed their motion for judgment.

The court found the plaintiff entitled to recover and entered judgment in the amount of $7,500.

The Court of Appeals affirmed the judgment of the trial court.

This cause is before this court upon the allowance of a motion to certify the record.

Gongwer, Murray & Brown, Mansfield, for appellants.

Ross, Sauter & Lett, Mansfield, for appellee.

O'NEILL, Judge.

The plaintiff, Robert Secheurer, was a member of the police force of the city of Mansfield, Ohio, and the defendants were trustees of The Open Bible Church, located in that city.

On October 19, 1956, at about 10:50 p. m., the plaintiff was on cruiser duty, patrolling the streets of Mansfield. The patrol car received a report by radio of a complaint by someone, not shown in any way to be connected with the church that 'kids' were breaking into The Open Bible Church on Park Avenue East in the city of Mansfield. The plaintiff and his cruiser partner, Lieutenant Letizia, went to the church, parked their car and began investigation of the report.

The church was located on the north side of Park Avenue East. It had a main front door and a side door on the west side of the building, approximately 100 feet north of the public sidewalk located in front of the church. This side door was frequently referred to as a back door. There was an asphalt improved alleyway or driveway which extended along the west side of the church a distance of about 100 feet. This alleyway was owned by the church.

The church owned also the residence property immediately west of the alleyway. The church was engaged in the construction of a fellowship hall on the back yard of the residence property. This construction project had progressed to the point of excavation for the foundation. The excavation had been completed that day. This excavation was 30 feet wide, east and west, and 40 feet long, north and south. The southeast corner of the excavation was located approximately opposite the side door of the church proper and was 10 1/2 feet deep at that point. The location of the excavation was such that if one proceeded straight north in the alleyway in line with the alleyway and did not stay within 8 or 10 feet of the west wall of the church proper he would run into the excavation.

The excavation was unguarded and unprotected with ropes, guardrails or a barricade, and none of the dirt from the excavation had been piled in the alleyway to alert a person moving through the alleyway. Several planks had been laid diagonally across the southeast corner of the excavation.

The plaintiff left the patrol car and went to the entrance of the alleyway. Letizia went to the front door of the church. They had agreed that the plaintiff would enter the side door of the church and Letizia would enter the front door of the church, and thus anyone inside the church would be driven into the arms of one of the other in any effort to escape.

Plaintiff paused near the sidewalk in front of the church at the entrance of the alleyway and, holding his flashlight in his left hand to the limit of his reach, flashed it in an arc to determine whether there were any persons in the driveway. He was attempting to determine whether he could see them or see their shadows or silhouettes. Plaintiff turned the flashlight off so that he would not make a good target. He trotted, jogged or ran back in the alleyway, in absolute darkness without using his flashlight again, for a distance of 70 to 100 feet to a point where he fell into the unguarded and unlighted excavation in the vicinity of the southeast corner thereof.

He sustained a serious injury to his right fibula and ankle.

The questions before this court are questions of law as to (1) what was the plaintiff's status on the defendants' premises, (2) what was the duty owed by the defendants to the plaintiff, and (3) was the plaintiff guilty of such contributory negligence as to bar him from recovery as a matter of law.

The defendants raise no question as to the amount of the damages in the event they are found liable as a matter of law.

The defendants contend that plaintiff was a licensee on defendants' premises, and that the defendants owed the policeman no duty except to refrain from injuring him willfully or wantonly and to exercise ordinary care to avoid imperiling him by any active conduct.

The plaintiff's position is that, although a series of Ohio cases apply the above rule to firemen, there is an actual factual difference existing between firemen and policemen, and that Ohio has recognized this difference.

The plaintiff cites no cases for his position that there should be a distinction drawn between firemen and policemen, and there are no cases in other jurisdictions which make such distinction.

All the text writers and the cases treat firemen and policemen together under one rule.

The force and weight of the plaintiff's argument that there is a difference between a policeman and a fireman in these circumstances and that the law should recognize it is not impressive.

It is agreed that there are no Ohio cases in which this precise question as to the status of a policeman has been decided. It is the further contention of the plaintiff that the courts of Ohio are in the process of recognizing a difference in status between persons who come upon the property of the owner at the mere sufference of the owner, as contrasted with a person who comes on the property for either the benefit of the owner or in the discharge of a public duty which incidentally benefits the owner. Elliman v. Gombar, 86 Ohio App. 352, at page 355, 91 N.E.2d 801, at page 803, is cited for this position.

The Elliman case does not support this proposition. In fact, the syllabus states the law to be otherwise. Even the dicta at page 355, 91 N.E.2d at page 806 must be strained to give any comfort to the plaintiff.

The plaintiff relies heavily upon the cases of Pennsylvania R. Co. v. Vitti, Admr., 111 Ohio St. 670, at page 677, 146 N.E. 94 at page 96, and Cleveland, Cincinnati, Chicago & St. Louis R. Co. v. Potter, 113 Ohio St. 591, page 603, 150 N.E. 44 at page 47, and the dissent by Judge Sherick in the case of Lagonda Citizens National Bank v. Knowles, 18 Ohio Laws Abs. 657, at page 663, for his assertion that the question of whether the plaintiff was a bare licensee or something more than a bare licensee was a jury question.

Pennsylvania R. Co. v. Vitti, Admr., supra, is distinguishable from the case at bar. In that case plaintiff, assisting a police officer in locating and arresting certain persons on defendant's premises, was directed by an employee of defendant as to where he should go on defendant's premises, and the plaintiff was injured by the active negligence of another employee of the defendant. In the instant case it is agreed that there was no request or direction by the defendants or their employees to go on the premises and no active negligence.

Likewise, Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Potter, supra, and the dissent in the case of Lagonda Citizens National Bank v. Knowles, supra, are of no great help in determining this case.

The plaintiff relies further upon a New York case, Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R. 633. In that case the New York court was equally divided, three to three, in affirming a judgment where plaintiff, a fireman, was permitted to recover for injuries received when he fell into a hole in a public passageway on the permises of the defendant as plaintiff was making his way to the place of the fire on defendant's premises. See Maloney, Admx. v. Hearst Hotels Corp., 274 N.Y. 106, 110, 8 N.E.2d 296.

The plaintiff also cites a four-to-three decision by the Illinois Supreme Court, in the case of Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184, where the court reversed previous rulings of that court and held, as reported in the North Eastern Reporter headnotes, that 'a fireman performing his duty on private property is an 'invitee,' not a mere 'licensee,' so that property owner is held to duty of reasonable care.'

In refusing to follow stare decisis, the Illinois court, in its opinion, said:

"Stare decisis' ought not to be the excuse for a decision where reason is lacking.'

In the Illinois case, there were serious violations of building ordinances and much evidence which tended to show that the injury to the fireman...