Soles v. Ohio Edison Co.

• Decision Date: 24 January 1945
• Docket Number: 29934.
• Citation: 144 Ohio St. 373,59 N.E.2d 138
• Parties: SOLES v. OHIO EDISON CO.
• Court: Ohio Supreme Court

59 N.E.2d 138

144 Ohio St. 373

SOLES v. OHIO EDISON CO.

No. 29934.

Supreme Court of Ohio

January 24, 1945

Syllabus by the Court.

1. An occupier of land, either as lessee, tenant or by sufferance owes no duty to a trespasser or licensee upon such land except to refrain from wanton, willful or reckless misconduct which is likely to injure him.

2. Where a power company, upon request of a municipality furnishes electric service at an airport operated by such municipality, and as a part of the equipment to furnish service installs a transformer within a walled enclosure upon the airport property, without a lease or rental agreement for the land within such enclosure but with the knowledge and acquiescence of the municipality, the power company is the occupier of such land by sufferance and is entitled to the same rights as the landowner, as against a trespasser within the enclosure.

3. Where a youth (about 19 years of age), in traveling along a path through such airport property, leaves the beaten path and enters the enclosure above described, one wall of which is down, he thereby becomes a trespasser as against the power company; and if, while so trespassing, he comes in contact with the transformer carrying a high voltage of electricity and is electrocuted, the power company is not liable in damages for his death, in the absence of proof that the company was guilty of wanton, willful or reckless misconduct.

Appeal from Court of Appeals, Mahoning County.

Walter W. Soles (hereinafter called plaintiff), administrator of the estate of Charles W. Soles, a minor, brought this action for wrongful death in the Court of Common Pleas of Mahoning county against the Ohio Edison Company (hereinafter called defendant) based upon the premise that defendant was guilty of negligence which was the proximate cause of the death of plaintiff's decedent.

The facts are substantially as follows:

The city of Youngstown, Ohio, is the owner of a large tract of ground located northeast of that city, upon which it established an airport called Landsdowne Airport. In 1928 the city requested defendant to install electric service at the field and such installation was made in June of that year. As part of such service a transformer was installed upon a concrete base about three and one-half feet wide by six feet long, extending about 12 inches above the ground. The transformer was enclosed on three sides by a close-board picket fence about eight feet high and on the fourth side by a part of the east wall of a hangar. The enclosure was about ten feet square with a gate which was locked and upon which there was a sign 'Danger High Voltage--Keep Away.' There is no evidence that the city ever actually leased or rented the enclosed property to defendant, although the evidence makes clear that the enclosure was maintained with the full knowledge and acquiescence of the city.

On or shortly before June 30, 1931, the city discontinued the airport as a city function and the meter service was closed. Thereafter, until 1942, the airport was operated by private individuals or companies. On the same day that the city discontinued the electric service it was reopened for Aircraft Development Bureau, which continued the service until December 4, 1935. On December 5, 1935, F. Arthur Jones commenced operation of the airport and the service was again reopened. He continued service until March 1941 when the meter was again closed. During all this time the transformer was left in position within the enclosure and the service when not in use was shut off at the meter. In August 1941, the service was again restored for J. Ralph Seidner and was continued until January 1942. The transformer carried about 4,000 volts of electricity. It is undisputed that the public did to some extent travel over and about the airport, and that there was a path through the airport property within 10 to 20 feet from the enclosure housing the transformer.

The decedent, a garage mechanic, lived with his parents about half a mile northeast of the airport. He was 18 years and nine months of age at the time he met his death. At about noon on April 24, 1941, he was seen going in the direction of the airport. The next day at about 5:30 p. m. his body was discovered lying on the ground within the enclosure, in proximity to the transformer. At that time, the fence which formed the east wall of the enclosure was down flat upon the ground. There is testimony that the fence had been down for a month or five weeks before the occurrence; that at the time the body was found the breaks in the fence were fresh and the screws had been forced from the hasp of the lock; that the transformer was upset; that the lid was off, some of the wires were broken and the oil from the transformer was on the cement base; and that within the enclosure a number of stones were found, some of which appeared to be freshly mutilated. There was no eyewitness to what had happend, but it is not disputed that death was caused by electrocution, and that decedent apparently had been dead for some time prior to the discovery of his body.

The jury returned a verdict in favor of plaintiff in the same of $7,500. Within the time limited by law, the defendant filed a motion for a new trial and a motion for judgment notwithstanding the verdict. The court granted the former motion and overruled the latter.

Thereafter, defendant filed an appeal upon questions of law, assigning but one ground of error, namely, that the trial court erred in overruling the motion. The Court of Appeals (by a divided court) affirmed the order of the trial court.

The case is here for review following the allowance of a motion to certify the record.

Harrington, Huxley & Smith, of Youngstown, for appellant.

Taylor & Karam, of Youngstown, for appellee.

BELL Judge.

Defendant insists that it is entitled to judgment in its favor, notwithstanding the verdict.

Section 11601, General Code, provides as follows: 'When, upon the statements in the pleadings or upon the evidence received upon the trial, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party * * *.' (Italics ours.)

The defendant's contention is based upon the proposition that the decedent was a trespasser or a licensee, and that it owed him no duty except to refrain from wanton, willful or reckless misconduct which was likely to injure him. On the other hand plaintiff claims that defendant owed decedent the duty to exercise ordinary care for his safety and is liable if his death was proximately caused by defendant's negligence.

The plaintiff's petition charges defendant with negligence. It contains no allegation of wanton, willful or reckless misconduct nor was any evidence offered which proved or tended to prove such misconduct.

It is necessary, therefore, to determine what duty the defendant owed the decedent and whether there was a breach of such duty.

Where one goes upon the land of another he is either an invitee, a licensee, or a trespasser.

The plaintiff's decedent was not an invitee upon the premises, and under the most favorable interpretation of the evidence he was at best a mere licensee upon the property of the city. It is not seriously contended that such relation is not true as to the city, but it is asserted that defendant cannot avail itself of a defense based on that...