State ex rel. Flagg v. City of Bedford, 39770

• Decision Date: 29 June 1966
• Docket Number: No. 39770,39770
• Citation: 7 Ohio St.2d 45,218 N.E.2d 601,36 O.O.2d 41
• Parties: , 36 O.O.2d 41 The STATE ex rel. FLAGG, Appellee, v. CITY OF BEDFORD et al., Appellants.
• Court: Ohio Supreme Court

Page 45

7 Ohio St.2d 45

218 N.E.2d 601, 36 O.O.2d 41

The STATE ex rel. FLAGG, Appellee, v. CITY OF BEDFORD et al., Appellants.

No. 39770.

Supreme Court of Ohio.

June 29, 1966.

Syllabus by the Court

A municipal corporation will not be enjoined from expending funds as and for a public purpose in authorizing additional compensation for the defense of its mayor in a libel action brought as a result of the publication of unprivileged statements by the mayor concerning the conduct of municipal business by the director of law of the municipal corporation, where it does not appear as a matter of law that the mayor's statements were beyond the scope of his employment.

On January 14, 1964, Mayor Roger H. Skove of the city of Bedford called at the office of the Bedford-Times Register and had a conversation with the editor of that publication. As a result of that visit, an article appeared in the issue of the newspaper dated January 16, 1964, in which the mayor was quoted and paraphrased concerning the conduct of the director of law relative to a municipal zoning matter. ¹ The director of law was, on January 25, 1964, discharged by the council and its authority so to do is not challenged here. ² Thereafter, he commenced a libel and slander action against the mayor and the newspaper publisher.

On March 16, 1964, the council adopted a resolution reciting that it was 'desirous of providing an adequate defense to Mayor Roger H. Skove * * * in order that debate on public issues may be open without deterrent from lawsuits * * *' and finding 'that it is in the public interest to provide such an adequate defense' to the mayor. The resolution authorized and directed the successor director of law to defend the mayor against the libel action and provided the former with additional compensation 'along with the necessary and incidental court costs and expenses' for that purpose.

Appellee brought this action as a taxpayer to declare that resolution void and for an injunction restraining any payment of funds for the purposes designated. The Court of Common Pleas granted the relief prayed for and the Court of Appeals affirmed.

Irwin B. Fried, Cleveland, for appellee.

Louis H. Orkin, Director of Law, for appellants.

SCHNEIDER, Judge.

This case cannot serve precisely to chart the shoals of private gifts and benefits from which the legislative authority of a municipal corporation must steer clear in the course of appropriating public funds. This is so for the reason that we cannot, as a matter of law, say on the record before us that the council of Bedford could not reasonably have had a public purpose in adopting the resolution under attack.

If the mayor is granted final judgment in his favor in the libel and slander action, Bedford will be exonerated from its potential vicarious liability for any injury caused by its mayor. 32 Ohio Jurisprudence 2d 91, Judgments, Section 332; 57 C.J.S. Master and Servant Section 619, p. 422; 92 A.L.R.2d 33. It will not be faced in the future with a claim based on the doctrine of respondeat superior.

Whether this would be a legal or moral obligation would, in turn, depend upon the uncertain shifts in the application of the doctrine of governmental immunity. See Hack v. City of Salem, 174 Ohio St. 383, 189 N.E.2d 857. In either event, a consideration of the claim itself would be a proper public function of council, and it could be satisfied as a moral obligation. State ex rel. Caton v. Anderson, 159 Ohio St. 159, 111 N.E.2d 248.

Similarly, council has a legitimate interest in any judgment obtained by the plaintiff in the libel action. This court follows the rule that until the injured party receives full satisfaction, he may sue either the servant, who is primarily liable, or the master, who is secondarily liable, and a mere judgment obtained against the former is not a bar to an action or judgment against the latter. Losito v. Kruse, 136 Ohio St. 183, 24 N.E.2d 705, 126 A.L.R. 1194.

Additionally, there is well-reasoned authority for the rule that the amount of the judgment in favor of plaintiff in the libel suit fixes the maximum limit of the potential liability of Bedford. 50 C.J.S. Judgments § 757, note 27, p. 279.

On the other Hand, whether a servant's libel or slander, or both, is within the scope of his employment is a question for the trier of the facts, under the usual tests. 36 Ohio Jurisprudence 2d 404 et seq., Master and Servant, Section 434 et seq.; 57 C.J.S. Master and Servant, § 617, p. 411.

For a court to answer that question as a matter of law in a taxpayer's action would be premature. It would require adopting the view of the Court of Appeals that the mayor's authority and privilege to speak out on public business are confined to the four walls of the council chambers and then only in a duly convened meeting.

The office of the mayor of Bedford, under its charter, is conferred upon the one councilman elected at large in that city. In addition to floor and voting privileges, he presides over council, is an ex-officio member of all elected and appointed boards and commissions of the city, has the duties of a statutory mayor (not inconsistent with the provisions of the charter), enjoys the right to demand written information from all directors and department heads of the administration, and is the chief magistrate and ceremonial head of the city. He has more specifically enumerated powers over the affairs of Bedford than our Chief Justice has over this court.

In the absence of any...