Wilhelm v. City of Defiance

• Decision Date: 01 March 1898
• Citation: 58 Ohio St. 56,50 N.E. 18
• Parties: WILHELM v. CITY OF DEFIANCE.
• Court: Ohio Supreme Court

50 N.E. 18

58 Ohio St. 56

WILHELM v. CITY OF DEFIANCE.

Supreme Court of Ohio.

March 1, 1898

Error to circuit court, Defiance county.

Action by the city of Defiance against Adam Wilhelm. A judgment for defendant in the court of common pleas was reversed on error in the circuit court, and he brings error. Reversed.

The city of Defiance filed its petition against Wilhelm in the court of common pleas, alleging, in substance, that he was the owner of lot 1, abutting on Clinton street, in said city that an ordinance of the city required the owners of lots abutting upon the streets of said city to construct and maintain in front thereof good and sufficient sidewalks (when constructed of wood, to be 6 feet in width, and laid with good, sound pineboard planks, not less than 6 nor more than 12 inches wide, and 1 1/ 2 inches thick, and free from sap and unsound knots, on white or burr oak stringers, etc.) that on November 7, 1889, the council of said city adopted a resolution declaring it to be necessary to improve the walk in front of Wilhelm's lot in accordance with the provisions of the general ordinance relating to wooden sidewalks, and that notice thereof was personally served upon Wilhelm; that Wilhelm thereupon took upon himself the work of constructing and repairing said walk, but constructed it in a negligent manner, and of unfit and defective materials, and left it in an unsafe and dangerous condition, in consequence whereof one Martha L. Sammis, while lawfully passing along said walk, without fault on her part sustained severe injuries, for which, in the court of common pleas, a judgment had been awarded her against the city for $1,500, and $103.53, the costs of sult; that, before the trial of her said action against the city, Wilhelm was notified of the pendency of said action, and that the city would require him to indemnify it for all damages which it might be adjudged to pay her; and that it paid the amount of the judgment so recovered by her, and demanded of Wilhelm that he reimburse it, which he failed to do. The prayer of the petition was for a judgment for the amount which the city so paid to Mrs Sammis. In the court of common pleas a final judgment was rendered in favor of Wilhelm on his demurrer to the petition. On a petition in error by the city, the circuit court reversed the judgment of the common pleas.

Syllabus by the Court

A municipal corporation, having in the proper mode provided for the construction of a sidewalk, and notified the owner of abutting land, may require of him the construction of a sufficient walk in front of his premises, and upon his default may itself construct such walk, and assess the cost thereof upon his land; but it cannot recover from him indemnity on account of a judgment recovered against it for injuries occasioned by such owner's negligent construction of the walk.

Henry & E. H. Newbegin, for plaintiff in error.

Edwin A. Latty, for defendant in error.

SHAUCK, J. (after stating the facts).

In Morris v. Woodburn, 57 Ohio St. 330, 48 N.E. 1097, we held that if the owner of a lot abutting upon a street of a municipality, for the use of his property, constructs a vault under the sidewalk, over which he negligently places and maintains a defective covering, he is liable directly to a foot man injured thereby, notwithstanding the omission by the muncipality of the duty imposed upon it by statute to keep the street in repair. And since the decisions in City of Chicago v. Robbins, 2 Black, 418;Id., 4 Wall 657,-it seems to be the settled law that, if a municipal corporation is held in damages for its failure to keep a sidewalk in repair by removing the source of danger so created by an abutting owner for his own personal ends, it may, having given him notice of the pendency of the suit against it, recover from him the amount which it is adjudged to pay because of his tort. But it is not assumed that the grounds upon which...