Opinion
Nos. 30054 and 30056
Decided August 8, 1945.
Negligence — Municipal corporation and county commissioners not joint tort-feasors — Construction or maintenance of county road within municipality — County and municipality not authorized to jointly construct or repair such road — County commissioners authorized to construct such road, with consent of council — Or to repair portion of such road, with consent of council — Sections 6949 and 6954, General Code — Pleading — Cause of action not stated in petition — Alleged joint control by county and municipality of county road in municipality — Construction and repair jointly created and maintained nuisance causing injury.
1. A board of county commissioners is granted authority by Section 6949, General Code, to construct any proposed road improvement into, within or through a municipality, when the consent of the council of such municipality has been first obtained, and Section 6954, General Code, grants authority to a board of county commissioners to repair that portion of a county road extending into or through a municipality, or a part of a county road and a city street extending into or through a municipality and forming a continuous road improvement, provided the consent of such municipality is first obtained.
2. There is no authority in law for a county and a municipality to jointly construct or repair that portion of a county road within such municipality.
3. A municipal corporation and a board of county commissioners are not joint tort-feasors and are not jointly liable for injuries resulting from negligence in the construction or maintenance of a county road improvement into, within or through a municipality.
4. A petition which avers that a county and a municipality had joint control and maintenance of a dedicated highway (county road) located in a municipality and, in the construction or repair thereof, jointly created and jointly maintained a nuisance which was the proximate cause of plaintiff's injury, fails to state a cause of action.
APPEALS from the Court of Appeals of Cuyahoga county.
On July 18, 1941, Dairies H. O'Neill filed her petition in the Court of Common Pleas of Cuyahoga county against the city of Cleveland and the county commissioners of Cuyahoga county for damages for personal injuries which she claimed to have sustained in an automobile collision which occurred about 1:45 a. m. on December 10, 1939, while she was riding as a passenger in an automobile being driven and operated on Bulkley boulevard in the city of Cleveland. The city and the county commissioners each filed a demurrer to the petition, which was sustained. Thereafter plaintiff filed an amended petition. The allegations upon which liability is claimed against the defendants as set forth in the amended petition are as follows:
"That Bulkley boulevard is a duly dedicated highway located in the city of Cleveland, Ohio * * * and that said Bulkley boulevard, and particularly the portion and conditions hereinafter described were erected and constructed and at all times hereinafter referred to were under the joint control, maintenance and direction by and of defendants, the city of Cleveland and the commissioners of the county of Cuyahoga.
"On or about December 10, 1939, at approximately 1:45 a. m., the plaintiff was riding as a passenger in an automobile which was being driven and operated in a generally westerly direction on, over, and along said Bulkley boulevard at a point near its intersection with Tillman avenue and West 45th street, when by reason of the negligence, carelessness, and unlawful conduct of the defendants as hereinafter set forth said motor vehicle was caused violently and forcibly to strike and collide with an easterly bound automobile causing the plaintiff the serious injuries hereinafter described.
"Bulkley boulevard originates at the westerly approach to the Main avenue bridge and extends westerly therefrom. From the point of its origin to a point near its intersection with Tillman avenue and West 45th street, Bulkley boulevard is approximately 80 feet wide and is divided into two one-way traffic lanes which are separated by a six foot strip of raised land, closed to traffic. Each of said traffic lanes are [ sic] approximately 36 feet wide and accommodate several rows of motor cars; the northerly lane is used by west bound traffic and the southerly lane by east bound traffic.
"Said highway at the time herein complained of contained a dangerous defect and constituted a nuisance in that as Bulkley boulevard approaches Tillman avenue and West 45th street from the east, it suddenly narrows and is transformed from a two lane roadway into a single lane highway, which single lane carries both easterly and westerly bound traffic; at the same point the said Bulkley boulevard turns sharply to the north. The effect of these conditions is that the single lane roadway, which carries both easterly and westerly bound traffic, just west of the turn resembles a continuation of the northerly double traffic lane above described, particularly during the night season. There is thus suddenly created to the driver of a westerly bound motor vehicle a twisting, turning, and narrow bottleneck through which both east and west bound traffic must pass under sharply altered road conditions which are extremely hazardous. The driver of the automobile in which the plaintiff was riding was a nonresident of the city of Cleveland and county of Cuyahoga, and was not familiar with the situation above described.
"At the time and place complained of the defendants negligently, recklessly and unlawfully constructed and maintained said Bulkley boulevard in the dangerous, unsafe, and hazardous fashion above described; negligently, recklessly, and unlawfully caused, created and maintained a nuisance and a hazard to normal traffic; negligently, recklessly, and unlawfully failed and neglected, by means of signs, illumination or otherwise, to warn or apprize the plaintiff or the driver of the automobile in which she was riding of the hazardous condition aforesaid; negligently, recklessly, and unlawfully failed and neglected properly to illuminate Bulkley roadway at said point or otherwise to apprize the plaintiff or the driver of the automobile in which she was riding of the dangerous condition aforesaid; negligently, recklessly, and unlawfully caused, allowed and permitted the existence and continuation of a trap in that west bound motorists were not apprised of the transformation of said two lane highway into a one lane highway, but on the contrary were lulled into the false belief that such two lane highway, whereon there was a separation of easterly and westerly bound traffic by a six foot raised strip in the middle, continued; and negligently, recklessly, and unlawfully failed and neglected to maintain said highway open, in repair, and free from nuisance.
"The plaintiff did not know or could not see or in the exercise of ordinary care have discovered the hazards, dangers and nuisance created and maintained by the defendant, so that, solely and proximately as the result of the negligence, recklessness, and unlawful conduct of the defendants herein set forth, the automobile in which plaintiff was riding collided with another automobile proceeding easterly at the above described twisting bottleneck and plaintiff was seriously injured as hereinafter set forth."
The city and the county commissioners each filed a motion to strike the amended petition from the files. The court treated the motions as demurrers and sustained each of them. Plaintiff not desiring to plead further, the court dismissed the action and entered judgment for the defendants.
Upon appeal on questions of law the Court of Appeals (one judge dissenting) reversed the judgment of the trial court for error of law in sustaining the demurrers to the amended petition and remanded the cause to the Court of Common Pleas.
The city and the county commissioners each filed a separate motion for an order requiring the Court of Appeals to certify the record. Both motions were allowed.
Messrs. Miller, Daus Schwenger, for appellee.
Mr. Thomas A. Burke, Jr., director of law, Mr. Joseph H. Crowley and Mr. James M. McSweeney, for appellant city of Cleveland.
Mr. Frank T. Cullitan, prosecuting attorney, Mr. Ralph W. Edwards and Mr. A.M. Braun, for appellant county commissioners of Cuyahoga county.
The demurrers admit all of plaintiff's well-pleaded allegations of fact but do not admit conclusions of law.
It should be kept in mind that no liability arises against either a municipal corporation or a county in connection with the supervision and control of streets, roads or bridges in the absence of a statute creating a liability.
The duties and liabilities of a municipal corporation in connection with its public ways are defined by Section 3714, General Code, which reads as follows:
"Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, * * * sidewalks, * * * within the corporation, and shall cause them to be kept open, in repair, and free from nuisance."
Likewise the duties and liabilities of county commissioners in connection with county roads and bridges are defined by Section 2408, General Code, which reads in part as follows:
"The board shall be liable in its official capacity for damages received by reason of its negligence or carelessness in not keeping any such road or bridge in proper repair * * *."
It should be observed that we are not called upon to determine whether a good cause of action could be stated against either defendant if sued separately. The single question presented is whether the amended petition states a cause of action against the defendants as joint tort-feasors. It should be kept in mind also that the injuries of which the plaintiff complains were sustained by reason of a collision of two motor vehicles traveling in opposite directions upon a street about 36 feet wide. With these facts clearly before us we now proceed to an analysis of the plaintiff's petition.
The claim that defendants are joint tort-feasors is based upon the allegation of the petition "that Bulkley boulevard is a duly dedicated highway located in the city of Cleveland, Ohio * * * and that said Bulkley boulevard, and particularly the portion and conditions hereinafter described were erected and constructed and at all times hereinafter referred to were under the joint control, maintenance and direction by and of defendants * * *."
That allegation is partially an allegation of fact and partially a conclusion of law.
Counsel for the defendant county commissioners assert that the allegation that the road was under the joint control, maintenance and direction of the defendants is not only a conclusion of law but that such conclusion is impossible under the statutes of this state.
Section 7464, General Code, provides that the public highways of the state shall be divided into three classes, namely, state roads, county roads and township roads.
Section 7467, General Code, provides in part:
"The state, county and township shall each maintain their respective roads as designated in the classification hereinabove set forth * * *."
By the provisions of Section 3714, General Code, the council of each municipality is charged with the care, supervision and control of public highways, streets, etc., within the confines of the municipality.
Section 1189, General Code, provides for state highway routes into or through municipalities, and Section 1189-2, General Code, provides that the Director of Highways may construct, reconstruct, improve, widen, maintain or repair any section of a state highway within the limits of a municipal corporation, but he shall first obtain consent of the council or other legislative authority of such municipal corporation.
Section 6949, General Code, provides that the board of county commissioners may construct a proposed road improvement into, within or through a municipality, when the consent of the council of the municipality has been first obtained.
Section 6954, General Code, provides that the board of county commissioners of a county may repair that portion of a county road extending into or through a municipal corporation or a part of a county road and a city or village street or streets extending into or through a municipal corporation and forming a continuous road improvement when the consent of the council of the municipal corporation has been first obtained.
These statutes make clear beyond doubt that neither the state nor the county in the maintenance of their highway systems has the right or authority to either construct or repair that portion of a state highway or county road within the limits of a municipal corporation, without the consent of such municipality, and it is equally clear that there is no authority in law for a county and a municipality to jointly construct or repair that portion of a county road within a municipality.
The petition is devoid of any allegation as to whether the work was actually performed by the board of county commissioners or by the city. If the work was actually done by the county commissioners there is no allegation that it was done with the consent of the city.
Assuming that the work was done by the county commissioners with the consent of the city and assuming further that because of faulty construction a nuisance was created, the plaintiff's cause of action against the county commissioners, if any, would be predicated upon their negligence in performing the work, and her cause of action against the city, if any, would be predicated upon its breach of the statutory duty imposed by Section 3714, General Code. If liability exists it is apparent that the basis of such liability of the county commissioners is different from that of the municipality.
If a judgment were recovered in a separate action against a municipality for failure to comply with its statutory duty under Section 3714, General Code, and it were shown therein that the injury was caused by the negligence of the board of county commissioners in the construction or repair of that portion of a county road within the municipality, the city after payment of such judgment would be entitled to indemnification from the county. See City of Zanesville v. Fannan, 53 Ohio St. 605, 42 N.E. 703, 53 Am. St. Rep., 664, and Morris v. Woodburn, 57 Ohio St. 330, 48 N.E. 1097.
On the other hand if a judgment were recovered under such circumstances against the board of county commissioners, the county would have no right of indemnification from the city.
This court had occasion to consider a question somewhat similar to the question here presented in the case of Larson v. Cleveland Ry. Co., 142 Ohio St. 20, 50 N.E.2d 163. Judge Hart, in discussing the question there presented, at page 33 said:
"The primary test of joint tort-feasors is whether the plaintiff has a single cause of action against such tort-feasors, or whether he has only a several cause of action against each of them. If he has the former, he is entitled to a joint judgment against such tort-feasors, although he may elect to sue either of them separately on such cause of action. A joint judgment against two or more tort-feasors is proper only where, because of their relationship, concert of action, or independent but concurrent action, each is vicariously responsible for the wrongful acts of the other or others to the extent of the entire damage done. 4 Restatement of the Law of Torts, 434, Sections 875 and 882.
"On the other hand, a joint judgment cannot be properly rendered against persons under a several liability, merely. Mason v. Alexander, 44 Ohio St. 318, 333, 7 N.E. 435. And the permissive joinder of defendants is not enough to warrant a joint judgment against tort-feasors unless they are joint tort-feasors. Ader v. Blau [ 241 N.Y. 7, 148 N.E. 771, 41 A.L.R., 1216], supra."
The conclusion is inescapable that the city and the board of county commissioners are not joint tort-feasors and are not jointly liable. It therefore follows that the petition which charges only joint negligence fails to state a cause of action against the defendants jointly or either defendant severally.
In reversing the judgment of the Court of Common Pleas, the Court of Appeals erred and its judgment must be and hereby is reversed, and the judgment of the Court of Common Pleas should be and hereby is affirmed.
Judgment reversed.
WEYGANDT, C.J., TURNER, MATTHIAS and HART, JJ., concur.