Akron (City) v. Butler

140 N.E. 324, 2 Ohio Law. Abs. 8, 108 Ohio St. 122, 1923 Ohio LEXIS 227

Opinion

ROBINSON, J.

Epitomized Opinion

First Publication of this Opinion

Butler was struck and injured by a truck belonging to the City of Akron and operated by the street cleaning department. At the time of the accident Butler was returning from a trip to the railway station, where he had to deliver a broom shell to be shipped “for a sample.” Butler recovered judgment in the Common Pleas, which judgment was affirmed by the Court of Appeals. The City brought error proceedings in the Supreme Court. Held:

Attorneys — H. M.. Hagelbarger, Law Director, Akron, and C. T. Moore, Columbus, for City; Prank N. Sweitzer, Canton, and Musser, Kimber & Huffman, Akron, for Butler.

The truck was under the management of department whose duties with reference to street cleaning come within the general classification of governmental functions, but whose duties with reference to parks and public property come within the general classification of proprietary functions. The only evidence as to the mission of the truck being that the broom shell was to be shipped “for a sample,” no inference as to which of the two functions the city was engaged in, can reasonably be made. The purpose of the shipment was decisive. Plaintiff thus failed to furnish any proof of the liability of the city. Judgment was reversed and judgment entered for city.