Etzensperger & Orschak v. Cleveland (City)

35 Ohio C.C. Dec. 254, 25 Ohio C.C. (n.s.) 303, 1902 Ohio Misc. LEXIS 280

• Court: Cuyahoga Circuit Court
• Decided: February 11, 1902
• Status: Published

Opinion

HALE, J.

Error is prosecuted in this court to reverse a judgment of the court of common pleas in sustaining a demurrer to ■ the petition.

The petition charges that the city and one Francis Campbell in the winter of 1900 were building an engine-house for the use of the fire department of the city, at No. 36 Hill street in said city. That they so negligently, carelessly and recklessly built and constructed the south wall thereof, which was composed of stone, brick and mortar, that a part of the same, on or about the March 3, 1901, fell down upon the property of the plaintiff which was next to and adjoining said engine-house, and completely demolished and destroyed the same and the contents thereof, to the plaintiff’s damages in the sum of about three thousand dollars.

The petition specifies the particular acts of negligence relied on.

On behalf of the city a demurrer was filed to this petition which was sustained and judgment rendered in favor of the city.

It seems to be well settled that a municipal corporation, acting in its governmental, legislative or judicial capacity, is not responsible for injury caused to person or-property, by its.negligence in the performance of such duties. Whether or not the municipality will exercise such powers is a matter of discretion with the proper officers or board charged with such duty, and such discretion can not be controlled by the courts. But, in the performance of duties which are purely ministerial, a municipal corporation is liable for its negligence in the same manner and to the same extent as private corporations.

We hold that the adoption of plans for and the direction to construct a public building, are acts judicial and governmental and included in the class first named. That the prosecution of the work in the construction of such building in accordance with the plans and determination of the municipality, is purely ministerial, and the duty rests upon the municipality to see that the work is done with ordinary care, and if injury to others is caused by the negligence of the municipality in the performance of such duty, a liability attaches. The petition, then, brings this case within this latter rule and states a cause of action.

The fact that the building is constructed for the use of the fire department, does not change the rule, as above stated.

For error in sustaining the demurrer to the petition and rendering judgment in favor of the defendant, the judgment of the court of common pleas is reversed and the cause remanded for further proceedings.

Caldwell and Marvin, JJ., concur.