Besser v. Board of Commissioners

Plaintiff, for his cause of action herein, by way of petition in the Court of Common Pleas of Muskingum county, Ohio, averred that on or about the 7th day of August, 1936, defendant was in possession and control of the county jail of Muskingum county, Ohio.

Plaintiff alleged that he was confined in the Muskingum county jail by an order of the Common Pleas Court of Muskingum county, Ohio, for contempt for refusal to pay alimony to his wife on a previous order of the court, and that he was committed to the county jail on August 1, 1936; and through carelessness and negligence of this defendant in control of the county jail, plaintiff says that on August 7, 1936, while still a prisoner in the jail, another prisoner, named Alber Burgoon, was also confined in the same jail, and during the night of August 7, 1936, Alber Burgoon had a fit and jumped on plaintiff's leg and mashed his shins on a bed rail in the jail and severely bruised plaintiff's leg and made an abrasion on the skin of plaintiff's leg. He further avers that the leg became badly swollen and that he is still suffering from the attack; whereby he was compelled to be under a physician's care for several months and incurred an expense of $200; for all of which he prays judgment for $50,000.

To this petition a demurrer was filed on the grounds that the petition did not state facts sufficient to constitute a cause of action. The Common Pleas Court sustained the demurrer and this cause is now in this court upon appeal from that holding on questions of law.

At common law neither counties nor county commissioners were liable for negligence. Liability, if any, is statutory. It was decided very early in the history of the Supreme Court of Ohio, as organized under the Constitution of 1851, that the board of commissioners of a county are not liable in their quasi-corporate capacity, either by the statute of that date or at common law, in an action for damages for an injury resulting to a private party by their negligence in the discharge of their official duties, and this rule has been steadily followed except as modified by statute. The reason for this rule may be stated as follows:

"`There is a class of public corporations, sometimes called civil corporations, and sometimes quasi corporations, that, by the well-settled and generally accepted adjudications of the courts, are not liable to a private action in damages, for negligence in the performance of their public duties, except when made so by legislative enactment. * * * The reason for such exemption from liability is that organizations of the kind referred to are mere territorial and political divisions of the state, established exclusively for public purposes connected with the administration of local government. They are involuntary corporations [exercising governmental functions], * * * to be exercised for the public good, in behalf of the state * * *. They are no less than public agencies of the state, invested by it, of its own sovereign will, with their particular powers, to assist in the conduct of local administration, and execute its general policy, * * * and hence, are clothed with the same immunity from liability as the state itself.'" 11 Ohio Jurisprudence, 538, Section 265.

While it is true that, in certain cases, local governments may be liable for the torts of their agents while acting in their corporate capacity, they are not liable for actions done in their governmental capacity. The erection of county jails and workhouses are governmental functions within that rule. Hence, in the absence of a statute to the contrary, the county or a city is not liable to a prisoner in such jail or workhouse for injuries received by him through the wrongful actions of the officers thereof. For the same reason a county or a municipal corporation is not liable in an action for negligence to a person who is injured while operating a defective machine in a workhouse, to which he has been sentenced at hard labor upon conviction of an offense against an ordinance of the city or the statutes of the state, even though the person in charge had knowledge of the condition of such machinery and the city was negligent. Green v.Muskingum County (Commrs.), 13 O.C.D., 43, 3 C.C. (N.S.), 212.

In 46 A.L.R., 94, at 100, we find:

"As a general rule a municipal corporation is not liable for injuries to prisoners or convicts resulting from the negligence of the keeper, guard, policeman, or convict boss in charge of them, for the reason that, in the maintenance of a jail and the working of convicts, the municipality is exercising governmental powers and discharging governmental duties, and can not be held responsible for the negligence or misconduct of officers which it must, of necessity, employ."

It has been held that a municipal corporation is not liable for personal injuries sustained by one prisoner at the hands of another confined in the same cell or room of the city prison, notwithstanding the fact that the police officer who arrested the plaintiff and put him in prison may have been guilty of wrong or negligence in confining him with an intoxicated fellow prisoner, who was, on that account, violently dangerous.Wilson v. The Mayor and Council of Macon, 88 Ga. 455,14 S.E. 710. Also, 46 A.L.R., 100 to 104.

In the instant case, as shown by the pleadings, this suit is brought against the Board of County Commissioners of Muskingum County, Ohio. There is no statute in Ohio which changes the rule as laid down in the foregoing cases, and we are of the opinion that the cases cited by appellant do not apply in the instant case, because in those cases the action was against an officer for his failure to perform his duty. In this case the county and county commissioners are in their proper performance of a governmental function and as such are not liable.

It therefore follows that the judgment of the Court of Common Pleas was right in sustaining the demurrer, and it follows, therefore, that the judgment of the court below is affirmed.

Judgment affirmed.

MONTGOMERY and SHERICK, JJ., concur.