Boesel v. Cleveland (City)

LEVINE, PJ.

This case comes here from the Municipal Court of the City of Cleveland. It was alleged and proven that plaintiff was driving his automobile across Warrensville City Farm, on a dirt road, for the purpose of getting across from one public highway to another. The top of the automobile came in contact with an electric wire stretched across the road, in consequence of which plaintiff sustained certain injuries. Among other allegations in plaintiff’s statement of claim, there is language aimed to describe the proprietary function in which the farm is operated by the City. The Municipal Court rendered judgment in favor of the City, on the ground that the management and operation of the farm, including the road in question, was in the exercise of a governmental function.

Plaintiff relies on the case of City of Toledo v. Cone, 41 OS. 149. Defendant relies on the case of Bell v. Cincinnati, 80 OS. 1. The latter case relates to a workhouse guard who was injured while guarding prisoners working in a stone quarry, such injury being caused by an explosion. We quote from the syllabus as follows:

“The Directors of Public Service are invested with the management and control of such workhouse in behalf of the corporation, and in so managing and controlling said workhouse, the municipal corporation, through its director of public service, acts in a governmental capacity, and not in a proprietary or business relation to the inmates or persons in its employ.”

It cannot be disputed that Warrensville Farm is a City Institution on which is conducted a workhouse. It seems, therefore, that the principal laid down in Bell v. City is applicable to the case at bar.

It is alleged and proven that some revenue is derived from the labor of the inmates of the workhouse, and that to- a limited extent, the City of Cleveland is conducting a business from which it derives more or less income. The case of Bell v. City, however, lays down the rule that in such cases the revenue is incidental to the main purpose. The case of Toledo v. Cone, as submitted to the Supreme Court, involved the sufficiency of the petition in stating a cause of action. There was no bill of exceptions brought up as part of the record, and as there was a verdict for the plaintiff in the trial court, the only question that could be reviewed was whether the petition stated a' cause of action that would support the verdict. In distinguishing the two cases, the court, in the Bell case, said:

“The petition, at length, appears in the statement of the cause, and it presents a cause of action signally different from the one relied upon in this case. While we do not question the soundness of the judgment of this court in that case, we are quite sure that it does not rule as the law in the instant case.”

In our opinion there is no escape from the law established in Bell v. City, and the principles therein enunciated are clearly applicable to the case at bar.

It is further claimed by the plaintiff that 3714 GC., relating to the care, supervision and control of public streets, fixes the responsibility of the city in this case.

This dirt road, being located in another municipality, cannot be said to be in the care, supervision and control of the council of the City of Cleveland and, therefore, the city has no statutory duty with reference to same.

Judgment affirmed.

(Sullivan and Vickery, JJ., concur.)