
    Wilhelm v. The City of Defiance.
    
      Municipal corporation — May require construction of sidewalk by property owner, when — Liability for negligent construction.
    
    A municipal corporation, having in the proper mode provided-for the construction of a sidewalk and notified the owner of abutting land, may require of him the construction of a sufficient walk in front of his premises, and, upon his default, may itself construct such walk and assess the cost thereof upon his land; but it cannot recover from him indemnity on account of a judgment recovered against it for injuries occasioned by such owner’s negligent construction of the walk.
    (Decided March 1, 1898.)
    Error to the Circuit Court of Defiance county.
    The city of Defiance filed its petition against Wilhelm in the court of common pleas alleging in substance that he was the owner of lot one abutting on Clinton street in said city; that an ordinance of the city required the owners of lots abutting upon the streets of said city to construct and maintain in front thereof good and sufficient sidewalks, when constructed of wood, to be six feet in width and laid with good sound pine board planks not less than six nor more than twelve inches wide and one and one-half inches thick, and free from sap and unsound knots, on white or burr oak stringers, etc.; that on November 7, 1889, the counsel of said city adopted a resolution declaring it to be necessary to improve the walk in front of Wilhelm’s lot in accordance with the provisions of the general ordinance relating to wooden sidewalks, and that notice thereof was personally served upon Wilhelm; that Wilhelm thereupon took iipon himself the work of constructing and repairing said walk, but constructed it in a negligent manner and of unfit and defective materials and left it in an unsafe and dangerous condition in consequence whereof, one Martha L. Sammis while lawfully passing along said walk, without fault on her part, sustained severe injuries for which in the court of common pleas a judgment had been awarded her against the city for $1,500.00, and $103.53 the costs of suit; that before the trial of her said action against the city, Wilhelm was notified of the pendency of said action and that the city would require him to indemnify it for all damages which it might be adjudged to pay her; and that it paid the amount of the judgment so recovered by her and demanded of Wilhelm that he reimburse it, which he failed to do. The prayer of the petition was for a judgment for the amount which the city so paid to Mrs. Sammis.
    In the court of common pleas a final judgment was rendered in favor of Wilhelm on his demurrer to the petition.
    
      On a petition in error by the city the circuit court reversed the judgment of the common pleas.
    
      Henry c& E. II. Neiohegin, for plaintiff in error.
    That the plaintiff in error was not liable to the person injured on account of the defective sidewalk, was conclusively settled in the case of Sammis v. Vilhelm, 6 C. C. R., 565; 3 C. D., 587; and this decision will not be reviewed here. The judgment of the court of common pleas against the city, which it was satisfied to pay off and discharge without further contest, also settled the liability of the city for the injury to Mrs. Sammis.
    But, without reference to the above decision of the circuit court, under the law, no liability was cast upon Wilhelm for the injury on account of the defective sidewalk. The sidewalk was a part of the public street, under the entire control of the city, and, in regard to it, Wilhelm owed no duty to the public, whatever. In Ohio, and in most states, sidewalks are a part of the public street. By statute, Michigan is an exception. Dillon on Mun. Corps., sections 1008,1012; In re Burmeister, 76 N. Y., 174; Pomfrey v. Village of Saratoga Springs, 104 N. Y., 459; Taber v. Graf miller, 109 Ind., 206; Revised Statutes, sections 2640, 2328-30; Vandyke v. City of Cincinnati et al., 1 Dis., 532; Noonan v. City of Stillwater, 33 Minn., 198; Taylor v. Lake Shore By. Co., 45 Mich., 74; Ileeney v. Sprague, 11 R. I., 456; Flynn-v. Canton Co., 40 Md., 312; Kirby v. Boylston Market Association, 14 Gray, 249.
    The following eases hold the same in substance as the foregoing: Betz v. Limingi, 46 Lou. Ann., 1113; City of Keokuk v. Independent Dist. of Keokuk, 53 Iowa, 352; City of Hartford v. Talcott, 48 Conn., 525; City of Bochester v. Campbell, 123 N. Y., 405; Tiedeman on Mun. Corps., section 348; Yol. 9 Am. and Eng. Enc. of Law, page 395, par. 10 and note 3.
    If Wilhelm had done any act which rendered the use of the street hazardous to passers thereon, such as making an excavation under the sidewalk without proper supports, or hy leaving unsafe hatchways thereon, or leaving open a coal hole, or actually placing an obstruction in the street so that he would have been liable to the person injured in an action directly against himself (Dillon Mun. Corps., section 1032), and the city had been obliged to respond in a judgment against it, on account of injury tQ the passer-by, then it probably could have recovered in this action against Wilhelm, as it would have been subrogated to the rights of the person injured. City of 'Rochester v. Campbell, 123 N. Y., 412. But to have this right of action over against Wilhelm, the city must have been without fault itself. That the city was negligent of its duty to keep the sidewalk in repair under section 2640, Revised Statutes of Ohio, is conclusively settled by this court in Village of Cardington v. Admr. of Fredericks, 46 Ohio St., 442; and see Cleveland v. King, 132 U. S., 295.
    The city, then, being at fault, if we concede that Wilhelm also was at fault, there can be no recovery over by the city against Wilhelm for the reason that one of two joint wrongdoers can not have contribution from the other. Chicago City v. Robbins, 2 Black, 418. Addison on Torts, Yol. 2 (Wood’s Ed.), last par., section 1394 and note 1.
    But if not liable directly to the injured person he could not be held liable indirectly to the city for damages suffered by the injured person through its fault. TJrquhm't v. City of Ogdens
      
      burgh, 97 N. Y., 238; City of St. Louis v. Conn. Mutual Life Ins. Co., 107 Mo., 92.
    Tlie ease of City of Keokuk v. Independent Dist. of Keokuk, 53 Iowa, 352, is almost identical with the case at bar. City of Loioett v. Olidden, 159 Mass., 317; Dillon Mun. Corps., section 1012; Tiedeman on Mun. Corps., sections 346 and 348.
    
      Ldwin A. Latty, for defendant in error.
    As part of our argument we desire to call attention to the opinion rendered by Judge Day of the circuit court of Defiance county, Ohio, in the hearing of this case below, and reported in 12 Ohio C. C., 347.
    1. The familiar rule is, that one who negligently creates or maintains an obstruction or nuisance in a public street, is, irrespective of authority or license, liable to persons injured thereby. Clark v. Fry, 8 Ohio St., 359; Railroad Co. v. Morey, 47 Ohio St., 207; liatón v. Whalen et al., 49 Ohio St., 69; Sexten v. Zett, 44 N. Y., 430; Bliss v. Sehub, 48 N. Y., 339; Steiverman v. White, 48 Super, 523; Dixon v. Brooklyn City R. R. Co., 100 N. Y., 170; Mairs v. Manhattan Real Estate Association, 89 N. Y., 498; Robbins v. Chicago, 4 Wall., 657; Mulcairnsv. Janesville, 34 Alb. L. J., 456; Indianapolis v. Emmelman, 35 Alb. L. J., 137.
    2. In case the defect was caused by a licensee, the right of recovery, depends on his contract express or implied to perform the act permitted in such a manner as to protect the public from danger and the municipality from liability. Port Jervis v. First Nat. Bank, 96 N. Y., 550; Brooklyn v. City R. R. Co., 47 N. Y., 475; Congreve v. Morgan, 18 N. Y., 84; Troy v. Troy & L. R. R. Co., 49 N. Y., 657.
    In the first two cases the liability was implied, in the latter two expressed in the contract.
    
      3. Where a municipal corporation has been compelled to pay a judgment rendered against it, for damages sustained by reason of the wrongful acts of a third person, rendering a street unsafe, it has a remedy over, against such person. Milford v. Eoolbrook, 9 Allen, 17; Lowell v. Short, 4 Cush., 275; Boston v. Worthington, 10 Gray, 496; Lowell v. Boston & Lowell R. R. Co., 23 Pickering, 24; WoodsY. Breton, 111 Mass., 357; Westfield v. Mayo, 122 Mass., 100; Rochester v. Montgomery, 72 N. Y., 67; Mayor, etc., of N. Y., v. Bimick, 20 Abbot, N. Cas., 15; Seneca Falls v. Zalinski, 8 Hun., 571; Portland v. Richardson, 54 Maine, 46; Catterlinv. Frankfort, 79 Ind., 547; Morgan v. Muldoon, 82 Ind., 347; Beever v. North, 107 Ind., 544; Robbins v. Chicago, 4 Wall., 657; Western da etc., R. R. v. Atlanta, 74 Ga., 774; Aberdeen v. Blackman, 6 Hill, 324; Elliott on Roads and Streets, 657; Elkhart v. Weckemvire, 87 Ind., 77; McNaughton v. Elkhart, 85 Ind., 384; Brookville v. Arthurs, 130 Ind., 501; Portland v. Atlantic R. R. Co., 66 Me., 485; Brooklyn v. Brooklyn City R. R. Co., 8 Abb., Pr. N. S., 356; City of N. Y v. Brady, (Sup.) 30 N. Y., S., 81, Hun., 440; City of Reading v. Reener, 167 Pa. St., 41; City of Wabash v. Southioorth, 55 N. W. Rep., 818; Trustees of Village of Canandaigua v.' Foster, late case (30 N. Y. S., 686), 81 Hun., 147.
    4. When a remedy exists, the corporation may notify such wrongdoer of the pendency of the action, against it, and request him to come in and defend, he will then be concluded by any judgment as to the existence of the defect, the liability of the city and amount of damages. Boston v. Worthington, 10 Gray, 496; Portland v. Richardson, 54 Me., 46; Mayor, etc., N. Y. v. Troy, etc., R. R., 49 N.Y., 657; Bobbins v. Chicago, 4 Wall., 657; Binsee v. Wood, 37 N. Y., 530.
    5. If after notice and request, to defend, the wrongdoer, fails to make any defense in the action against the city, and the city defends it for him, it may, if guilty of no misfeasance itself, recover from such wrongdoer, not only the amount of the judgment recovered against it, but also all reasonable and necessary expenses incurred in defending the action including reasonable attorneys’ fees. Veaziev. PenobscotB. B. Co., 49Me., 19; Chesapeake Canal Co. v. Alleghany Co., 57 Md., 201; Baxendale v. London, etc., B. B. Co., 10 L. R. Ex., 35; Aslin v. Peor kin, 2 Burr., 665; Marlott v. Clary, 20 Ark., 251; French v. Parish, 14 N. H., 496; Levetsky v. Canning, 33 Cal., 299.
    As to the proposition claimed by the plaintiff in error that this action will not lie, because of the rule that no contribution exists between wrongdoers, it is of course true that it contains in general a true enunciation of a principle of law. But the real question at issue in this case is quite different from the abstract statement of the general principle, and the rule is always confined to cases where the party seeking redress knew, or must be presumed to have known, the act was unlawful; and does not apply to cases where the party seeking contribution was a tort-feasor only by an inference of law. Adamson v. Jervis, 4 Bing., 72; Wooley v. Batte, 2 Car. & P., 417; Pearson v. Skelton, 1 M. & W., 504; Jacobs v. Pollard, 10 Cushing, 287; Bailey v. Bushing, 28 Conn., 455; Moore v. Appleton, 26 Ala., 633; Goldsburough v. Darst, 9 Brad. (111.), 205; Sherner v. Spear, 92 N. C., 148; LLorbachv. Elder, 66 Pa. St., 33; Armstrong Co. v. Clarion Co., 66 Pa. St., 218; Acheson v. Miller, 2 Ohio St., 203; Grund v. Van Fleck, 69 111., 479; Ives v. Jones, 3 Ired. L., 538.
    And in the following- similar cases, where recovery over was sought, the rule of no contribution between tort-feasors,was expréssly held not to apply. Campbell v. Somerville, 114 Mass., 334; Gridley y. City of Bloomington, 68 111., 47; Minneapolis Mill Co. v. Wheeler, 31 Minn., 121; Churohhill v. Holt, 127 Mass., 165; IIorbachY. Elder, 18Pa. St., 33; Wooley v. Batte, 2 Car. & P., 417; Gray v. Boston Gas Light Co., 114 Mass., 149; Inhabitants of West Boylston v. Mason, 102 Mass., 341.
   Shauck, J.

In Morris v. Woodburn, 57 Ohio St. 330, we held that if the owner of a lot abutting upon a street of a municipality, for the use of his property, constructs a vault under the sidewalk over which he negligently places and maintains a defective covering, he is liable directly to a footman injured thereby, notwithstanding the omission by the municipality of the duty imposed upon it by statute to keep the street in repair. And since the decisions in Chicago v. Robbins, 2 Black, 418 and 4 Wall., 657, it seems to be the settled law that if a municipal corporation is held in damages for its failure to keep a sidewalk in repair by removing the source of danger so created by an abutting owner for his own personal ends, it may, having given him notice of the pendency of the suit against it, recover from him the amount which it is adjudged to pay because of his tort.

But it is not assumed that the grounds upon which recoveries were sustained in those cases are available here. The opinion of the circuit court in the present case (12 C. C. R.-, 346) shows that it was mindful of the fact that the statute imposed upon the municipality, and not upon the abutting owner, the duty of keeping the streets and sidewalks in repair and free from nuisance. It is conceded that the law imposes upon such owner no duty with respect to the walk whose mere omission could be asserted as the foundation of an action against him. According- to the view there taken, Wilhelm, having assumed the duty of constructing and maintaining the walk, thereby became bound to exercise due care in the selection of materials and reasonable skill in constructing and repairing the walk, and by his failure in respect thereto he actively created the dangerous place and negligently left it unguarded, whereby he became directly liable to the person injured or to the city in the present action it having been compelled to respond first because of its failure to perform the duty imposed upon it by the statute. No authority is cited by the circuit court in support of this view, and most of the cases cited by the city solicitor in support of the judgment relate to the points decided in Morris v. Woodburn, and Chicago v. Robbins.

The right of the municipality to recover from the wrongdoer was upheld in Chicago v. Robbins, and in the cases following it, upon the ground that the recourse of the person injured is primarily against him; and the municipality, having relieved him of that liability, is subrogated to the rights of the person injured. In the City of Rochester v. Campbell, 123 N. Y., 405, is was correctly said of those cases: ‘These were all cases where the dangerous conditions of the streets were created by the defendants, and they were held liable for the consequences of their unlawful acts, under their common law obligations as the creators of nuisances, and not by reason of any duty enjoined upon them by statute or otherwise. ’ Section 2640, Revised Statutes, provides: “The council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds, and bridges within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance. ’ ’

This, as has been repeatedly held, is not merely a grant of power to the municipality, but the imposition of a duty upon it. Cognate provisions of the statute authorize the municipality to require, in the mode specified, the abutting owner to construct or repair the walk in front of his premises. The effect of his failure to comply with the requirement is also defined by the statute; that upon his failure the municipality may construct or repair the walk and assess the cost thereof upon his property. But the right of the city to be indemnified in this manner is expressly limited to one-fourth of the amount at which the property is valued for the purposes of taxation. The consequence thus indicated by the statute is exclusive. In considering the effect of similar statutory provisions in The City of Keokuk v. the Independent District of Keokuk, 53 Iowa, 352, it was said: “The city has sole authority over its streets, is charged with their improvement and repair, and vested with the power to tax for that purpose. Where the lot owner is required by the city to construct or repair a sidewalk it is simply a method of exercising such power of taxation by which he is made the agent of the city to expend the amount of the tax, and the responsibility for the performance of the work remains where the authority to control it is found. ’ ’

In well considered cases it has been held that the liability which the statute imposes upon the abutting owner is exclusive and not reconcilable with an unlimited liability for injuries occasioned by the defective condition of streets and sidewalks which are constructed and maintained under the authority of the municipality, where that condition results from negligence merely. Flynn v. The Canton Company of Baltimore, 40 Md., 312; City of Hartford v. Talcott, 48 Conn., 525; City of St. Louis v. The Conn. Mut. Life Lns. Co., 107 Mo., 92. That conclusion is in harmony with the view of the subject taken in Rochester v. Campbell, where it is said that to hold the abutting property liable in an action for indemnity “would tend to relax the vigilance of municipal corporations in the performance of their duties with respect to the repair of streets -and highways, and impose that duty upon those who might be utterly .unable to discharge it..”

The policy of the statute, as indicated by its provisions according to the doctrine of the cases cited and the numerous cases which they review, seems to require the conclusion that when a municipality accepts a sidewalk constructed by the owner of abutting property pursuant to its notice, as a compliance therewith, all liability for mere negligence in construction and maintenance must rest and remain upon it.

Judgment of the circuit court reversed and that of the common pleas affirmed.  