
    No. 314
    PORTSMOUTH (City) v. MITCHELL MFG. COMPANY
    No. 18895.
    Supreme Court
    On motion to direct Scioto Appeals to certify record. Dock.
    Jan. 5, 1925.
    3 Abs. 18.
    1091. SEWERS—Is municipality charged with duty of keeping the sewers of its city clean and free from debris?
    829. NEGLIGENCE—Would said duty be a governmental or ministerial function?
   The Mitchell Mfg. Co. brought an action in the Scioto Common Pleas against the City of Portsmouth. The Company claimed that due to the negligence of the city in not keeping the sewers clean and free from dirt, water backed into its cellar, damaged goods stored therein. The city averred that no duty is imposed upon it by statute to so care for the sewers. The city alleged that the Company was negligent in storing in its cellar goods without taking means of protecting them; and the damage was due to an unprecedented rainstorm which was an “Act of God”. The Common Pleas rendered judgment in favor of the Mitchell Mfg. Company.

Attorneys—Sherrard M. Johnson, for City; Bannon & Bannon, for Mfg. Co.; all of Portsmouth.

Error was prosecuted and the Court of Appeals in its opinion took the view that though the construction of the sewers was a governmental function, the maintenance thereof was purely ministerial. Judgment of the lower court was affirmed.

The City contends that both the construction of sewers and the maintenance thereof are governmental functions. The rainfall was unprecedented and heavy so that the streets could not be swept, in order to prevent the washing of the dirt into the sewers.  