
    Hack, Appellant, v. City of Salem, Appellee.
    (No. 37448
    Decided April 17, 1963.)
    
      
      Messrs. Stephens, Stephens & Wilkes, for appellant.
    
      Mr. Comus M. Beard, for appellee.
   Guernsey, J.

Plaintiff’s action being founded solely on common-law negligence, we are not concerned with any liability of defendant on the theory of nuisance. Moreover, as no issue was raised in the Common Pleas Court, in the Court of Appeals or in this court as to the sufficiency of plaintiff’s allegations of negligence, the only issue to be determined is whether the petition fails to state a cause of action by alleging a function of the defendant municipality in the exercise of which it was immune from liability for its common-law negligence.

In the absence of adoption by the General Assembly of legislation abolishing the rule, this court remains committed to, and is not yet ready to abandon, the rule that, except as otherwise provided by statute, municipal corporations are exempt from liability for negligence in the performance or nonperformance of their governmental functions as distinguished from those which are proprietary. See Broughton v. City of Cleveland, 167 Ohio St., 29, 31.

It is apparent that, in rendering their respective judgments herein, both the Common Pleas Court and the Court of Appeals relied entirely on the authority of Seldon v. City of Cuyahoga Falls, 132 Ohio St., 223, wherein the following appears in the syllabus:

“1. In the construction and maintenance of a park and swimming pool for the use and benefit of the general public, a municipality acts in a governmental rather than a proprietary capacity.
“2. While acting in such governmental capacity a municipality incurs no liability in tort for common-law negligence.”

However, Chief Justice Weygandt stated in his opinion, at page 224:

“To simplify and shorten this discussion, it should be noted that the defendant municipality here acted in a governmental rather than a proprietary capacity in the construction and maintenance of its park with a sioimming pool for the use and benefit of the general public. City of Mingo Junction v. Sheline, Admx., 130 Ohio St., 34, 196 N. E., 897, 57 A. L. R., 402. This seems to be conceded by the plaintiff.” (Emphasis added.)

Indeed, in the same case, the Court of Appeals for Summit County had not deemed there was any issue of governmental or proprietary capacity to be considered or determined by it, for it said (Cuyahoga Falls v. Selden, 23 Ohio Law Abs., 181, 184):

“It is important that we keep in mind that this is not a case involving a question of negligence in the keeping of a public place open or in repair, and it is not a case involving the acts of a city which are performed in its proprietary capacity; that on the contrary this case presents solely and only a question relative to the liability of a city while acting in its governmental capacity.” (Emphasis added.)

It was held by this court in Williamson Heater Co. v. Radich, 128 Ohio St., 124, as stated by Chief Justice Weygandt in his opinion, at page 126:

“It is of course true that the syllabus of a decision of the Supreme Court of Ohio states the law of Ohio. However, that pronouncement must be interpreted with reference to the facts upon which it is predicated and the questions presented to and considered by the court. It cannot be construed as being any broader than those facts warrant. When obiter creeps into a syllabus it must be so recognized and so considered.” (Emphasis added.)

It appearing that, in the Selden case, the plaintiff had conceded that the municipality was exercising a governmental function, and that the issue of governmental versus proprietary functions was not presented to and considered by the Supreme Court, we are of the opinion that all that part of the first and second paragraphs of the syllabus of the Selden case, purporting to hold that in the construction and maintenance of a swimming pool for the use and benefit of the general public a municipality acts in a governmental rather than a proprietary capacity and incurs no liability in tort for common-law negligence, is obiter and thus established no judicial precedent.

In the recent case of Gibbon, Admr., v. Young Women’s Christian Assn, of Hamilton, Ohio, 170 Ohio St., 280, which was an action for wrongful death by drowning allegedly caused by the negligence of defendant’s employee, this court followed the earlier case of Waddell, a Minor, v. Young Women’s Christian Assn., 133 Ohio St., 601, involving similar facts, and held that, except in certain limited situations, a charitable or eleemosynary institution, other than one which has as its purpose the maintenance and operation of a hospital, is, as a matter of public policy, not liable for tortious injury. Although thus recognizing in the Gibbon case the application of public policy to the determination of liability of a charitable or eleemosynary institution under rules previously established in Avellone v. St. John’s Hospital, 165 Ohio St., 467, this court nevertheless found in the Gibbon case that considerations of public policy also required that the established doctrine of immunity from liability should continue to be applied to the factual situation presented therein.

Although cases pertaining to tort liability of charitable or eleemosynary institutions may thus present interesting parallels to the tort liability of municipal corporations, the immunity of each is based on different legal concepts, and we do not deem the decisions as to the former controlling with respect to decisions pertaining to the latter. The present concept of immunity of charitable and eleemosynary institutions from tort liability is as expressed by Acting Chief Justice Matthias in his opinion, at page 473, in the Avellone case:

“Although it is apparent that this court has used language indicative of each of the four named theories of immunity, it is also apparent that, in the final analysis, the partial immunity of nonprofit hospitals obtaining in Ohio at the present time, they being [before the Avellone decision] immune from liability only as to patients, i. e., ‘beneficiaries of tbe charity’ who cannot prove negligent selection of servants, is based solely upon tbe general ground of public policy.”

On tbe other band, tbe immunity of municipal corporations from liability for their torts has not, by Ohio decisions, been attributed to considerations of public policy but is founded instead on tbe supremacy of tbe sovereign. As stated by Chief Justice Marshall in City of Wooster v. Arbenz, 116 Ohio St., 281, 283:

“This court is for tbe present committed to tbe doctrine that there is no liability on the part of a municipality in actions for tort, if tbe function exercised by tbe municipality at tbe time of tbe injury to tbe plaintiff was a governmental function. Tbe nonliability for governmental functions is placed upon tbe ground that tbe state is sovereign, that tbe sovereign cannot be sued without its consent, and that tbe municipality is tbe mere agent of tbe state and therefore cannot be sued unless tbe state gives its consent by legislation. * * *
“Tbe court is equally committed to tbe doctrine that if tbe function being exercised is proprietary and in pursuit of private and corporate duties, for tbe particular benefit of tbe corporation and its inhabitants, as distinguished from those things in which tbe whole state has an interest, tbe city is liable. ”

We are not, therefore, now concerned with considerations of public policy but, on tbe contrary, are concerned with judicial interpretation of established rules of law. We are required by tbe doctrine of stare decisis to follow those rules of law providing for tbe immunity from liability of a municipality while in tbe exercise of a governmental function and for tbe nonimmunity thereof while in tbe exercise of a proprietary function, but, as there is no controlling judicial precedent in Ohio establishing which of these functions is exercised by a municipality in its ownership and operation of a public swimming pool, such determination is left to our judicial interpretation without tbe limitations of stare decisis.

We are not assisted in this determination by tbe decisions of other jurisdictions, which, if not unalterably opposed in their conclusions, are distinguishable from each other on many and diverse grounds. On tbe one extreme, are tbe decisions bolding the operation of a swimming pool to be a governmental function notwithstanding that the pool is operated at an actual profit. On the other extreme, are the decisions holding the operation to be a proprietary function notwithstanding that the pool is operated without charge. Other variations depend on the operation being in conjunction with or independent of other recreational or health facilities and upon whether the swimming facility is a natural pond, an ocean beach or an artificial structure. See annotation, 55 A. L. R. (2d), 1434. In 18 Mc-Quillin on Municipal Corporations (3 Ed.), 457, Section 53.113, the author concludes that, “in view of the tendency of late decisions and the development of the law on this subject, the rule will ultimately prevail that in maintaining parks, playgrounds, bathing pools and beaches, and like recreations, the city is performing a local function for its people and it should be held liable on the same basis as a private person or corporation.”

At this point, it would be well to observe also that, although we have already distinguished the Selden case, supra, with respect to the issues of law presented to and considered by the court, it is likewise distinguishable from this case on its facts. Reference to the opinion of the Court of Appeals (23 Ohio Law Abs., 181) shows that the city had “dammed up a small ravine in its public park” and “said pond was created for the purpose of providing a free bathing place.”

Ohio is not, however, without precedent as to the tests to be applied to determine, in any situation, whether a municipal function is governmental or proprietary. For this purpose, this court has often resorted to those tests set forth, as follows, by Chief Justice Marshall in City of Wooster v. Arbens, supra, at page 284:

“In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself. If, on the other hand, there is no obligation on the part of the municipality to perform them, but it does in fact do so for the comfort and convenience of its citizens, for which the city is directly compensated by levying assessments upon property, or where it is indirectly benefited by growth and prosperity of the city and its inhabitants, and the city has an election whether to do or omit to do those acts, the function is private and proprietary.
“Another familiar test is whether the act is for the common good of all of the people of the state, or whether it relates to special corporate benefit or profit. In the former class may be mentioned the police, fire, and health departments, and in the latter class utilities to supply water, light, and public markets.

In applying these tests we are also here governed by the fact that this appeal is from a judgment dismissing the action following the sustaining of a demurrer. We, therefore, must liberally construe the petition favorably to the plaintiff, and, for the purpose of testing its legal sufficiency, must indulge in every reasonable inference from the facts alleged therein to sustain same. Humphries v. Wheeling Steel Corp., 132 Ohio St., 263; Gugle v. Loeser, 143 Ohio St., 362; and Glass v. McCullough Transfer Co., 159 Ohio St., 505.

Examination of the general laws of Ohio reveals that the Legislature has not imposed upon municipal corporations any mandatory duty to operate public swimming pools, but substantial legislative authority has existed for many years permitting them to do so. Section 717.01 and Section 755.12 et seq., Be-vised Code.

Nor can we say that the operation of a swimming pool is, as stated in Wooster v. Arbenz, supra, in the performance of “those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property.” Some claim might be made that swimming pools have a relationship to health, but such relationship, if any, is incidental and not universal. They do not preserve health in the sense of abating conditions which endanger health or in providing cures for illness and disease. In fact, in the operation of all swimming pools there is a constant battle to keep them sanitary so that they will not, in themselves, become a source of contagion and disease. Municipal swimming pools do, however, have a direct relationship to the “comfort and convenience of its citizens.”

The allegations of the petition are sufficiently narrow as to require us to consider the operation of this swimming pool as being independent of other municipal functions and will not permit us to conclude that the pool was operated in connection with or as a mere incident to the exercise of some municipal function recognized as governmental in nature. The allegation, “known as Centennial Park Pool,” is merely a matter of appellation and identification and bears neither on the nature of the operation nor upon its location.

We do not consider the charge of an admission fee as being necessary to proprietary function, for, under the foregoing tests, if a city should benefit by the growth and prosperity of itself and its inhabitants, no direct financial benefit is necessary. However, we do consider such admission fee as pertinent in determining whether the pool is operated by the municipality for the common good of all the people of the state or “primarily for the benefit and accommodation, of those of its citizens who might be interested.”

In Ever sole v. City of Columbus, 169 Ohio St., 205, in the third paragraph of the syllabus, this court held:

“A municipality in voluntarily establishing and maintaining an arts and crafts center as a part of its recreation program and primarily for the benefit and accommodation of those of its citizens who might be interested is engaged in a proprietary venture and is answerable for its negligence.” (Emphasis added.)

By its inherent nature and by limitations of size and location, a municipal swimming pool is ordinarily accessible to and used by only such of those persons living in, or in the immediate vicinity of, the municipality and who are interested in swimming. An admission fee further excludes from the beneficiaries of such activity all those members of the public who either do not possess, or who are unwilling to pay, the money for such admission fee.

We conclude that, indulging favorably to the plaintiff every reasonable inference from the facts alleged, it appears from the petition that defendant city voluntarily owned and operated a swimming pool primarily for the benefit and accommodation of those of its citizens who might be interested, and that such ownership and operation constituted the exercise of a proprietary function for which the city is answerable for its negligence.

It follows that, with reference to the allegation of this function, the demurrer should have been overruled. The judgment of the Court of Appeals is, therefore, reversed, and the cause is remanded to the Court of Common Pleas for further proceedings.

Judgment reversed.

Taft, C. J., Zimmerman and Herbert, JJ., concur.

Matthias, 0 ’Neill and Gibson, J J., concur in the judgment.

Guernsey, J., of the Third Appellate District, sitting by designation in the place and stead of Griffith, J.

Gibson, J.,

concurring in the judgment. As no issue was raised in the Court of Common Pleas, in the Court of Appeals, or in this court as to the sufficiency of the plaintiff’s allegations of negligence on the part of the defendant, the only issue to be determined is whether the petition fails to state a cause of action because a municipal corporation is immune from liability for its common-law negligence in such a case. Ohio, as most states, regards a municipal corporation as having a rather curious dual character, being at one and the same time a corporate entity and a subdivision of the state. Consequently, attempted distinctions between “governmental” and “proprietary” functions of municipalities are made in determining their liability for negligence. While the rule that a municipalty is liable when acting in its proprietary capacity but- is immune from liability when acting in its governmental capacity may be stated simply enough, the applicaton of the “simple rule” has caused much difficulty, and in fact the law in this area is a tangle of disagreement and confusion. Thus, the basic question is whether the purported distinction should be continued.

In the early reported American cases it apparently was assumed, without argument and as a matter of basic justice, that municipal corporations were subject to actions for torts. Although the English case of Russell v. Men of Devon (1798), 2 Term Rep., 667, 100 Eng. Rep., 359, extended the immunity of the state to a municipality (county), there was no good authority for a distinction between “public” and “private” corporations for use of the early American courts. Barnett writing on “The Foundations of the Distinction Between Public and Private Functions in Respect to the Common-Law Tort Liability of Municipal Corporations” in 16 Oregon Law Review (1937), 250, indicated that the earliest reported American case recognizing the tort liability of a municipal corporation was Hooe v. Alexandria, 1 Cr. C. C., 90, 12 Fed. Cas. No. 6666 (U. S. C. C., 1802). In that case no distinction was made between the tort liability of public and private corporations, and the municipality was held liable simply as a “corporation.”

The early cases in Ohio apparently took the same approach as to tort liability of municipal corporations. In Goodloe v. City of Cincinnati (1831), 4 Ohio, 500, involving the city’s negligent repair of an old street which caused damage to the abutting property, this court said:

“When the corporation of a town grade the streets, the object is the benefit of the whole town. If an individual is injured, it is right he should have redress, against all upon whose account the injury was perpetrated. There is no justice in sending him to seek redress from an irresponsible agent. There is no propriety in compelling the injured party to look for compensation to the mere agent, who acted in good faith, according to the directions of his employers. * * *”

Also see Smith v. City of Cincinnati (1831), 4 Ohio, 514. Later in Rhodes v. City of Cleveland (1840), 10 Ohio, 160, it was held expressly that municipal corporations, like individuals, are liable for injuries done although the tortious acts were not beyond their lawful powers. Lane, C. J., in the Rhodes case said, among other things, that ‘ ‘ since so much of the business of the world is transacted through their [corporate] agency, it becomes necessary that courts should meet their expanding powers by an extension of the limits of their liability.” See, also, McCombs v. Town Council of Akron (1846), 15 Ohio, 475, where this court held that a municipal corporation, like an individual, is liable for injuries resulting to plaintiff’s property from the acts of employees of the municipality.

In 1842 the historic case of Bailey v. City of New York, 3 Hill, 531, 38 Am. Dec., 669, bifurcated municipal corporations for the purpose of imposing tort liability by distinguishing between “public” and “private” or, as more commonly stated today, governmental and proprietary functions. It seems entirely likely that the New York decision is the result of the court’s failure to understand the reasoning of Chief Justice Marshall in Bank of United States v. Planters Bank of Georgia (1824), 9 Wheat., 904, 6 L. Ed., 244, in holding the state liable as any other stockholder of a bank, together with a misunderstanding of the distinction drawn in the Dartmouth College case (Trustees of Dartmouth College v. Woodward [1819], 4 Wheat., 518, 4 L. Ed., 629) between public and private corporations for purposes of legislative control. See 16 Oregon Law Review, supra, 267.

Twelve years later this court in City of Dayton v. Pease (1854), 4 Ohio St., 80, after discussing Bailey v. City of New York and other New York cases, began to draw a distinction between governmental and proprietary functions as far as tort liability of a municipality is concerned. From that date until 1919, it would appear that the courts of this state attempted, albeit unsuccessfully on occasion, to distinguish between public and private functions of municipal corporations in determining their liability for negligence.

In 1919 six judges of this court in Fowler, Admx., v. City of Cleveland, 100 Ohio St., 158, after noting the growing dissatisfaction with the rule which exempts a municipality from liability for all acts “which have loosely been classed as governmental” and the revolutionary changes in the functions of modern cities, concluded that the application of the ordinary rules for determining liability of other defendants in similar cases sufficiently safeguarded the public corporation. The syllabus expressing the majority opinion reads as follows:

“1. Section 16, Article I of the Constitution, guarantees to every person for injury done him in his lands, goods, person or reputation remedy by due course of law.
“2. It is not the policy of government that the state or any of its subdivisions shall, in the absence of special provision, indemnify persons for loss or damage either from lack of proper laws or administrative provisions; nor from inadequate enforcement of laws or the inefficient operation of such provisions.
‘ ‘ 3. But where a wrongful act which has caused injury was done by the servants or agents of a municipality in the performance of a purely ministerial act which was the proximate cause of the injury without fault on the part of the injured person respondeat superior applies and the municipality is liable.
“4. Frederick, Admx., v. City of Columbus, 58 Ohio St., 538, overruled.”

The return of Ohio law to the condition prior to Bailey v. New York did not last long. In 1922, after a change in the membership of the court, Jones, J., who had dissented in the Fowler case, led all but one of his associates safely back into the morass of conflict and confusion surrounding the attempted distinction between governmental and proprietary functions of municipalities in Aldrich v. City of Youngstown, 106 Ohio St., 342.

Proof that the classification of particular functions of municipalities has been difficult and frequently leads to absurd and unjust consequences could fill many pages. In the interest of time and space, we refer those who would see the “bramble bush” created by this classification system, which is both faulty and unsuited to modern city life, to Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Test, 22 Virginia Law Review (1936), 910.

Within the past four years, Zimmerman, J., speaking for this court in Eversole v. City of Columbus (1959), 169 Ohio St., 205, confessed that “it is impossible to reconcile all the decisions of this court dealing with the subject of governmental and proprietary functions in relation to a municipality. For example, why should the management of public grounds and buildings (State, ex rel. White, v. City of Cleveland, 125 Ohio St., 230, 181 N. E., 24, 86 A. L. R., 1172) be classed as a proprietary function, whereas the construction and maintenance of a park and swimming pool (Selden v. City of Cuyahoga Falls, 132 Ohio St., 223, 6 N. E. [2d], 976) were conceded to be governmental functions? And why should the construction of sewers (Hutchinson v. City of Lakewood, 125 Ohio St., 100, 180 N. E., 643, and State, ex rel. Gordon, City Atty., v. Taylor, 149 Ohio St., 427, 435, 79 N. E. [2d], 127) be considered as a governmental function, whereas the maintenance and repair of sewers, after construction (City of Portsmouth v Mitchell Mfg. Co., 113 Ohio St., 250, 148 N. E., 846, 43 A. L. K., 961, City of Salem v. Harding, 121 Ohio St., 412, 169 N. E., 457, and Doud v. City of Cincinnati, 152 Ohio St., 132, 87 N. E. [2d], 243) is regarded as a proprietary function?”

The difficulty this court has had in applying this faulty classification system is further demonstrated by considering the fact that in 1918 it was believed that collecting garbage was a proprietary function (City of Cleveland v. Russo, Admr., 98 Ohio St., 465, affirming, without written opinion, Russo, Admr., v. City o/ Cleveland [1917], 28 C. O. [N. S.], 25), but in 1957 it was believed to be governmental (Broughton v. City of Cleveland, 167 Ohio St., 29). In 1869 (Wheeler v. City of Cincinnati, 19 Ohio St., 19) and in 1898 (Frederick, Admx., v. City of Columbus, 58 Ohio St., 538) it was believed that the operation of a fire department was governmental, but in 1919 (Fowler, Admx., v. City of Cleveland, supra) it was thought not. In 1922 (Aldrich v. City of Youngstown, 106 Ohio St., 342), this court again changed its mind and concluded that the operation of a police department, being no different in principle from the operation of a fire department, was governmental, and overruled the Fowler case

This court, in conformity with the courts of many states, has further confused the problem by holding that a municipal corporation is liable if it can be found to have created or maintained a nuisance, even though it be in the course of an otherwise governmental function. Gaines v. Village of Wyoming (1947), 147 Ohio St., 491.

To the extent that the immunity granted a municipality when it exercises its governmental function is an extension of the doctrine “The King can do no wrong,” such immunity is clearly wrong. Mr. Justice Miller in Langford v. United States (1879), 101 U. S., 341, 343, 25 L. Ed., 1010, said respecting this doctrine: “We do not understand that either in reference to the government of the United States, or of the several states, or of any of their officers, the English maxim has an existence in this country.” See, also, Welch v. Tennessee Valley Authority (C. C. A. 6, 1939), 108 F. (2d), 95.

It has been suggested that any change in the immunity of municipalities from liability for negligence in the performance or nonperformance of their governmental functions must be made by the General Assembly because the immunity is fixed by the doctrine of stare decisis. Admittedly the General Assembly has the authority to change or abolish the rule of immunity created by this court for municipal corporations in regard to their so-called governmental functions, but that in no way precludes this court from changing its own rule. This court was not afraid to reject the doctrine of stare decisis in Avellone v. St. John’s Hospital (1956), 165 Ohio St., 467, when, upon looking at the facts as they exist in the 20th century, it held that notwithstanding stare decisis a corporation not for profit, which has as its purpose the maintenance and operation of a hospital, is, under the doctrine of respondeat superior, liable for the torts of its servants. See, also, Muskopf v. Corning Hospital District (1961), 55 Cal. (2d), 211, 359 P. (2d), 457, where the argument that any change in the rule of governmental immunity was the exclusive province of the legislature was rejected.

The suggestion that the immunity of municipal corporations from liability for negligence in the performance or nonperformance of their governmental functions must be changed, if at all, by the General Assembly ignores completely the fact that negligence as a separate basis of tort liability has been developed by the courts out of the common-law action on the case since about 1825. Prosser, Law of Torts (2d), 117. Thus, in the instant case of alleged negligence on the part of the city of Salem, the courts have developed not only the basic theory of liability but also the rule calling for a classification of ministerial functions of municipal corporations. In no other area of the law has legislation played such a small part. The immunity provided to municipalities for injuries arising out of governmental functions, as we have seen, is entirely the handiwork of the courts. Green, Freedom of Litigation: Municipal Liability for Torts, 3'8 Illinois Law Beview (1944), 355. The courts having created the theory of liability and the confusing classifications of municipal functions should be willing to abolish the distinctions which so completely ignore the fundamental issue involved as to which party is better able to bear the cost.

To raise the question of whether the municipality or the injured individual is better able to bear the cost is to answer it. The municipality, which is able to spread the burden of the cost of an injury among its taxpaying residents, is in a much better position, in the vast majority of cases, than the injured individual, who must bear such loss from his own resources. Although the municipality, as an entity, may not profit from its activity, yet (it is devoutly to be hoped) the taxpaying public does, and in Ohio cities it is frequently a taxpaying public of many thousands which would bear the costs of losses occasioned by negligence in the performance or nonperformance of municipal activities.

There is no good reason why a municipal corporation should not be held liable for its negligent torts on the same basis as a private corporation. The municipal corporation is no more a legal concept than a private corporation. Both arise by operation of law, both necessarily act through agents, and both necessarily are going to have agents who at times are negligent in the performance of their duties. The ordinary rules of liability applicable to private corporations should give municipalities all the protection they require against unreasonable claims. The defenses available, e. g., contributory negligence and voluntary assumption of risk, are extensive and they are ably pleaded and consistently upheld by the courts. Moreover, under the doctrine of respondeat superior the liability of municipal corporations would be as limited as that of a private corporation by the requirement that the municipal employees act within the scope of their employment.

Within the past six years the supreme courts of four major states have assumed their responsibility by abolishing the doctrine of governmental immunity. In 1957, the Supreme Court of Florida in Hargrove v. Town of Cocoa Beach, 96 So. (2d), 130, 60 A. L. R. (2d), 1193, held that, although liability may not be imposed on a municipal corporation for actions taken in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions, when an individual suffers injury proximately caused by the negligence of a municipal employee acting within the scope of his employment, such individual may maintain an action against the municipality for redress of the wrong done. In 1959, the Supreme Court of Illinois in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. (2d), 11, 163 N. E. (2d), 89, on its own authority, overthrew the doctrine of governmental immunity as it related to the negligence of a school district in its operation of a public school bus. In 1961, the Supreme Court of Michigan in Williams v. City of Detroit, 364 Mich., 231, 111 N. W. (2d), 1, by an equally divided court, held that a city was immune from liability for the death of a moving and storage company employee, who was killed in a fall down the elevator shaft in a city-owned building, used solely for governmental purposes, but overruled the doctrine of immunity for municipal corporations for future cases by a majority of the court. In the same year, the Supreme Court of California in Muskopf v. Corning Hospital District, supra, rejected the doctrine of governmental immunity from tort liability as an anachronism, without rational basis, and as having existed only by the force of inertia.

After consideration of the many factors involved, I conclude that liability may not be imposed upon a municipal corporation for actions taken or not taken in the exercise of discretion in legislative or judicial, or quasi-legislative or quasi-judicial, functions; nor for lack of proper laws or administrative provisions; nor for inadequate enforcement of laws or the inefficient operation of such provisions. But, when a person, through no fault of his own, suffers injury proximately caused by the negligence of a municipal corporation in the performance or nonperformance of its ministerial functions, regardless of whether such functions were heretofore classified as governmental or proprietary, such person may maintain an action against the municipality for redress of the wrong done.

I agree with the majority of this court that the demurrer to plaintiff’s petition should have been overruled but, in my opinion, the syllabus of this court should be:

1. A municipal corporation, under the doctrine of respondeat superior, is liable, unless immune by statute, for its negligence in the performance or nonperformance of ministerial functions, regardless of whether such functions were heretofore classed as governmental or proprietary.

2. A petition in an action for damages for bodily injuries alleged to have been proximately caused by the negligence of a municipal corporation in maintaining and operating a public swimming pool is not demurrable on the ground that the municipality is immune from liability for torts committed in the performance or nonperformance of its ministerial functions.

Matthias and O’Neill, JJ., concur in the foregoing concurring opinion. 
      
       There is a tremendous body of literature protesting governmental immunity for tortious conduct and advocating the protection of its victims. See, e. g., Harno, Tort Immunity of Municipal Corporations (1921), 4 Illinois Law Quarterly, 28; Borchard, Government Liability in Tort (1924), 34 Yale Law Journal, 1, 129, 229; Governmental Responsibility in Tort (1926), 36 Yale Law Journal, 1, 757, 1039; Governmental Responsibility in Tort (1928), 28 Columbia Law Review, 577; Theories of Governmental Responsibility as a Factor in the Decision of Certain Types of Tort Cases (1928), 28 Columbia Law Review, 734; Feezer, Capacity to Bear Loss, etc. (Municipal Corporations) (1930), 78 Pennsylvania Law Review, 805, 815; Tooke, The Extension of Municipal Liability in Tort (1932), 19 Virginia Law Review, 97; David, Municipal Liability in Tort in Calif orna (1933), 7 Southern Calfornia Law Review, 48, 214, 295, 372; State and Municipal Liability in Tort (1934), 20 American Bar Association Journal, 747; Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Test (1936), 22 Virginia Law Review, 910; Barnett, The Foundations of the Distinctions Between Public and Private Functions in Respect to the Common-Law Tort Liability of Municipal Corporations (1937), 16 Oregon Law Review, 250; Fuller and Casner, Municipal Tort Liability in Operation (1941), 54 Harvard Law Review, 437; Peterson, Governmental Responsibility for Torts in Minnesota (1942), 26 Minnesota Law Review, 293; Warp, The Law and Administration of Municipal Tort Liability (1942), 28 Virginia Law Review, 360; Repko, American Legal Commentary on the Doctrines of Municipal Tort Liability (1942), 9 Law and Contemporary Problems, 214; Green, Municipal Liability for Torts (1944), 38 Illinois Law Review, 355; Smith, Municipal Tort Liability (1949), 98 Michigan Law Review, 41; Antieau, The Tort Liability of American Municipalities (1952), 40 Kentucky Law Journal, 131; Price and Smith, Municipal Tort Liability: A Continuing Enigma (1953), 6 University of Florida Law Review, 330; Bailey, The Basis of Tort Liability of Municipal Corporations in the State of Oklahoma (1954), 7 Oklahoma Law Review, 1; Tort Liability of Municipal Corporations in Pennsylvania (1956), 17 University of Pittsburgh Law Review, 674; David, Tort Liability of Local Government: Alternatives to Immunity from Liability or Suit (1959), 6 University of California at Los Angeles Law Review, 1; Harper, Law of Torts (1933), 658, Section 295; Prosser, Law of Torts (2d), (1955), 774; 2 Harper and James, The Law of Torts (1956), 1610 and 1619, Sections 29.3 and 29.6.
     
      
       The following list of reported Ohio eases, which is fairly complete, clearly demonstrates the morass of inconsistencies and changes of mind which have occurred as the result of attempts to apply the “simple rule” for determining when a municipal corporation will be liable under the doctrine of respondeat superior or immune from liability for negligence.
      Governmental
      Construction of sewer
      
        City of Salem, v. Harding (1929), 121 Ohio St., 412
      
        Hutchinson v. City of Lakewood (1932), 125 Ohio St., 100
      Creation and maintenance of police department
      
        Aldrich v. City of Youngstown (1922), 106 Ohio St., 342
      Fire department
      
        Fredrick, Admx., v. City of Columbus (1898), 58 Ohio St., 538
      
        Wheeler v. City of Cincinnati (1896), 19 Ohio St., 19
      Operation of hospital
      
        Lloyd V. City of Toledo (1931), 42 Ohio App., 36
      Collecting garbage
      
        Broughton v. City of Cleveland (1957), 167 Ohio St., 29
      
        Maintenance of sanitary land fill for disposal of garbage and refuse
      
        Osborn v. City of Akron (1960), 171 Ohio St., 361
      Construction of sewage plant
      
        Ratliff v. Akron (1959), 82 Ohio Law Abs., 353
      Collecting rubbish
      
        Gorman v. City of Cleveland (1927), 26 Ohio App., 109
      
        Bademan v. Cleveland (1952), 66 Ohio Law Abs., 175
      Construction and maintenance of park and swimming pool
      
        Selden v. City of Cuyahoga Falls (1937), 132 Ohio St., 223
      Maintenance of public park in natural state
      
        City of Cleveland v. Walker, Admx. (1936), 52 Ohio App., 477
      Maintenance and control of combined park and zoo
      
        Crusafi v. City of Cleveland (1959), 169 Ohio St., 137
      Municipal building
      
        Tinsley v. Cincinnati (1957), 78 Ohio Law Abs., 419
      Construction and maintenance of park
      
        Snider v. Youngstown (1938), 27 Ohio Law Abs., 231
      
        Improvement and maintenance of streets
      
        Standard Fire Ins. Co. v. City of Fremont (1955), 164 Ohio St., 344 Davis v. Charles Shutrump & Sons Co. (1942), 140 Ohio St., 89
      
        City of Dayton v. Glaser (1907), 76 Ohio St., 471
      
        Village of Blue Ash v. City of Cincinnati, 173 Ohio St., 345
      Barricading street for coasting
      
        City of Mingo Junction v. Sheline, Admx. (1935), 130 Ohio St., 34
      Street cleaning
      
        City of Akron v. Butler (1923), 108 Ohio St., 122
      
        Galluppi v. City of Youngstown (1936), 55 Ohio App., 331
      Traffic lights
      
        Martin v. City of Canton (1931), 41 Ohio App., 420
      Issuing and revoking building permits
      
        James v. City of Toledo (1927), 24 Ohio App., 268
      Jail or workhouse
      
        Wittenbrook, Admx., v. Columbus, 33 Ohio Law Abs., 586
      
        Bell v. City of Cincinnati (1909), 80 Ohio St., 1
      
        Proprietary
      Operation and upkeep of sewer
      
        City of Portsmouth v. Mitchell Mfg. Co. (1925), 113 Ohio St., 250
      Airport
      
        Village of Blue Ash v. City of Cincinnati (1960), 173 Ohio St., 345
      Fire department
      
        Fowler v. Cleveland (1919), 100 Ohio St., 158
      Operation of hospital
      
        Hyde v. City of Lakewood (1961), 17 Ohio Op. (2d), 61
      Collecting garbage
      
        City of Cleveland v. Russo, Admr. (1918), 98 Ohio St., 465
      
        Operation of transportation system
      
        Zangerle, Aud., v. City of Cleveland (1945), 145 Ohio St., 347 Cleveland Ry. Co. v. Village of North Olmstead (1935), 130 Ohio St., 144
      Construction and maintenance of water system
      
        City of Barberton v. Miksch (1934), 128 Ohio St., 169
      Cemetery
      
        City of Toledo v. Cone (1884), 41 Ohio St., 149
      Maintenance of arts and crafts building as part of recreation program
      
        Eversole v. City of Columbus (1959), 169 Ohio St., 205
      Municipal auditorium
      
        State, ex rel. White, v. City of Cleveland (1932), 125 Ohio St., 230
      Municipal stadium
      
        Chúpele, Admr., v. City of Akron (1951), 89 Ohio App., 266
      Renting of memorial building
      
        Dean v. Board of Trustees of Soldiers & Sailors Memorial Bldg. (1940), 65 Ohio App., 362
      
        Construction of off-street parking facility
      
        Zaras v. City of Findlay (1960), 112 Ohio App., 367
      Operation of off-street parking facility
      
        Cutnaw v. City of Columbus (1958), 107 Ohio App., 413
      Municipal golf course
      
        Gorsuch v. Springfield (1945), 43 Ohio Law Abs., 83
      Wall of municipal building left standing after fire
      
        Lebanon v. Loop (1935), 20 Ohio Law Abs., 302
      Supplying of electricity
      
        Butler v. Karb, Mayor (1917), 96 Ohio St., 472
      
        Travelers Ins. Co. v. Village of Wadsworth (1924), 109 Ohio St., 440
     
      
       In McDowell v. State Highway Commissioner (1961), 365 Mich., 268, 112 N. W. (2d), 491, the Supreme Court of Michigan refused to extend the doctrine of the Williams case beyond a municipal corporation and to the state.
     
      
       Footnote on Page 399.
     
      
       Footnote on Page 400.
     
      
       Footnote on Page 402.
     