
    Ferber, Admr., et al. v. Board of Trustees of Berlin Township.
    (Decided May 15, 1933.)
    
      
      Messrs. Young & Young and Messrs. Mooney, Bib-bee & Edmunds, for plaintiffs in error.
    
      Mr. Alvin F. Weichel, prosecuting attorney, and Messrs. Hertlem & Schwer, for defendant in error.
   Williams, J.

Nelson Ferber, Admr., as plaintiff, brought an action in the Court of Common Pleas of Erie county against the Board of Trustees of Berlin township to recover for damages to buildings and personal property in the sum of $7,610, claimed to have been caused by fire resulting from the negligence of the defendant in the operation along the highway of a road roller, consisting of steam traction engine with road roller attachments. Thereafter certain insurance companies were made parties defendant, and they filed an answer and cross-petition, including therein averments substantially the same as those in the petition, and set out that money had been paid by them to the plaintiff on fire insurance policies covering .the property loss and damage by fire. Later the plaintiff filed an amendment and supplement to the petition, in which he set out that he was the duly appointed, qualified and acting administrator of the estate of Mabel Ferber, deceased; that she died since the commencement of the action; that the real estate described in the original petition was owned in common by the plaintiff and decedent at the time of the burning of the buildings thereon; and that the personal property described in plaintiff’s petition was owned by the plaintiff individually. The defendant, the Board of Trustees, filed answers to these pleadings raising issues of fact, and the case came on for trial. After the jury had been impaneled, and the opening statements made by counsel, and before any evidence had been introduced, the court sustained a motion to dismiss the petition, the amendment and supplement to the petition, and the cross-petition, upon the ground that they do not state a cause of action against the defendant, the Board of Trustees.

It appears from the petition that the road roller involved was purchased by the township trustees for use in the building and maintaining of public roads in Berlin township. Section 3298-17, General Code, which was in force at the time, provides as follows:

“Bach board of township trustees shall be liable, in its official capacity for damages received by any person, firm or corporation, by reason of the negligence or carelessness of said board of trustees in the discharge of its official duties.”

Defendant in error contends that the words “official duties” as used in this section should be construed to mean only duties imposed upon the board of township trustees, by the laws relating to highways. If we assume that this contention is correct, we are nevertheless of the opinion that the allegations of the petition gave rise to an inference that, at the time the fire was communicated from the engine to the buildings and set them on fire, as the allegations of the petition set forth, the road roller was being used for the purposes for which it was purchased, that is to say “in the building and maintaining of the public roads in said township.” In this connection the plaintiff is aided by the presumption that the Board of Trustees was at the time in question performing its official duties in connection with the operation of the road roller and legitimately using it for the purposes for which it was acquired. The petition further alleges that at the time defendant board, through its duly constituted agent and employee, who was engaged upon the business of said defendant and acting within the scope of his employment as such agent, caused the traction engine to pass along the highway in front of the barn of plaintiff, and so negligently operated and maintained said engine, that sparks were emitted therefrom setting the barn on fire and causing the damages as specified in the petition. The petition then specifically sets out the alleged grounds of negligence. If the defendant in error was driving its own road roller upon the highway, on its own business, in its own township, how can it be said without further explanation that it was not being used for highway or road purposes, or for some purpose necessarily incident thereto? A board of township trustees has little use for a road roller except in making and maintaining roads.

Giving the petition, the amendment thereto, and the cross-petition a liberal construction, as required by the Code of Civil Procedure (Section 11345, General Code), a good cause of action was stated in favor of the plaintiff and the cross-petitioners. The judgment of the court below will therefore be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Richards and Lloyd, JJ., concur.  