
    Van Scyog, Admr., v. Roth et al., Board of County Commissioners of Monroe County.
    
      (No. 16291
    Decided January 6, 1964.)
    
      Mr. L. C. Young, Mr. Allan Sherry and Mr. A. G. Lancione, for plaintiff.
    
      Mr. T. J. Eremer, Jr., prosecuting attorney, Mr. John M. Adams and Messrs. Knepper, White, Richards & Miller, for defendants.
   Hoddinott, J.

Plaintiff, as administrator of the estate of his deceased sixteen-year-old daughter, brought this wrongful death action against the board of county commissioners of Monroe County.

The girl and a man, who was married and the father of small children, were in an automobile which turned off a main highway onto a narrow gravel road after dark. The automobile proceeded a short way, and then passed over the stone bridge where the two later met their death. About 150 feet farther on, the vehicle parked. The investigating officer testified that tire tracks and gravel kicked up by the auto wheels indicated the vehicle later backed rapidly toward and onto the bridge. Near the center, it veered over the edge and was submerged in the stream. Plaintiff’s decedent and her companion drowned.

There were no guardrails on the bridge. Originally, stone ledges less than a foot high stretched along each edge. At the place, however, where the automobile went over the side, several stones were missing and there was no obstacle. There also were no guardrails on the land at each end on the bridge.

After deliberation, the jury returned a unanimous verdict for the defendant county commissioners.

Plaintiff moved for a new trial and alleged the following grounds:

1. Irregularity in the proceedings of the Court and the prevailing party and abuses of discretion by which this moving party was prevented from having a fair trial.

2. Misconduct of the counsel for the defendant.

3. That the final order and judgment is not sustained by sufficient evidence and is contrary to law.

4. Errors of law occurring at the trial and excepted to by this party making this application.

5. Error in that the Court refused to give proper special charges to the jury before argument.

Plaintiff contends that the Court erred in the following portion of the general charge to the jury:

There is no law which requires that guardrails be built on the bridge itself.

Plaintiff pleaded and relies upon Sections 5591.36 and 5591.37, Bevised Code, for his claim:

Sec. 5591.36. The board of county commissioners shall erect and maintain, where not already done, one or more guardrails on each end of a county bridge, viaduct, or culvert more than five feet high and on each side of every approach to a county bridge, viaduct, or culvert, if the approach or embankment is more than six feet high. The board shall also protect, by suitable guardrails, all perpendicular wash banks more than eight feet in height, where such banks have an immediate connection with a public highway other than state highways, or are adjacent thereto in an unprotected condition. . .

It shall be sufficient compliance with this section, if the board causes to be erected and maintained a good stoekproof hedge fence where a guardrail is required. Such guardrails or hedge fences shall be erected in a substantial manner, having sufficient strength to protect life and property. . .

Sec. 5591.37. Failure to comply with Section 5591.36 of the Bevised Code shall render the county liable for all accidents or damages as result of such failure.

It is clear that these statutes require guardrails under certain conditions on the land near a bridge. They say nothing about guardrails on the bridge itself.

The board of county commissioners is not liable for ordinary negligence, but only for violations of duties defined by statutes, which shall be strictly construed. The first paragraph of the syllabus of Weiher v. Phillips (1921), 103 Ohio St. 249, is as follows:

A board of county commissioners is not liable in its official capacity for damages for negligent discharge of its official duties except in so far as such liability is created by statute and such liability shall not be extended beyond the clear import of the terms of the statutes.

The rule of strict construction is specifically applied to Secs. 5591.36 and 5591.37, supra, by Board of County Commissioners of Franklin County v. Darst (1917), 96 Ohio St. 163, wherein the Court says, 96 Ohio St. at 166:

The following legal principles have been established by the decisions of this court: That the board of county commissioners are not liable at common law in their gMasi-corporate capacity for damages resulting from negligence in the performance of their official duties; that in order to impose such liability for failure to perform official functions of this character, the state, by legislative enactment, must fix the terms and the measure of liability for official delinquencies; and, further, that statutes imposing such liability, being in derogation of the common law, are not to be extended beyond the plain meaning of their terms. Commissioners of Hamilton County v. Mighels, 7 Ohio St., 110; Commissioners of Morgan County v. The Marietta Transfer & Storage Co., 75 Ohio St., 244, and Ebert v. Commissioners of Pickaway County, 75 Ohio St., 474.

In the interpretation of a statute seeking to impose a liability against the board, where it is sought to abrogate or modify the common-law rule, the statutory terms must clearly import such intention, and, if doubtful or ambiguous, should be resolved against its imposition.

Plaintiff has cited Strobel, Admr., v. City of Cincinnati (1929), 32 Ohio App. 333 at 338, as authority contrary to the court’s instruction that no law requires guardrails to be built on the bridge itself. The cited case concerns a city bridge; the statutes about county bridges are obviously not construed. The opinion unfortunately does not state what statute is being construed; however, Section 3714, General Code [now Sec. 723.01, Revised Code], was in effect at the time and required the city to keep bridges within the corporation “open, in repair, and free from nuisance.” County Commissioners are not subject to such a broad duty as to county bridges.

One purpose of the guardrails required by Section 5591.36, supra, is to warn the motorist. Their absence may be the proximate cause of an automobile going off the road or bridge at a place other than where the guardrails should have been. David Clarke, “The Absence of Guard Rails as the Proximate Cause of Injury” (Note) 11 Ohio Opinions 167. The issue of proximate cause, however, was squarely submitted in the instant case to the jury. A general verdict was returned for the defendants.

The prosecuting attorney contends that the defendant commissioners are not liable as a matter of law because the bridge in question is not a county bridge.

It was built of stone in the last century. The road on which it is located was apparently a county road (Plaintiff’s Exhibit C) before it was taken into the state highway system on December 30, 1936. (Plaintiff’s Exhibit A, page 224.) The only evidence tending to show it was again a county road at the time of the accident is Plaintiff’s Exhibit B, admitted by stipulation. This is a copy of a purported copy of a letter from the state highway department’s files, gotten for the defendant Guy Roth by his son, who is an official in the state highway department. It was obtained more than a year after the date on the document. All the commissioners from that date to the present testified they do not remember seeing the original letter. They testified it was their practice to spread such letters upon the Commissioners’ Journal. This purported letter is not to be found there. Plaintiff’s Exhibit B is as follows:

November 20, 1961

Board of Commissioners

Monroe County

Woodsfield, Ohio

Gentlemen:

The following entry was made on the Journal of the Director of Highways, November 20, 1961, Volume 46, Page 1204.

Monroe County — STATE ROUTE NO. 379 ABANDON-GRANTED EFFECTIVE NOVEMBER 21, 1961.

Pursuant to Chapter 5511 of the Revised Code of Ohio, the Director of Highways of Ohio on October 6, 1960, approved a relocation of a portion of State Route No, 379, hearing having been held in Woodsfield, Ohio, on September 14, 1960. Tbis was recorded on Page 1138, Volume 45, of the Journal of the the Director of Highways. Said approval stated that the abandonment of the old highway would not be effective until the improvement of the new location was accepted and proper entry made in the Journal of the Director of Highways.

In view of the fact that the improvement of the above mentioned relocation has been accepted, Director Preston orders that the abandonment referred to in the above mentioned Journal Entry be effective as of November 21, 1961, and that said former location reverts to the Monroe County Highway System.

Very truly yours,

R. A. Booth

Administrator of Contract Sales

Division of Design and Construction

Of course, the statement in the last paragraph that the road reverts to the county highway system is a self-serving conclusion of law of the state highway department, which is not binding on this court. See Sroka v. The Green Cab Co. (1929), 35 Ohio App. 438; Bellard v. Board of County Commissioners of Erie County (1928), 31 Ohio App. 224.

A bridge is part of the road in which it is located. See Hanks v. Board of County Commissioner of Adams County (1929), 35 Ohio App. 246.

Plaintiff bases his claim that the bridge in question is a county bridge solely upon the abandonment statute, Sec. 5511.01, Revised Code:

Before . . . making any changes in existing highways comprising the [state highway] system, the director shall give notice, by publication in one newspaper of general circulation in each of the counties ... in which it is proposed to make such changes, once each week for two successive weeks. Such notice shall state the time and place of hearing which shall be held in the county ... in which it is proposed to make such changes. The notice shall state ... the change proposed to be made in an existing highway of the system. Hearings shall be open to the public and the director or a deputy designated by him shall attend and hear any proof offered on such matter. Any changes made in existing highways by the director . . . following such hearing shall he certified to the board of county commissioners of the counties interested therein.

. . . The director may, upon giving notice and holding a hearing, abandon a highway on the state highway system, or part thereof which he determines is of minor importance, or which traverses territory adequately served by another state highway, and the abandoned highway shall revert to a county or township road or municipal street. A report covering such action shall be filed in the office of the director, and the director shall certify his action to the board of the county in which such highway or portion thereof so abandoned is situated. (Emphasis supplied.)

The emphasized clause in the above statute is ambiguous. When a county road is taken into the state highway system and later abandoned, the legislature did not intend that it would become a county road again, solely by virtue of this statute. The legislative history shows that the state highway system was first created in 1927 out of the existing inter-county highways and main market roads. Since then, other roads have been added from time to time. The original abandonment statute, Section 1189, General Code, 112 Ohio Law 430, 438, provided the abandoned road

shall revert to its former status as a county or township road. (Emphasis supplied.)

The words, “its former status as,” are absent from the present abandonment statute and their deletion indicates the statute is not meant to be self-operating.

For a road abandoned under Section 5511.01, supra, to become a county road, that statute must be applied in pari materia with the road classification statute, Section 5535.01, and the county road system statute, Section 5541.02:

Section 5535.01:

The public highways of the state shall be divided into three classes: state roads, county roads, and township roads.

(A) State roads include the roads and highways on the state highway system.

(B) County roads include all roads which are or may be established as a part of the county system of roads as provided in sections 5541.01 to 5541.03, inclusive, of the Revised Code, which shall be known as the county highway system. Such roads shall be maintained by the board of county commissioners.

(C) Township roads include all public highways other than state or county roads. The board of township trustees shall maintain all such roads within its township. The board of county commissioners may assist the board of township trustees in maintaining all such roads . . .

Section 5541.02:

. . . Such board of county commissioners . . . shall select and designate a connected system of county highways, of such mileage as it deems proper and expedient, connecting with the intercounty and state highways of such county all of the villages and centers of rural population within the county. Such system of highways, when selected and designated by the board of county commissioners, shall be known as the system of county highways of the county, and all of the roads composing such system shall be known and designated as county roads . . . Upon the completion of its investigation and the designation of a system of county highways, the board of county commissioners shall require the engineer to make a map thereof. A copy of this map, with the mileage of the selected roads indicated thereon, together with a brief statement by the board of county commissioners of its reasons for the selection made, shall be transmitted to the director of highways.

If the director finds that the system has been designated in substantial compliance with this section and section 5541.03 of the Revised Code, and that all portions of the system of county highways connect with either a state or inter-county highway, or another county road, he shall within sixty days approve such system and certify his approval to the board of county commissioners, which shall cause a copy of such map, approved by it, to be made a part of its records and shall cause a copy thereof to be filed in the office of the county engineer and of the clerk of each township within the county. The system of roads designated upon such map shall then become the system of county roads of the county. ... No state or intercounty highway or part thereof shall he included in the system of county highways. The board of county commissioners may make changes in or additions to the county system as in the manner provided by this section.

To “establish” a road on the county system (Sec. 5535.01, supra), Section 5541.02, supra, must be complied with. In Robinson v. Swing (1939), 70 Ohio App. 83, the court said in. the paragraph four of the syllabus :

The county commissioners must take affirmative action in order that a county road may be established as such.

The court says, 70 Ohio App. at 91:

. . .“Establish,” according to the Oxford English Dictionary means: “To fix, settle, institute, or ordain permanently — to set up on a secure basis, to render stable or firm.”

The Robinson case does not involve the abandonment statute, Section 5511.01, supra, but the reasoning of Judge Simon Ross of the Hamilton County Court of Appeals and the principles he enunciates are equally applicable to it.

The case does involve the present Section 305.12, Revised Code. In the instant case, no violation of this statute was pleaded or proved, but it is briefly considered here for the sake of completeness. Section 305.12, Revised Code, provides:

The board of county commissioners may sue and be sued, plead and be impleaded in any court of judicature, bring, maintain, and defend all suits in law or in equity, involving any injury to any public, state, or county road, bridge, ditch, drain, or watercourse established by such board in its county, and for the prevention of injury thereto. The board shall be liable, in its official capacity, for damages received by reason of its negligence or carelessness in not keeping any such road or bridge in proper repair, . . . (Emphasis added.)

Defendants in the instant case are not liable under this latter statute because the bridge was not “established” by the board.

The court should have found as a matter of law in the instant case that the bridge was not a county bridge. There is no evidence that some of the requirements of the abandonment statute, Sec. 5511.01, supra, were met: that the director gave notice of and advertised a public hearing, that he made the proper entries in his journal, and that he certified his proceedings to the defendants. Under the road classification and county-road system statutes, Sections 5535.01 and 5541.02, supra, it was not shown that the defendants selected and designated the road as part of the county system, that the county engineer prepared a map of the road, and that such a map was transmitted to the state highway director for his approval.

If in fact the state did properly abandon the road, then under the road classification statute, Section 5535.01 (C), supra, the road became a township road. See Adamson et al v. Wetz et al. (1952), 69 Ohio Law Abs. 281 (Montgomery County Court of Appeals). Under this same section, the county may assist in maintaining township roads, so that any repair work done by the county engineer’s office is of no significance in determining whose road it was.  