
    Washington Township v. Rapp.
    (Decided December 10, 1934.)
    
      Mr. Frazier Beams, prosecuting attorney, and Mr. Paul W. Alexander, for plaintiff in error.
    
      Mr. Manuel Zimmerman, for defendant in error.
   Klinger, J.

The plaintiff, Daniel Rapp, brought his action against the defendant, Washington township, Lucas county, Ohio, in which he averred that on November 7, 1932, he was walking on the extreme northerly edge and side of the Sylvania-Alexis road, which is a public road running in an easterly and westerly direction in Lucas county, Ohio; that while he was so walking, an employee of the defendant township drove a certain automobile truck in an easterly direction on the northerly side and edge of said road, striking the plaintiff and injuring him. In this petition, the plaintiff averred that the defendant was guilty of wilfulness, wantonness, recklessness, negligence and carelessness, and that these acts were the proximate cause of his injuries. The specific acts that the plaintiff complains of were, first: that the defendant operated its automobile truck on the left hand side of said road; second, that the defendant failed and neglected to give an audible sound or noise to warn the plaintiff of its approach; third, the defendant failed and neglected to keep a lookout, thus failing to see the plaintiff; fourth, defendant failed and neglected to apply the brakes and stop before striking plaintiff; fifth, failed and neglected to turn, change or alter its course to avoid striking the plaintiff; and, sixth, the defendant failed to keep and operate its truck on the right hand side of the road; and that as a direct and proximate result of said conduct on the part of the defendant the plaintiff sustained injuries as described in his petition.

After overruling motions on behalf of defendant to make definite and certain, and also a demurrer, trial was had on August 24, 1934, an answer having been filed, which trial resulted in a general verdict in favor of Rapp in the sum of $1500. Returned with the general verdict were three special findings requested by the plaintiff in error, No. 2 of which was as follows:

“Did the driver of the truck intentionally steer out of his normal course in order to scare or strike plaintiff?”

The answer of the jury, eleven jurors concurring therein, was “yes.” This finding was journalized and is a part of the record certified to this court for review. Plaintiff in error moved the court for an order setting aside the general verdict and for a judgment in its favor on the ground that this special finding of the jury was inconsistent therewith. This motion was overruled and judgment was entered on the general verdict, to all of which plaintiff in error objected and excepted, and it now alleges as error requiring a reversal of the judgment and the entry of a final judgment in its behalf, the action of the court taken on this motion. We have no bill of exceptions before us for consideration, but all of the foregoing facts appear on the face of the record.

Under the doctrine of respondeat superior, the plaintiff can recover only under the facts pleaded, and under the common law this doctrine was not available as against a political subdivision, such as the defendant in this action. Dunn v. Agricultural Society, 46 Ohio St., 93, 18 N. E., 496, 15 Am. St. Rep., 556, 1 L. R. A., 754; 63 Corpus Juris, 172, Section 169.

So that, if the plaintiff can recover from the township, it must be by virtue of Section 3298-17, General Code. Since this statute is in derogation of the common law, it must be strictly construed. Board of County Commrs. of Morgan Co. v. Marietta Transfer & Storage Co., 75 Ohio St., 244, 79 N. E., 237; Ebert v. Commissioners of Pickaway Co., 75 Ohio St., 474, 80 N. E., 5; Lexa v. Zmunt et al., County Commrs., 123 Ohio St., 510, 176 N. E., 82.

A township, or political subdivision, such as the defendant in this case, is not liable in tort unless made so by statute. Dunn v. Agricultural Society, supra, at page 96. Hence, under the pleadings and the law the plaintiff would be entitled to recover in this case unless the above quoted special finding defeats his right of recovery.

There is no provision under the common law or the statute making a political subdivision liable for injury or damages sustained because of the wilful misconduct of any of its officers or employees, a wilful act being one done intentionally, purposely, designedly. And, as stated before, Section 3298-17, General Code, must be strictly construed and can not be interpreted to cover acts or conduct beyond those specifically designated in the statute.

For any injury sustained because of tbe wilful misconduct of tbe employee or driver of tbe truck, damages can not be recovered from tbe political subdivision, and tbe only relief that tbe party injured would bave would be against tbe party, whether be be an officer or employee, inflicting tbe injury. 22 Ruling Case Law, 485, Section 162; Archuleta v. Floersheim Mercantile Co., 25 N. M., 632, 187 P., 272, 40 A. L. R., 199; Gause v. Peeler et al., Twp. Trustees, 41 Ohio App., 192, 180 N. E., 384; Dunn v. Agricultural Society, supra; Lexa v. Zmunt et al., County Commrs., supra.

Tbe special finding was directed to an issue made by tbe pleadings, and tbe answer of tbe jury excluded tbe other alleged grounds of liability pleaded in tbe petition, and, being inconsistent with tbe general verdict, tbe trial court erred in overruling tbe motion of plaintiff in error for a judgment in its favor. Tbe judgment of tbe Court of Common Pleas is therefore reversed and final judgment entered for plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Overmyer and Lloyd, JJ., concur.

Klinger, J., of the Third Appellate District, sitting in place of Richards, J.  