Opinion
No. 71-294
Decided May 24, 1972.
Municipal corporations — Not liable for tort of employees, when — Tort by assistant law director — Not committed in scope of employment — Pleading.
APPEAL from the Court of Appeals for Cuyahoga County.
In 1969, Donald J. Guittar, Assistant Law Director of Cleveland, and the appellee herein, Milt Schulman, met as opposing counsel in a reapportionment action ( Tanko v. Stringer, case No. C69-119, filed in the United States District Court, Northern District of Ohio. Guittar represented certain Cleveland municipal and public officers who were named defendants.
On April 2, an alleged altercation occurred at appellee's office, between him and Guittar. The private dispute that resulted therefrom found Schulman as a defendant in Cleveland Municipal Court on a criminal assault and battery charge, with Guittar as affiant and prosecuting witness. Schulman was subsequently acquitted, and thereafter filed an action of his own in the Common Pleas Court of Cuyahoga County against the city of Cleveland and Guittar, wherein damages for trespass, personal injuries and malicious prosecution were asked against the city.
The city demurred separately to the latter action, urging that "* * * the office of Law Director is an executive office of defendant, city, the duties of which are governmental and that the defendant, city, has governmental immunity and no liability for the torts of defendant, Guittar in his capacity as Assistant Law Director." The demurrer was sustained by the trial court.
The Court of Appeals for Cuyahoga County reversed that decision, stating:
"The trial court committed error in sustaining the defendant city of Cleveland's demurrer. It is impossible to determine from a reading of the plaintiff's petition whether the acts of the defendant, Donald J. Guittar, were in furtherance of a proprietary or governmental function of the city of Cleveland."
The matter is before this court pursuant to our allowance of a motion to certify the record.
Mr. Clarence L. James, Jr., director of law, and Mr. Paul J. Brady, for appellant.
Messrs. Schulman Schulman and Mr. Jack M. Schulman, for appellee.
The question of whether Donald J. Guittar acted within the scope of his employment as an employee and agent of the city is prefatory to any consideration of governmental immunity in this matter. As we stated in Rogers v. Allis-Chalmers Mfg. Co. (1950), 153 Ohio St. 513, 526, 92 N.E.2d 677:
"In order to obligate a master to respond in damages for the negligence of a servant it is necessary * * * that the servant be acting within the scope of his employment * * *." See, also, Little Miami Rd. Co. v. Wetmore (1869), 19 Ohio St. 110, and Higbee Co. v. Jackson (1920), 101 Ohio St. 75, 128 N.E. 61.
We are unable to discern any grant of authority in either the Revised Code or the Cleveland Municipal Charter which allows an assistant law director to gratify his personal resentments, either in the form of a physical assault or a lawsuit arising therefrom, while engaged in the execution of his appointed tasks.
As to the claim for damages against the city arising out of the alleged attack upon Schulman by Guittar, our statement in Vrabel v. Acri (1952), 156 Ohio St. 467, 474, 103 N.E.2d 564, is dispositive:
"* * * an intentional and wilful attack committed by an agent or employee, to vent his own spleen or malevolence against the injured person, is a clear departure from his employment and his principal or employer is not responsible therefore." See, again, Little Miami Rd. Co. v. Wetmore, supra. Likewise, Guittar's triggering of the criminal proceedings against Schulman, which forms the basis of the malicious prosecution charge in the instant case, cannot be considered more than a vehicle chosen by Guittar to vent a personal grievance.
While it is true that a demurrer (now motion to dismiss) technically admits certain allegations in a petition (now complaint), it is also well established that unsupported conclusions of the complainant are not so admitted.
The trial court's judgment sustaining the demurrer was correct. Therefore, the judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.