174 N.E. 142 | Ohio Ct. App. | 1930
This action came into this court on a petition in error to the common pleas court of Cuyahoga county.
In that court the action was one in mandamus to compel Auditor Rusk of the city of Cleveland to issue a warrant in favor of relator, Garrett A. Morgan, in the sum of $2,000, and the court of common pleas held that the relator was not entitled to the writ and so found against him. It is to reverse that finding that error is prosecuted here.
The history of the causes which gave rise to this litigation is of exceeding interest and must have stirred the minds and hearts of many of Cleveland's citizens, for it relates back to 1916, at which time a great calamity shocked the people of Cleveland when an explosion took place in the water works tunnel that was then being constructed, in which a great many workmen lost their lives, and it records many *111 deeds of valor and heroism, especially on the part of the relator, Morgan.
It seems that at the time of this gas explosion in the tunnel Morgan was at home and was aroused from his sleep by the persons in charge of the rescue work, and was requested to go to the scene of the disaster and to use an invention which he had perfected, a gas mask, to see whether he could not rescue some of the persons who were in danger in the tunnel. The record shows that he was requested by a police inspector in charge, and by other high officers who came to his house and took him to the scene of the disaster, to go down into the tunnel, which he did, although others were afraid, and he succeeded in bringing to the surface several men who had died from the explosion, and recovered several persons who were resuscitated and their lives saved.
This matter attracted wide attention, and I believe the record shows that he made demands for compensation at various times, and that ultimately the Cleveland council, recognizing his heroic conduct, and recognizing that he was requested by the authorities to go into this place of danger and hazard his life, sought to compensate him by passing an ordinance authorizing the city to pay him $2,000, for which the city auditor refused to issue a warrant, claiming that there was no basis for the allowance of such claim.
We have gone over this record and heard the arguments of counsel, and we wonder where the basis for this objection is. If we understand the nature of the charter of the city of Cleveland it has within its proper domains the same power that the Ohio Legislature would have to pass private bills, or to do anything *112 that the Legislature might do. Now the thing that we wish to accentuate in this case is that Morgan was not a volunteer, that he performed these services upon the request of the authorities; and that appears to have been a point which the learned judge in the court below seems to have lost sight of. Of course, if a man does a heroic act and is a mere volunteer, he cannot recover; nor can a subsequent promise to pay him be the basis of a recovery. There must, not only have been a promise, but it must have been based upon a prior request or legal liability; but where there is a prior request, and then after the services are rendered there follows the subsequent promise, under all the laws of contracts of which we have knowledge there is laid a perfect basis for a right to recover.
Now we want to cite in this connection a case that arose in this county. Spitzig v. State, ex rel. Hile,
Now, adverting again to the instant case, the difference between it and the case of which I have just spoken is that in the instant case a man at the request of the authorities performed services which were not only laudable, but heroic, and subsequently the legislative body of the city, having the same plenary powers within its province that the Legislature of the state has, passed an ordinance authorizing the payment of $2,000 to this man, and we think that it had power to pass such legislation, and we further think the record in this case shows that the council was not only authorized to pass the bill, but that the city auditor ought to have paid it; and we are of opinion that the court below, in refusing to issue the writ of mandamus, misunderstood the facts and the law, and that his finding was contrary to the facts, to the greater weight of evidence, and to the law, and for these reasons the judgment of the common pleas court will be reversed. Having all the facts before us, and the relator being entitled to the writ of mandamus, and having original jurisdiction in mandamus, we order the writ issued that the court of common pleas should have ordered issued. The judgment of the court will therefore be that the cause be reversed, and that the writ of mandamus issue ordering the city auditor to draw the voucher to pay this $2,000.
Judgment accordingly.
LEVINE, J., concurs.
SULLIVAN, J., not participating. *115