#### Bello *v.*City *of*Cleveland.

*Municipal corporations*— Negligence—Streets *and*sidewalks— *Section S'llJf, General Code*— Liability—Notice *and knowledge by agent or officer*— Proof *of another nuisance*— Cove*nant not to sue abutting owner*— Precludes *recovery against municipality, when.*

1. The liability of a municipality under Section 3714, General Code, can only be established by proof of notice or knowledge of a dangerous condition in a street, or other public •place as therein enumerated, or of its existence for such length of time as to impute notice or knowledge, or by proof that the agents and officers of the municipality actively caused such condition.

2. Such notice or knowledge is not established by proof that an agent or officer of the municipality knew of certain acts of an abutting property owner, which had previously caused another nuisance in the same vicinity; nor under such circumstances is the municipality rendered liable.

3. Where a dangerous condition in one of the highways of a municipality has been caused solely by negligent acts of an *95abutting property owner, resulting in injury to a person lawfully traversing the highway, and such person first pursues the abutting owner on the ground of negligence, and in settling such claim covenants to abstain from bringing any further action against him by reason of such injuries, such covenant will preclude any action against or recovery from the municipality thereafter. *(Zanesville*v. *Fannan,*53 Ohio St., 605, and *Morris*v. *Woodlurn,*57 Ohio St., 330, approved and followed.)

(No. 16756

Decided November 14, 1922.)

Ebrob to the Court of Appeals of Cuyahoga county.

The parties stand' in this court in the same relation as in both lower courts, and will therefore be referred to as plaintiff and defendant.

The petition alleges that plaintiff was employed as a private night watchman in the city of Cleveland, Ohio, and on the night of November 16, 1918, between eight and nine o’clock, while in the discharge of his duties, was walking along the north sidewalk of St. Clair avenue, opposite the premises of Bardons & Oliver, a manufacturing firm, at which point he stepped off the sidewalk next to the lot line and fell into an open excavation, which was left wholly unguarded and unmarked by any light or other warning to indicate its existence; that the defendant had notice of the existence of the excavation and that the same had existed for such period of time that the defendant in the exercise of ordinary care would have acquired knowledge of its existence; that the excavation was filled with a scalding substance and plaintiff was burned and scalded severely; and that his injuries will be permanent.

*96The answer pleads two defenses. The first is a general denial, except as to the formal allegations of the petition, and alleges that the injuries, if any, were caused solely by plaintiff’s own negligence and without any fault or negligence on the part of the defendant. The second defense alleges that the location where the injuries occurred is opposite the premises of Bardons & Oliver and that the conditions complained of were created and maintained by said abutting owners; that on December 24, 1918, the plaintiff brought suit against Bardons & Oliver in the court of common pleas of Cuyahoga county to recover damages for his injuries, in which the same facts and conditions were alleged as in the instant suit; that on April 29,1919, a written agreement was entered into between plaintiff and Bardons & Oliver, by the terms of which plaintiff agreed to abstain from bringing any further action against Bardons & Oliver; that on the same day plaintiff consented to an entry on the journal in said cause reading “Dismissed and settled at defendants’ costs;” and that the consideration for such agreement and settlement was the payment to plaintiff by the firm of Bardons & Oliver of the sum of $2,450. The answer further alleged complete and adequate compensation and a satisfaction of plaintiff’s claim, which should be a bar to plaintiff’s action in the instant case and a release of the city of Cleveland from any claim for damages for his injuries.

The essential stipulation of the covenant not to sue Bardons & Oliver was “to abstain from bringing any further action against said George C. Bardons and John G. Oliver * * * for the purpose of recovering damages by reason of injuries sustained *97while I, Frank Bello, was lawfully passing along and upon the sidewalk in front of property situated and located at 5125 St. Clair Ave.,” etc.

Upon the trial of the case there was no testimony even tending to prove an open excavation, but, to the contrary, the undisputed testimony was to the effect that there were no surface indications of a dangerous condition at that point and that when plaintiff stepped off the sidewalk the ground gave way beneath his weight and his leg sank into the boiling water and steam, which caused his injuries. It was further shown that some time prior to the date of the accident an open excavation had appeared near the same point, but on the opposite side of the sidewalk, next to the curb, which was caused by the washing away of the subsoil, which excavation the city repaired by placing cinders and stones therein, and it was believed that all excavation then existing had been fully repaired. While the cause of the first excavation was not then discovered, it was in fact apparently caused by escaping steam from an exhaust pipe from the factory of Bardons *&*Oliver. The pipe ran underneath the sidewalk at that point to the street sewer. There was testimony tending to show that one of the agents of the city saw escaping steam, and it was therefore claimed that the city was thereby advised of the danger of other subsoil erosions, which would be equivalent to notice of future excavations, which, therefore, in the opinion of counsel, rendered the city liable upon its statutory duty to keep the streets open, in repair and free from nuisance.

When the plaintiff Bello was on the witness stand he was cross-examined relative to the former suit *98against Bardons & Oliver, and the settlement of the same and the covenant not to sne. At the close of plaintiff’s testimony the defendant moved for a directed verdict, which was granted, and the petition was dismissed.

This occurred on February 9, 1920. On February 10, 1920, a demurrer was filed to the second defense, which was overruled. Thereupon error was prosecuted to the court of appeals and the judgment of the court of common pleas was affirmed. A motion was then filed in the supreme court to order the court of appeals to certify its record for review, which motion was allowed.

*Messrs. Matheios, Bell &*Winsper, for plaintiff in error.

*Mr. J. Paul Lamb,*director of law, and *Mr. Bay T. Miller,*for defendant in error.

Marshall, C. J.

The plaintiff was denied relief in both lower courts, upon two grounds: first, that the city was not shown to have had notice either actual or constructive of the condition which was the proximate cause of the injuries; and, second, that plaintiff by his settlement with Bardons & Oliver and his covenant not to further pursue his claim against that firm had released the city of Cleveland.

Upon the first of these grounds it has already been observed that the petition is based upon the statutory liability of the city for failing to observe the injunction of Section 3714, General Code, to keep the streets open, in repair and free from nuisance. The petition does not allege negligence in relation to the installation or maintenance of pipes running under the sidewalk, hut merely alleges that there was *99an open excavation in the sidewalk, which was allowed by the city to exist, with knowledge thereof, or that its existence had continued for such length of time as to impute notice and knowledge, and that such excavation was filled with a boiling or scalding substance which the city had negligently permitted to accumulate.

These allegations undoubtedly constitute a cause of action, and if proven would be a proper basis of recovery; but there is not only no proof of an open excavation, but the testimony of plaintiff’s witnesses very clearly establishes the fact that there were no surface indications of a nuisance at that point and that when plaintiff stepped off the sidewalk, the surface, which appeared to be safe and free from even the appearance of danger, suddenly gave way, thereby permitting his leg to sink into the boiling substance and causing the injury and damage. Inasmuch as there was no open defect, in the nature of things the city’s agents could not have notice or knowledge of such non-existent situation.

As a rule of procedure plaintiff could only recover upon proof of the matters alleged in the petition. No advantage seems to have been taken of that rule, however, but, on the contrary, plaintiff was permitted to introduce testimony of the former excavation and of the fact that one of the city’s agents had notice of escaping steam at that time; and it is claimed that the city is chargeable with actual knowledge of the future existence of conditions which escaping steam near that place might tend to produce.

This is extending the doctrine of imputed notice to unprecedented lengths. It is not doubted that if a municipality has actively caused defective or unsafe *100conditions in a street, notice or knowledge is not a prerequisite condition to liability. So also notice may be inferred from the fact that the defective or unsafe condition has existed for so long a time as by fair implication to charge the municipal corporation with notice. And again notice and knowledge are imputed where the city is engaged in making excavations in a street which are inherently dangerous. None of these conditions applies to the present situation. There was no open excavation as alleged, and therefore no notice or knowledge thereof; but it is contended that by reason of the former excavation and the agent of the city having noticed escaping steam the corporate reasoning powers were thereby set in motion, and that the city should not only have reasoned that the steam caused the first excavation but should also have foreseen and foreknown that another excavation would be caused in that vicinity.

It must, however, be clearly borne in mind that the defects in the pipes were not due to any negligence of the city or its agents, and that the defective pipes were the property of Bardons & .Oliver. Indeed it is admitted and even urged by counsel for plaintiff that even Bardons *&*Oliver have not been shown by this record to have been negligent. It has already been seen that the city would be chargeable with knowledge of a nuisance which was actively caused by agents and officers of the city, but in this case the excavation was not caused by the city, neither has it been shown affirmatively that the excavation was the result of negligence on the part of any other person. Because one of the agents of the city knew certain facts from which he might have inferred *101that owners of property abutting upon a sidewalk had been doing certain acts, this court is asked to declare the city responsible for all damages which might flow from any nuisance which might be caused in the adjoining streets by such acts of the abutting owners.

Notice, either actual or imputed, is just as necessary to be proven as the existence of the nuisance itself. This must necessarily mean notice or knowledge of the actual present existence of a condition, and not notice or knowledge of some probable or possible acts of some third person, from which it may be inferred that if those acts are in future committed a nuisance may be caused.

The plaintiff could only recover in this controversy on the ground of some neglect of statutory duty on the part of the city. And such neglect or omission must have proximately caused the injury. The city did not actively cause or maintain a,dangerous condition, or with either actual or imputed knowledge thereof permit its continued maintenance. The cause of the injury, whether proximate or remote, was the escaping steam, because it does not appear that there was any shock or fall, resulting in physical damage, but, to the contrary, that the damage was caused entirely by plaintiff’s leg being severely scalded. We are of the opinion therefore that in any event plaintiff’s injuries and damages cannot be said to be proximately caused by an excavation, and by no possible course of reasoning can it be said that the city caused the existence of the boiling substance or that it had knowledge of its existence at that place.

*102The liability of the city is not grounded upon negligence, but, on the contrary, is grounded upon the failure to perform a statutory duty, and depends upon the actual existence of a nuisance, and notice or knowledge thereof, or upon its actively causing the same, or upon its existence for such length of time as to impute knowledge. In the face of this record, this court, reviewing only questions of law, cannot say that the trial court erred in directing a verdict, or that the court of appeals erred in affirming the judgment of the trial court upon this ground.

Let us therefore look to the second of the questions presented by this record, to-wit, whether plaintiff by his settlement with Bardons & Oliver, and by his covenant not to further proceed against Bardons & Oliver on account of such *injuries,*thereby released the city of Cleveland. This question may be determined by the application of principles which have been definitely settled by Ohio precedents. Throughout the discussion of this branch of the subject it will be assumed for the purposes of the argument that the city had failed to discharge its statutory duty under Section 3714, General Code.

In the arguments of counsel there has been some discussion of the case of *Adams Express Co. v. Beckwith,*100 Ohio St., 348, but there are certain distinguishing elements which make that authority inapplicable to the present controversy. In that case there was a joint tort, a joint liability, and a right to sue several tort-feasors jointly. In making a settlement with one of the joint tort-feasors there was an express reservation of the right to sue other parties jointly responsible. In the instant case the covenant not to sue contains no reservation of a *103right of action against the city of Cleveland. In the *Beckwith case*the syllabus, which contains the law of the case, very clearly features the fact of a special reservation having been made.

Our first inquiry should be directed to whether the city and Bardons & Oliver were joint tort-feasors, and whether they could in any event have been sued jointly. It is noteworthy that the suit was in fact first brought by plaintiff against Bardons & Oliver, in which the city was not joined as defendant, and this fact should have some significance as an indication of what was in the mind of counsel, though of course it is not conclusive on the question.

An artificial classification of torts has been made in the authorities, and a distinction has been made between those which are designated as concurrent and related, on the one hand, and those which are joint, on the other hand. This distinction is clearly stated by Shauck, J., in the case of *Morris*v. *Woodb*urn, 57 Ohio St., 330, at page 335. The same distinction is again recognized and emphasized in *Village of Mineral City*v. *Gilbow,*81 Ohio St., 263. In both of these cases the court has pointed out the essential difference between the liability of a city upon its statutory duty of keeping the streets and sidewalks open, in repair and free from nuisance and the liability of others in actively or negligently causing a nuisance or dangerous condition upon city streets. The abutting property owner, or, for that matter, any person not an abutting owner, who, by any act or omission, causes a' dangerous condition in a city street is liable only upon the principles of common-law negligence. The city is liable for damages only upon the statutory ground of knowingly causing *104or maintaining a nuisance, and such statutory duty gives rise to liability without the necessity for proof of some of the essential elements of common-law negligence. The liability of the city is only characterized as negligence in a legal sense, because negligence in its broadest significance includes any omission of a duty imposed by law.

Though the plaintiff in this controversy might have a cause of action against both the city and Bar-dons & Oliver, the grounds of action would be essentially different and separate, and based upon different allegations of fact and different principles of law. The authorities already referred to establish the proposition that there can be no joint action unless there is joint liability and joint liability can only exist where there is concert of action in pursuit of a common intent. Where separate tortious acts have been separately done, and only a single injury inflicted, the parties must be sued separately. If Bardons & Oliver have committed any tort, it consists in a want of ordinary care in the installation or maintenance of its pipes, or in some possible active and overt act resulting in escaping steam at the place where plaintiff received his injuries. The. city’s tort, if any, is in failing to discharge a duty imposed by Section 3714, General Code. The abutting property owner, in his relation to the streets and sidewalks, only owes the duty not to create a dangerous situation. The city owes the duty not to knowingly permit one to exist, whether it be caused by its own agents and servants or by other persons.

We are not advised of the allegations of the petition filed by plaintiff against Bardons & Oliver, nor of the particular grounds upon which a recovery was *105sought, nor of the theory upon which plaintiff was proceeding in first pursuing that firm, but it is absolutely certain that it was a negligence suit, and it will be presumed that the petition stated a good cause of action, and by reason of that suit having been “dismissed and settled at defendant’s costs” it will further be presumed, in the absence of a contrary showing in this record, that the basis of the action was common-law negligence and that the allegations of the petition were true and that plaintiff was entitled to recover from that firm on that ground. Any other rule would be fraught with grave possibility of danger of injustice to a city. If the real wrongdoer may settle for a nominal sum and leave the injured party free to pursue the city and throw the entire burden upon the city to make a defense of facts of which it had no knowledge or means of knowledge, but which lie within the sole knowledge of the real wrongdoer, the city would become an insurer, and its liability would in practice extend far beyond any reasonable construction of the statute. It is to guard against just such a situation that our courts have indicated that a municipality may recover over from any party who has caused the situation resulting in a successful suit against the city. Such right of recovery has been recognized in *City of Zanesville*v. *Fannan,*53 Ohio St., 605, and in *Morris*v. *Woodburn, supra,*which latter case cites *City of Chicago*v. *Robbins,*2 Black, 418, *City of Chicago*v. *Robbins,*4 Wall., 657, and *City of Rochester*v. *Campbell,*123 N. Y., 405.

If in the instant case there had been in fact an open excavation, of which the city had notice, there would be a strict similarity to the facts of *Morris*v. *106*Wood,bum.*And if we follow and apply the principle therein declared, as well as in the case of *Zanesville*v. *Fannan,*the city of Cleveland in the event of a recovery against it wonld have had a right to proceed against Bardons & Oliver for indemnity. In snch event the covenant not to sne would become a farce and the settlement wonld only aid in a recovery against the city, the burden of which would eventually have to be met by Bardons & Oliver, notwithstanding the covenant designed for their protection and for which they had paid a substantial sum of money. Plaintiff could thereby accomplish indirectly and unjustly that which he could not in justice and good morals and in accordance with sound public policy accomplish directly. By reason of the liability of Bardons *&*Oliver being only concurrent and related, and not joint, and by reason of that firm being liable to indemnify the city for any judgment which might be obtained against the city, the covenant not to sue could only be of any value to Bardons & Oliver upon the theory that it was also a complete release of any claim against the city itself.

We therefore hold that both lower courts correctly determined both questions and that the judgment of the court of appeals should be affirmed.

*Judgment affirmed.*

Hough, Robinson, Jones and Matthias, JJ., concur.

Wanamaker, J., dissents.

Clark, J., took no part in the consideration or decision of the case.