Wolf v. Ohio State University Hospital, 35923

• Decision Date: 12 November 1959
• Docket Number: No. 35923,35923
• Citation: 170 Ohio St. 49,162 N.E.2d 475
• Parties: , 9 O.O.2d 416 WOLF, Appellant, v. OHIO STATE UNIVERSITY HOSPITAL et al., Appellees.
• Court: Ohio Supreme Court

Page 49

170 Ohio St. 49

162 N.E.2d 475, 9 O.O.2d 416

WOLF, Appellant, v. OHIO STATE UNIVERSITY HOSPITAL et al., Appellees.

No. 35923.

Supreme Court of Ohio.

Nov. 12, 1959.

Syllabus by the Court

1. Under the provisions of Section 16, Article I of the Constitution of Ohio, suits may be brought against the state in such courts and in such manner as may be provided by law.

2. These provisions of the Constitution of Ohio are not self-executing.

3. Under the provisions of Section 3335.03, Revised Code, the Board of Trustees of The Ohio State University is invested with the right of suing and being sued, and of contracting and being contracted with.

4. The Ohio State University and the Ohio State University Hospital are instrumentalities of the state of Ohio and as such are not suable in tort until the General Assembly of Ohio enacts a statute determining the courts and the manner in which such suits may be brought against the state.

5. Under the provisions of Section 3335.03, Revised Code, the General Assembly of Ohio has not authorized tort actions to be brought against the Board of Trustees of The Ohio State University.

In the Court of Common Pleas the plaintiff instituted this action against the defendants the Ohio State University Hospital and the Board of Trustees of The Ohio State University to recover damages for personal injuries allegedly sustained by her on October 12, 1956, while at the hospital. She says she was there at the request of the hospital because a child who was in her custody was to undergo an operation. While the plaintiff was waiting in a hall near the desk of the floor nurse, she punctured the palm of her right hand on a spindle on the nurse's desk. The plaintiff was directed to the hospital's emergency room where over her protest she was administered tetanus antitoxin although a test disclosed that she was allergic thereto. She alleges that as a result of the defendants' carelessness she developed a violent reaction and various injuries.

To the plaintiff's petition the defendant board of trustees filed a demurrer on the ground that the facts stated do not show a cause of action.

The Court of Common Pleas sustained the demurrer and dismissed the petition.

On an appeal to the Court of Appeals on questions of law, the judgment of the trial court was affirmed.

The cause is in this court for a review on an appeal as of right and by reason of the allowance of the plaintiff's motion to certify the record.

Lowman, Patterson, Pfefferle & Dunn and Reeves & Herron, Columbus, for appellant.

Mark McElroy, Atty. Gen., and C. V. Thomas, Columbus, for appellees.

WEYGANDT, Chief Justice.

The sole question of law here presented is whether these defendants, the Ohio State University Hospital and the board of trustees of the university, are suable in tort.

It is agreed that the Ohio State University is not a chartered corporation.

Further, it is agreed that the Ohio State University Hospital is not a separate entity but is operated by the board of trustees of the university.

The crux of this controversy is the significance of Section 3335.03, Revised Code, reading as follows:

'The trustees and their successors in office shall be styled the 'board of trustees of the Ohio state university,' with the right as such, of suing and being sued, of contracting and being contracted with, of making and using a common seal, and altering it at pleasure.'

Section 16, Article I of the Constitution of Ohio, reads in part:

'Suits may be brought against the state, in such courts and in such manner, as may be provided by law.'

Has the General Assembly expressly provided by law for suits in tort against the state or its instrumentalities such as the defendants in this action? The lower courts were unanimous in their view that the provisions of Section 3335.03, supra, are not susceptible of that construction.

Is this correct?

The above-quoted statute was enacted in the year 1870. The constitutional provision was not adopted until 1912. Hence, the statute obviously was not enacted pursuant to the constitutional provision, and, according to its own terms, the latter is not self-executing. Raudabaugh v. State, 96 Ohio St. 513, 118 N.E. 102.

In the syllabus in the case of Overholser v. National Home for Disabled Volunteer Soldiers, 68 Ohio St. 236, 67 N.E. 487, 62 L.R.A. 936, 96 Am.St.Rep. 658, this court held:

'1. The National Home for Disabled Volunteer Solidiers is a corporation created by Congress for the purpose of performing an appropriate and constitutional function of the federal government, and for national purposes only; and as such it is a part of the government of the United States, and cannot be sued in an action sounding in tort.

'2. The grant of power to sue and be sued at law and in equity applies to such matters only as are within the scope of the other corporate powers of the defendant, and it does not authorize such corporation to be sued for a tort.'

And in the opinion appears the following rationale by Davis, J.:

'* * * A suit against a public corporation having no other powers than the performance of a function of the government and accomplishing no other object, is plainly a suit against the government and its property, although nominally it is a suit against the corporation only. This principle was applied by this court in Finch v. Board of Education, 30 Ohio St. 37, 47, in which it was held that in the absence of a statute creating the liability, a board of education, which was incorporated by an act of the General Assembly, passed March 9, 1849, * * * was not liable in its corporate capacity for damages resulting from its negligence in erecting and maintaining a school building. It was held that the defendant was 'a public agent employed in administering the common school system of the state,' and that there is no principle of the common law by which the action could be supported. * * *

'* * * The United States has consented to be sued on its contracts, either in the Court of Claims, or in a circuit or district court of the United States, but it has not yet consented to be liable to actions for torts. Belknap v. Schild, 161 U.S. , 17, 16 S.Ct. 443, 40 L.Ed. 599. Therefore we are not persuaded by the argument that the power conferred upon this...