Dean v. Board of Trustees of Soldiers & Sailors Memorial Bldg.

• Decision Date: 12 September 1940
• Parties: DEAN v. BOARD OF TRUSTEES OF SOLDIERS & SAILORS MEMORIAL BLDG. et al.
• Court: Ohio Court of Appeals

29 N.E.2d 910

65 Ohio App. 362

DEAN v. BOARD OF TRUSTEES OF SOLDIERS & SAILORS MEMORIAL BLDG. et al.

Court of Appeals of Ohio, Fifth District, Licking.

September 12, 1940

Syllabus by the Court.

When a township memorial building erected under the provisions of Section 3410-1 et seq., General Code, and controlled by a board of trustees authorized by Section 3410-9a et seq General Code, is leased in part for commercial purposes in competition with other business properties, the controlling authorities are acting in a proprietary and not governmental capacity, and are liable in damages to one injured by the negligent maintenance or operation of the building.

Yearick & Hughes, of Newark, for appellant.

Fitzgibbon Black & Fitzgibbon and Kenneth Kreider, Pros. Atty., all of Newark, for appellees.

MONTGOMERY Judge.

The plaintiff, Flora Dean, by her second amended petition filed in the Court of Common Pleas sought to recover damages from the defendant jointly, for injuries alleged to have been sustained by her when she entered into the building in question through a public entrance thereto, viz., a certain storm door and vestibule, and then, within the vestibule opened another door which had no sign upon it and plunged down a flight of stone steps to the basement of the building. The specifications of negligence alleged against the defendants may be stated generally as failure to light that part of the building or stairway, or to protect the same by guards or locks, or to designate the place to which the door opened.

The defendants demurred to the second amended petition. They raise no question about the propriety of the joinder of the defendants, or of their possible joint liability. They raise no question about the existence of a cause of action under the state of facts which we have here epitomized. They demurred solely upon the ground that the defendants were engaged in a governmental, as distinguished from a proprietary, function in the maintenance and operation of that building, and that is the sole question presented by counsel on both sides for our consideration, or of which our determination is asked.

The second amended petition recites that the Board of Trustees of the Soldiers and Sailors Memorial Building of Newark township is charged with the maintenance, management and control of the building known as the Auditorium Theater and Memorial Building in the city of Newark, Ohio, and in that capacity is the agent of the other defendant, the Board of Trustees of Newark township, Licking county, Ohio. It is further averred that the trustees leased a large part of this building for use as a motion picture theater, receiving rent therefor, and also leased storerooms and office space in the building to private individuals, deriving a large revenue from such rentals.

The appointment of a board of trustees for the management of such building is authorized by Sections 3410-9a, 3410-10 and 3410-11, General Code. The concluding sentence in Section 3410-10, General Code, is: 'The memorial trustees may permit the occupancy and use of the memorial building or any part thereof, upon such terms as they deem proper.'

The question, therefore, is squarely presented for us to determine whether the functions performed are governmental or proprietary. Following the argument of Judge Lieghley in the case of City of Cleveland v. Walker, Adm'x, 52 Ohio App. 477, 481, 3 N.E.2d 990, it may be stated that the change from a governmental to a proprietary function occurs when the operation of the property is commercial.

Probably the leading case in Ohio upon this proposition is that of the City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, 52 A.L.R. 518, and we direct attention to certain portions of the opinion of Chief Justice Marshall, as the same appears on pages 284 and 285 of 116 Ohio St. 156 N.E. on page 211, 52 A.L.R. 518:

'The court is equally committed to the doctrine that if the function being exercised is proprietary and in pursuit of private and corporate duties, for the particular benefit of the corporation and its inhabitants, as distinguished from those things in which the whole state has an interest, the city is liable. * * * If, on the other hand there is no obligation on the part of the municipality to perform them, but it does in fact do so for the...