
    Board of Trustees of Combined Normal and Industrial Department of Wilberforce University v. Green et al.
    
      Negligence — Action does not lie against state — Wilberforce University Combined Normal and Industrial Department— Property not controlled jointly by University — Liability for injuries from acts of state employe.
    
    (No. 18790
    Decided June 2, 1925.)
    Error to the Court of Appeals of Greene county.
    This action in the court below was one for damages by Grace Green against the state of Ohio and Wilberforce University.
    Wilberforce University is a private university established for colored students, owning its own real estate and personal property. A normal and industrial department at the University of Wilberforce has been established by the state, which operates various state buildings constructed on land owned by the state of Ohio.
    The case arises out of a personal injury sustained by the plaintiff, Grace Green, in February, 1921, upon grounds belonging to the state of Ohio and used by the Normal and Industrial Department of the University of Wilberforce. The injury arose out of the following facts, which appear in the record:
    On the evening in question a basket ball game was to be played in the gymnasium building, erected by state funds upon state land, and used by the Combined Normal and Industrial Department of Wilberforce University. The game was open to the public. The lights in the gymnasium failed to come on that evening, because, as the record shows-, “the line was burned in two.” Meanwhile, people who wished to attend the game gathered in front of the gymnasium. Upon the cement walk which leads up to the front door of the gymnasium there is a manhole, which connects with the electric light system for the buildings. The engineer of the Industrial and Normal Department, Newsom, when the lights failed to come on, lifted the lid of the manhole, and went down into the manhole to see what was the matter with the lights. He failed to replace the cover upon the manhole, and, shortly thereafter, the plaintiff tripped upon a chain attached to the cover of the manhole and fell, receiving serious injury. The engineer is the employe of the Combined Normal and Industrial Department, and is paid out of state funds.
    
      Colleges and Universities, 11 C. J. §§ 2, 46.
    
      A demurrer was filed by Wilberforce University, alleging, among other things, a defect of parties defendant, and the court sustained the demurrer upon that ground, ordering that the Board of Trustees of the Combined Normal and Industrial Department of Wilberforce University be made a party defendant. This was done, and process was duly served on each of the members of that board.
    A motion to quash the service of summons on the Board of Trustees of the Combined Normal and Industrial Department, without intending to enter appearance, was made by the board, and overruled by the court. Upon leave of court, the Board o-f Trustees of the Combined Normal and Industrial Department thereafter filed a demurrer upon the following grounds:
    “(1) The court has not jurisdiction of the person of the defendant. (2) There is misjoinder of parties defendant. (3) The petition does not state facts which show a cause of action against this defendant.”
    . This demurrer was overruled by the court, to which defendant excepted. Thereupon defendant, the Board of Trustees of the Combined Normal and Industrial Department, filed its answer. The case was then submitted to the jury, which returned a verdict jointly against the Board of Trustees of the Combined Normal and Industrial Department of Wilberforce University, and Wilberforce University, in the sum of $5,000. The Court of Appeals affirmed the judgment below. This case comes into this court upon motion to certify the record, upon the filing of a petition in error by the Board of Trustees of the Combined Normal and Industrial Department of Wilberforce University, a petition in error having been filed by Wilberforce University in the companion case No. 18786.
    
      Mr. G. iCL Crabbe, attorney general, and Mr. Arthur Wicks, for plaintiff in error.
    
      Mr. Chas. L. Darlington, and Mr. C. II. Kyle, for defendants in error.
   By the Court.

The Court of Appeals affirmed the judgment in favor of the plaintiff, rendered upon the verdict in the court of common pleas, upon the ground that the property at the location of the manhole was under the joint control of the University of "Wilberforce, and the Board of Trustees of the Combined Normal and Industrial Department of the said university.

The Clombined Normal and Industrial Department of Wilberforce University was created by an act of the General Assembly in Sections 7975 to 7986-1, inclusive, General Code. Under these sections, five members of the board of trustees of the department are appointed by the Governor of Ohio, by and with the advice and consent of the Senate. The president of Wilberforce University is ex officio a member of the board of trustees, and three members of the board are appointed by the board of trustees of Wilberforce University. Wilberforce University existed and functioned as a private institution prior to the creation of the Combined Normal and Industrial Department. The Normal and Industrial Department is maintained by appropriations made by the General Assembly, the appropriation for the last biennium having been in the amount of $374,271. The employes of the department are paid by the state upon the voucher of the auditor of state, which is based upon a payroll prepared by the superintendent of the combined normal and industrial department. Under the statute, the selection of a superintendent for the department by the board of trustees is subject to the approval of the state controlling board, and no contract, claim, or voucher drawn against any appropriation is valid until the superintendent so selected has approved the same in writing.

The normal and industrial department carries on its educational work upon land owned by the state, upon which a number of buildings have been built by the state for this purpose, and it was upon this land that the accident in question occurred.

Defendants in error contend that the University of Wilberforce had joint control with the Combined Normal and Industrial Department over the electric light plant and the gymnasium, and over the employe who negligently lifted the cover off of the manhole. These three facts were specifically found by the jury in their answers to three interrogatories, as follows:

11 (1) Was the electric plant and system owned, operated or controlled by the Wilberforce University? Answer: Yes.
“(2) Were the employes who removed the cover from the manhole, made the repairs, and left the manhole uncovered or unguarded employes of Wilberforce University? Answer: Yes.
“(3) Were any of the employes of whose negligence the plaintiff complains at any time under the direction or control of Wilberforce University? Answer: Yes.”

Plaintiff in error, on the contrary, maintains that there is no evidence in the record whatever tending to show that the University had joint control or any control over the electric light plant, the gymnasium building, or the employe Newsom.

With the last contention we are in accord. The act was done upon real property owned by the state. It was done with reference to turning on lights in a building owned by the state. It was done by a man paid entirely by the state, and subject to the control of a board of trustees created and maintained by state statute. The mere fact that Wilberforce University appoints three only of the trustees of the board, and that the president of Wilberforce University is an ex officio member thereof, does not give Wilberforce University control of the board, which numbers nine members. As constituted, the board of trustees of the department is a separate entity, established by the state, with entire control of the buildings and land used by the department, and of the functioning of the department. The record contains no evidence which indicates joint control, and hence there cannot be joint liability. Moreover the action against the Combined Normal and Industrial Department 'of Wilberforce University cannot be maintained, for it is an action against the state.

Judgment reversed.

Marshall, C. J., Jones, Matthias, Allen, Kink atve and Robinson, JJ., concur.  