
    Partlow & Gates, a Partnership, v. Monroe Township, Miami County.
    (Decided November 27, 1932.)
    
      Mr. Paul T. Klapp, for plaintiff in error.
    
      Mr. L. E. Harvey, for defendant in error.
   Kunkle, J.

The plaintiff in error, Partlow & Gates, being plaintiff in the lower court, sought to recover a judgment in the sum of $3,100 against defendant in error, the defendant in lower court, on account of damages which plaintiff in error claims to have sustained to a pipe organ located in premises leased from defendant in error, which damages it is claimed resulted from water leaking through the roof of the premises. It is claimed that such damage resulted from the failure of defendant in error, to keep the roof on said building in proper repair.

To the amended petition of plaintiff in error, the defendant in error filed a demurrer, which demurrer was sustained by the lower court. The plaintiff in error not desiring to plead further the petition was dismissed, and error is now prosecuted to this court.

In brief, it appears from the amended petition that plaintiffs in error are a partnership; that they were operating a moving picture theater in Tippecanoe City in the auditorium of the Monroe township public building; that such building was under the control and management of the trustees of Monroe township, and was the property of the township, and was leased by such trustees to plaintiff in error; that plaintiff in error installed a valuable organ in said building, and that while plaintiff in error was occupying this auditorium a rain of not more than ordinary intensity fell; that the roof of this building leaked badly around the edges thereof, and because of the conduits for the water around the roof having become out of repair and stopped up the rain instead of running off ran through the roof of the building onto the organ of plaintiffs in error and damaged the same to the amount claimed in the amended petition. Plaintiffs in error claim that such damage was the direct result of the defendant in error allowing the roof of said building to get out of repair and clogged in the respects stated in more or less detail in the amended petition.

In support of the general demurrer to the amended petition it is urged that the defendant trustees in leasing the building to plaintiff in error acted solely in a governmental capacity, and that under the rules of law applicable to public officials no liability attaches while such officials are acting in their governmental capacity.

Section 3244, General Code, provides for the organization of a township as a body politic and corporate, which, as such, may sue and be sued. This section further provides that the trustees of the township shall hold all such property in trust for the township.

Section 3395, General Code, provides for the erection of township buildings.

It is urged by counsel for plaintiff in error that the defendant trustees were not exercising a governmental function, but that defendant trustees were attempting to secure revenue out of the said building, and that their acts should be characterized as ministerial rather than governmental.

Counsel for both plaintiff in error and defendant in error have favored the court with exhaustive briefs in which the pertinent decisions of our courts are cited and commented upon. We shall not attempt to discuss all these authorities in detail.

We are of opinion that the decision of our Supreme Court in the case of Bell v. City of Cincinnati, 80 Ohio St., 1, 88 N. E., 128, 23 L. R. A. (N. S.), 910, is decisive of this question. Our Supreme Court in the case of Aldrich v. City of Youngstown, 106 Ohio St., 342, 140 N. E., 164, 27 A. L. R., 1497, in effect reannounces the principles decided in the Bell case and reverses several former decisions of that court. Judge Wanamaker, in the Aldrich case, has a very vigorous dissenting opinion, but the majority of the court held otherwise and the law in Ohio upon this general subject, until again changed, is. as announced in those decisions.

We . cannot escape the conclusion that the reasoning found in these two decisions prevents a recovery by plaintiff in error. The first paragraph of the syllabus in Bell v. City of Cincinnati, supra, is as follows:

“By paragraph twenty (20) of Section 1536-100, Revised Statutes (Section 7, Municipal Code), a municipal corporation is authorized to establish, maintain and regulate a workhouse therein; and by Section 1536-677, Revised Statutes (Section 141, Municipal Code), the directors of public service are invested with the management and control of such workhouse in behalf of the corporation, and in so managing and controlling said workhouse, the municipal corporation, through its directors of public service, acts in a governmental capacity, and not in a proprietary or business relation to the inmates or persons in its employ.”

The first paragraph of the syllabus in Aldrich v. City of Youngstown, supra, is as follows:

“The creation and maintenance of a police department by a municipality are done in the exercise of its governmental functions. The performance of an act by an official of such department is not the performance of a ministerial, act for which a municipality becomes liable under the maxim, respondeat superior.”

It is claimed by counsel for defendant in error that the demurrer is also well taken because there is no averment in the petition to the effect that the trustees contracted to keep the premises in question in repair, and that in the absence of an express contract to that effect no recovery can be had for failing to keep the said premises in repair. It is averred in the petition that the defendant in error was in charge and control of the premises at all times, but we do not find any averment in the petition which would warrant the conclusion that the defendant trustees had expressly contracted to keep the premises in repair.

In the case of Goodall v. Deters, reported in 121 Ohio St., 432, 169 N. E., 443, our Supreme Court has stated the rule governing transactions of this nature, as follows:

‘ ‘ The owner of real property may lease the same in whatever condition it exists at the time of the lease. If the owner does not agree with the lessee to put the property in good repair or to keep it in good repair the lessee cannot recover from the owner damages for an injury sustained by the lessee due to the defective condition of the property.”

In view of the reasoning of our Supreme Court, found in the above-cited cases, we cannot escape the conclusion that the demurrer was properly sustained.

The judgment of the lower court will be affirmed.

Judgment affirmed.

Allread, P. J., and Hornbeck, J., concur.  