
    Farkas v. Fulton, Supt. of Banks.
    (Decided December 17, 1934.)
    
      Mrs. Eva Eppstein Shaw, for plaintiff in error.
    
      
      Mr. John W. Bricker, attorney general, Mr. Maurice J. Meyer, Messrs. Doyle & Lewis, Mr. Milo J. Warner and Mr. Wm. G. Moore, for defendant in error.
   Overmyer, J.

The plaintiff in error, Lizzie Farkas, was plaintiff below, and Ira J. Fnlton, Superintendent of Banks, was defendant, and the case is here on error from the judgment of the Court of Common Pleas in sustaining a demurrer to the petition.

The action was brought by the plaintiff against Ira J. Fulton, Superintendent of Banks of the state of Ohio, claiming damages for expenses incurred for medical care and hospitalization for her minor son who was alleged to have been injured by an employee of the defendant while said employee was operating his automobile on business of the defendant, Ira J. Fulton, Superintendent of Banks, in connection with the liquidation of the Ohio Savings Bank & Trust Company in the city of Toledo.

The question presented to this court, therefore, is whether the Court of Common Pleas was correct in holding that the petition does not state a cause of action against the defendant, Ira J. Fulton, Superintendent of Banks, and in support of the ruling of the lower court defendant in error presents two grounds for our consideration, viz:

1. That no action lies against tht Superintendent of Banks, either individually or in his official capacity, for alleged negligence on the part of his employee, for the reason that such action in effect is one against the state of Ohio and therefore not maintainable in the courts of the state, and

2. That under Sections 710-90 and 710-92, General Code, a showing that a claim has been presented to the Superintendent of Banks and by him rejected is a condition precedent to the bringing of an action against the Superintendent of Banks.

Counsel for both parties state that the precise question here presented has not been before the courts of this state, but we find that the general proposition that no action may be maintained against the state itself, or against officers of the state, by reason of negligent acts committed by their employees in connection with the state government, or the performance of their official duties, is sustained by an abundance of authorities.

The question whether the Superintendent of Banks is an officer and agent of the state has already been answered in the affirmative by the Court of Appeals of this district in Snider, Exrx., v. Fulton, Supt. of Banks, 44 Ohio App., 238, 184 N. E., 839, decided December 19, 1932. Motion to certify was overruled by the Supreme Court on March 1, 1933, and motion for rehearing denied March 8, 1933. In the opinion by Richards, J., it is said:

“The state superintendent of banks is an official of the state and takes possession of a bank for purpose of liquidation on behalf of the state. It is said in Bennett v. Green, 156 Gra., 572, 579, 119 S. E., 620: ‘The superintendent of banks, in taking charge of the affairs of an insolvent bank for liquidation, is the agent of the State. He acts for and in behalf of the commonwealth. His possession is that of the State, who is his principal.’ ”

In Wolfe v. Fulton, Supt. of Banks, 30 N. P. (N. S.), 238, affirmed by the Court of Appeals, January 6, 1933, it is said:

“When the state banking official takes over a bank he does so under the police power and in the interest of public welfare. * * * He is not a receiver, is not appointed by the court, and receives compensation from the state. We can not discharge him.”

It is true, of course, as urged upon us by counsel for plaintiff in error, that the Superintendent of Banks would be liable for rents, lighting, phones, and other incidental expenses incurred in connection with the process of liquidation of a bank, but the question here presented is quite another matter. The question here is :Ts he liable in his official capacity for a tort alleged to have been committed by one of his employees? The items mentioned are necessary incidents in the matter of liquidating and winding up the affairs of a bank, but the commission of torts by his employees while engaged in such liquidation is neither an anticipated nor a necessary incident to the liquidation of the bank. If he were liable for these, it could easily follow that the entire assets of the closed bank might be dissipated in contesting claims for damages arising as a result of careless and inexperienced employees, and the depositors of the bank receive nothing but receipts for damages paid for personal injuries and property damage to third persons.

“A general statute authorizing suits against the state does not permit a recovery for torts of its agents or servants.” 13 A. L. R., 1276, and cases there cited.

In State v. Hill, 54 Ala., 67, the state was held not liable for stock killed by the tortious acts of the agents of the state in operating a railroad. “The State, in the absence of express legislation authorizing it, can not be held answerable, in its courts, for the tortious acts or conduct of the officers or agents it employs in the administration of public affairs.”

“Even when by constitutional provision or legislative enactment the state has permitted itself to be sued, the mere fact of permitting the suit against itself does not render the State liable for the careless or negligent acts of its servants, employes or agents, in the absence of any statute expressly fixing such liability upon the state.” Davis v. State, 30 Idaho, 137, 163 P., 373.

In Burroughs v. Commonwealth, 224 Mass., 28, 112 N. E., 491, Ann. Cas., 1917A, 38, it was held that such a statute does not make the commonwealth liable for the negligence of its forestry servants in setting fires, or permitting them to escape.

We hold that the Superintendent of Banks is a state official, an arm of the state government, vested with such authority and powers and duties as are expressly granted him by the statutes of Ohio, drawing his compensation from the state, and answerable to no one but the state in the discharge of his official duties, and that unless consent be given he cannot be sued, especially not in tort. In Raudabaugh v. State, 96 Ohio St., 513, 118 N. E., 102, the court decided that Section 16, Article I of the Ohio Constitution, providing for suits against the state, is not self-executing, and specific authority to bring and maintain such action must be found in the acts of the Legislature. Has the state of Ohio granted authority for litigants to prosecute actions of the character here attempted?

The only sections cited on that subject are Sections 710-90 and 710-92, General Code, which provide for the filing of claims with the Superintendent of Banks in charge of the liquidation of a bank, and his allowance or rejection thereof, but counsel for both parties in their briefs state that these sections refer only to claims against the bank, in existence at the time of closing, and growing out of the banking business which had been conducted by the bank, and that a claim such as this, for a tort alleged to have been committed by one of his employees some months after the Superintendent of Banks took charge, would not come within these sections. With this view, we agree.

For the foregoing reasons, and on the authorities cited, we are of the opinion that the judgment of the court below in sustaining the demurrer to the petition was correct, and the judgment will be affirmed.

Judgment affirmed.

Lloyd, J., concurs.

Richards, J., not participating.  