Board of Education v. McHenry , 106 Ohio St. (N.S.) 357 ( 1922 )

By the Court-

This action was brought to recover damages claimed to have been sustained by a pupil in the public schools of the city of Cincinnati from the extraction of a tooth by a dentist, in the employment of the board of education of the city of Cincinnati, to whom the principal of one of the public schools of the city required the pupil to submit himself for examination and treatment without the consent or knowledge of his parents.

The petition averred “that said dentist, or pretended dentist, who was in the employ of defendant and authorized by defendant to operate upon said William McHenry, Jr., was negligent in fracturing the jaw bone of said William McHenry, Jr.; that said dentist, or pretended dentist, was incompetent to operate * * * and that he was incompetent to determine whether or not the jaw bone of his patient had been fractured or to treat the same if fractured, and that defendant was negligent in employing for such work an unfit and incompetent person.”

The court of common pleas sustained a demurrer to the petition, and upon proceeding in error that judgment was reversed by the court of appeals. Thereupon error was prosecuted to this court.

It was conceded by counsel for defendant in error, upon the argument in this court, that unless the recent decision of the supreme court of Ohio, in Fowler, Admx., v. City of Cleveland, 100 Ohio St., 158, changes the rule of law prevailing in this state prior to such decision, no recovery can be had in this cause against the board of education, and the action of the court of appeals was based upon the decision of this court in that case.

The decision of this court in the case of Aldrich v. City of Youngstown, ante, 342, wherein the decision in the Fowler case, supra, was overruled, requires in the instant case a reversal of the judgment of the court of appeals and an affirmance of that of the court of common pleas.

Judgment reversed.

Marshall, C. J., Hough, Robinson, Jones, Matthias and Clark, JJ., concur.