dissenting in case No. 38459. The General Assembly has given municipalities permission to own, operate and maintain municipal hospitals. Section 715.37, Revised Code. There is, however, no duty imposed upon them to do so.
*160The General Assembly was empowered, bad it deemed it wise to do so, to impose duties and responsibilities upon municipal hospitals thus making them arms or agencies of the state government.
City of Cincinnati v. Gamble et al., Board of Trustees of Retirement System of City of Cincinnati, 138 Ohio St. 220, in the third paragraph of the syllabus says:
“In matters of state-wide concern the state is supreme over its municipalities and may in the exercise of its sovereignty impose duties and responsibilities upon them as arms or agencies of the state.” (Emphasis added.)
But the General Assembly did not call upon this hospital to perform any functions of state government. It is difficult to understand how a municipal hospital can claim governmental immunity when it performs no services in the exercise of state sovereignty.
A proprietary function was defined, as follows, by Chief Justice Marshall in City of Wooster v. Arbenz (1927), 116 Ohio St. 281, 284:
“If * * # there is no obligation on the part of a municipality to perform * * * [a given function] and the city has an election whether to do or omit to do those acts, the function is private and proprietary.”
The decisions of all our sister states on the subject are collected in 11A Hospital Law Manual, 23 to 72, Immunity of Governmental Hospitals. Forty-five states besides Ohio have municipal hospitals. A perusal of those decisions supports the following breakdown: Nine states deny recovery; some form of recovery is possible in 21 states; and 15 states do not have any reported cases. In those nine states that deny recovery, eight states have done so by judicial decision, five of which were handed down from 27 to 63 years ago.
I can conclude only that the weight of authority and the modern view are that a hospital established under a permissive statute by a municipality is engaged in a proprietary function and is liable for its tortious conduct.
Matthias and SchNeider, JJ., concur in the foregoing opinion by Herbert, J.