Summary
In Stewart v. State Highway Comm., 166 Miss. 43, 148 So. 218, it was held that, "General statutory authorization to sue governmental subdivision or agency does not create liability, and suit is maintainable thereunder only for liability authorized by statute;" that "General statutory authority to sue State Highway Commission held not to impose liability for negligence of its officers, agents, or employees."
Summary of this case from Wunderlich v. State Hwy. CommOpinion
No. 30634.
May 15, 1933.
1. STATES.
General statutory authorization to sue governmental subdivision or agency does not create liability, and suit is maintainable thereunder only for liability authorized by statute (Code 1930, section 5006(c)).
2. STATES.
General statutory authority to sue highway commission held not to impose liability for negligence of its officers, agents, or employees.
APPEAL from Circuit Court of Covington County.
W.U. Corley, of Collins, for appellant.
The State Highway Commission is a body corporate.
The State Highway Commission authorized to make and publish rules, regulations and ordinances for the control of and to police the traffic on state highways, and to prevent their abuse, and to provide for the enforcement of these rules and regulations, etc. para. (b), section 5006, Code of 1930. The State Highway Commission not excepted from section 3588, Code of 1930.
The State Highway Commission is a corporation, clothed with the power to own property, to have offices, agents, and employees, to make contracts, etc., and last but not least to sue and be sued, plead and be impleaded, without any exceptions.
This quasi-corporation is liable for tort.
Covington County v. Watts, 82 So. 309; Crenshaw v. Panola County, 115 Miss. 905.
Hauling of dirt and trash is for the use and advantage of the city in its corporate capacity, is a corporate duty, and the city is liable for all damages done by any officer or agent so employed.
Pass Christian v. Fernandez, 100 Miss. 76.
It was immaterial in what capacity it acted in running over the man, it was not immune from suit, if by its negligence or carelessness, or inefficiency of its agents and employees it violated a right of a citizen.
Where the Wyoming Legislature created a state commission with authority to sue and be sued, the state as to suits against such commission waives its immunity from suit.
Utah Construction Co. v. State Highway Commission, 16 F.2d 322.
The suit is in reality not against the state. Plaintiff seeks no relief against it, nor interfere with its property, rights or functions. The commission is the defendant, it has no property, no power of taxation, no means of discharging a judgment should one be recovered against it. There can be no doubt the commission is suable as such.
Utah Construction Co. v. State Highway Commission, 23 Fed. 638.
If the cause of action arose from the exercise by the commission of one of the public functions, then the commission would be in the place of the state; but when the cause of action arose from the exercise by the commission of one of the ordinary business affairs it was authorized to conduct then it was subject to suit.
Standard Oil Co. v. United States, 25 Fed. 484; Hopkins v. Clemson College, 221 U.S. 646, 55 L.Ed. 890; Mississippi Railroad Commission v. Illinois Railroad Company, 51 L.Ed. 213.
E.R. Holmes, Jr., Assistant Attorney-General, for the appellee.
Section 5006, par. C., authorizing the highway department to sue and be sued, is limited to such cases as were actually designated in chapter 122, Code of 1930, on the highway department, or such cases as arose therefrom by necessary implication.
Gully v. State Highway Commission, 145 So. 351, section 5006, par. C.: Board of Improvement v. Moreland, 94 Ark. 380; Wood v. Drainage District, etc., 110 Ark. 416.
A county highway commission being a governmental agency is not subject to action in tort.
Smith v. State of New York, 13 A.L.R. 1264.
The highway commission is an agent of the state and a part of the state, and, therefore, is not liable in this section.
Carpenter v. Railroad Co., 114 S.E. 693; Sherman v. Gage, 279 S.W. 508.
Although the statute creating the Mississippi State Highway Commission may have said that the commission may sue and be sued, yet, even then, a suit against it for tort cannot be sustained.
36 Cyc. 882; Gibbons v. U.S., 19 L.Ed. 453; Chapman v. State, 38 P. 475; Melvin v. State, 53 P. 416; Cassidy v. St. Joseph, 152 S.C. 306.
The government does not undertake to guarantee to any person the fidelity of any of its officers or agents whom it employs, since that would involve it, in all of its operations, in endless embarrassments and difficulties and losses which would be submersive to public interests.
Story on Agency (9 Ed.), section 319.
No government has even held itself liable to individuals for malfeasance, laches or unauthorized exercise of powers of its officers or agents.
Gibbons v. U.S., 19 L.Ed. 453.
A municipal corporation is not liable for the negligence of its agents or employees while they are engaged in the exercise of their governmental functions or duties.
Cassidy v. St. Joseph, 247 Mo. 197, 152 S.W. 306.
Bodies charged with the construction of state roads created by the Legislature of other states have been held to be agencies of the state, government, and, therefore, not liable to damage suits arising out of the actions of their officers or agents.
Latham v. State Highway Commission, 131 S.E. 386; State to use to Watkins v. State Road Commission, 95 A. 956; Carpenter v. Railroad Co., 114 S.E. 693; Latham v. State Highway Comm., 131 S.E. 385; Looney v. Stryker, 249 P. 112; Sherman v. Gage, 279 S.W. 508; Sigwalk v. State, 208 N.W. 162.
A county is not liable in damages for injuries to persons traveling over the county highways, suffered in consequence of failure to properly repair a county bridge.
Brabham v. Hinds County, 54 Miss. 363.
Neither the state nor any of its subdivisions or governmental agencies can be sued for tort without express constitutional or statutory authorization.
Strickfaden v. Greencreek Highway District, 49 A.L.R. 1057; State ex rel. McKinley Pub. Co. v. Hackman, 282 S.W. 1007.
As a general principle of law the state is not liable for the torts of its officers, agents or servants, and it will only be liable upon its clear and definite consent.
Sandel v. State, 104 S.E. 567; 13 A.L.R. 1268.
The immunity of the sovereign extends to all public bodies created by law and charged with the exercise or performance of governmental duties.
Story on Agency (9 Ed.), section 319; Cassidy v. St. Joseph, 247 Mo. 197, 152 S.W. 306; Rauschan v. Gilbert, 253 P. 175 (Cal. 1927); Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N.E. 854; Minear v. State Board of Agriculture, 259 Ill. 349, 102 N.E. 1082; Morrison v. McLauren, 152 N.W. 478.
The Mississippi State Highway Commission is in fact a governmental agency.
Chapter 122 of the Code of 1930.
The Arkansas State Highway Commission cannot be sued for damages, resulting from the negligence of its employees when engaged in the construction or repair of state highways.
Baer v. Arkansas State Highway Commission, 47 Ark. Law Reporter, 848.
A public board or commission, given power to sue and be sued, is not liable in tort for the negligent act of its agents or employees.
Stephens v. Commissioners of Palisades Inter-state Park, 108 A. 645; Freeholders v. Strader, 18 N.J. 108, 35 Am. Dec. 530.
Argued orally by W.U. Corley, for appellant, and by E.R. Holmes, Jr., for the state.
The appellant instituted this suit against the appellee state highway commission and R.B. Knight, an employee of the appellee commission, seeking to recover damages for personal injuries sustained in an automobile collision alleged to have been caused by the negligence of the said employee of the appellee. To the declaration, the state highway commission demurred on the ground that, "being an arm or branch of the state government, it is not liable for the negligent or tortious acts of its officers, agents and employees." This demurrer was sustained, and, from a final order dismissing the suit as to the highway commission, this appeal was prosecuted.
The acts of the Legislature creating the state highway department, and prescribing the qualifications, duties, and liabilities of the state highway commission created thereby, appear as chapter 122, Code of 1930 (sections 4989 to 5021 inclusive). The powers granted to the commission are set forth in section 5006, Code of 1930, sub-section (c) of which provides that it shall have the power "to enforce by mandamus, or other proper legal remedies, all legal rights or rights of action of the state highway commission with other public bodies, corporations, or persons, and the state highway commission shall be a body corporate, and as such may sue and be sued, plead and be impleaded, in any court of justice having jurisdiction of the subject-matter of any such suit."
In the case of State Highway Commission v. Gulley (Miss.), 145 So. 351, in construing this section, it was held that a general statutory grant of authority to sue a governmental subdivision or agency does not create any liability, and suit may be maintained thereunder only for such liability as is authorized by statute; and that the provision of said section 5006 that the state highway commission, an agency of the state, may sue and be sued, does not create any liability or authorize suit against it for any liability not authorized by statute, either expressly or by necessary implication.
The case of Stephens v. Beaver Dam Drainage District, 123 Miss. 884, 86 So. 641, was an action of tort against a drainage district organized under chapter 195, Laws of 1912, as amended by chapter 269, Laws of 1914. These acts contained the general provision that districts organized thereunder should, in their corporate name, have power to sue and be sued, but it was held that the district was not liable for the negligence of its agents, or employees, the court saying that, "in the absence of a valid statute imposing liability therefor, a public corporation created in invitum for the purpose of discharging a public function is not liable for the negligence of its officers, agents, or employees."
In the case of Dick v. Drainage Levee District, 147 Miss. 783, 113 So. 897, which was a suit against a drainage district organized under said chapter 269, Laws of 1914, it was again held that "a public corporation, created in invitum for the purpose of discharging a public function, is liable only for the authorized acts of its officers and agents, in the absence of a statute otherwise providing." To the same effect is the case of Nugent v. Board of Mississippi Levee Commissioners, 58 Miss. 197. Upon the question presented by this appeal, these cases are controlling. It clearly appears that the general statutory grant of authority to sue the appellee commission does not impose liability for the negligence of its officers, agents, or employees, and there is no other statute imposing such liability. The judgment of the court below will therefore be affirmed.
Affirmed.