State v. Morgan, 1933-8050.
| Decision Date | 31 March 1943 |
| Docket Number | No. 1933-8050.,1933-8050. |
| Citation | 170 S.W.2d 652 |
| Parties | STATE et al. v. MORGAN. |
| Court | Texas Supreme Court |
This suit was filed by James I. Morgan pursuant to legislative permission against the State of Texas and the State Agricultural Experimental Stations of Texas A. & M. College, and other defendants not necessary to name, to recover damages for personal injuries sustained while working for the experimental station at Amelia, Texas. The trial court sustained a general demurrer to the petition and entered judgment for the state. The El Paso Court of Civil Appeals, the case having been transferred to that court from the Austin Court of Civil Appeals, reversed the judgment of the trial court dismissing the case, and remanded the cause for trial on the merits. 170 S.W.2d 648.
Plaintiff alleged that in July, 1940, he was employed by the state acting through R. H. Wyche, superintendent of the experiment station at Amelia, for an agreed salary of $50 a month. He appears to give particular significance to the allegation that he was employed by contract (verbal). He alleged that by virtue of the contract of employment made with Wyche the state impliedly and as a matter of law agreed to use ordinary care to furnish him with reasonably safe instrumentalities with which to perform his work and a reasonably safe place in which to work; that the state acting through Wyche breached the agreement and delivered to him a defective pump with which to spray one of the buildings of the station; and that he, while in the performance of the assigned task in a proper manner sustained the injuries complained of.
It appears to be plaintiff's view that his relation to the state being contractual and the relation of master and servant having thereby arisen, its failure to use ordinary care to furnish him a reasonably safe pump with which to perform the work assigned, constituted a breach of contract whereby the state became liable to him in the same manner that an individual employer would have become liable under similar circumstances. He alleged that his injuries and the damage sustained therefrom were a direct and proximate result of the negligent breach of his alleged contract of employment. The Court of Civil Appeals concedes that the state in conducting through A. & M. College its experimental stations, was acting in a governmental capacity as distinguished from a proprietary capacity.
Plaintiff's points are discussed under two groups, the first of which relates to his proposition that, though the state was not liable for his negligent injury as a pure tort, regardless of whether the tortious act grew out of the performance of a governmental or a proprietary function, it was legally responsible for its contract, and, as a necessary consequence was liable for its negligent breach. The remaining points relate to plaintiff's second proposition that the petition alleged a cause of action against the state under a "pre-existing law" (the common law in force), within the meaning of the constitution; and that under the alleged facts an implied contract arose under the constitution upon which the state was liable for the breach of the same as an individual employer would be.
The attorney general on behalf of the state and the other relators grounded the application for writ of error upon two points: (1) That since relators were engaged in a governmental business at the time Morgan received his alleged injuries they were not liable therefor; (2) that since Morgan admitted that at the time he received his injuries the state was acting in a governmental capacity, respondent did not allege a cause of action against either the state or the college, there being no preexisting law whereby one of its agents was authorized to bind it in the particulars alleged by plaintiff. The writ was granted upon both propositions.
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