Board of Com'rs of Harmon County v. Keen

• Decision Date: 19 September 1944
• Docket Number: 31824.
• Citation: 153 P.2d 483,194 Okla. 593,1944 OK 243
• Parties: BOARD OF COM'RS OF HARMON COUNTY v. KEEN, District Judge, et al.
• Court: Oklahoma Supreme Court

153 P.2d 483

194 Okla. 593, 1944 OK 243

BOARD OF COM'RS OF HARMON COUNTY v. KEEN, District Judge, et al.

No. 31824.

Supreme Court of Oklahoma

September 19, 1944

Rehearing Denied Dec. 5, 1944.

Syllabus by the Court.

1. In the absence of a statute or constitutional provision creating liability therefor, a county is not liable for damages for injuries resulting from wrongful or negligent acts or omissions of its officers or employees in the performance of their public duties.

2. 85 O.S.1941 § 12 creates no cause of action for tort against a county for negligence of its officers and employees where the county is liable as an employer under the Workmen's Compensation Act, 85 O.S. 1941 § 3(3), and where it has failed to insure against liability or to take the necessary steps to carry its own insurance as required by 85 O.S.1941 § 149.

3. Where a county is sued for tort and it is clear that no cause of action exists or can be stated, and the District Court overrules the demurrer of the county to the petition, and no appeal lies from such order, and the order can only be reviewed on appeal by the county standing on the demurrer and refusing to plead further and suffering a default judgment to be taken against it or after a burdensome and expensive trial, requiring the expenditure of public funds, a part of which would not be taxable costs, and those that are taxable might not be recoverable, the remedy by appeal is not speedy and adequate, and it is proper for the Supreme Court, under its original jurisdiction to issue a writ of prohibition and under its power of superintending control as conferred by section 2 article 7 of the state constitution, to restrain by a writ of prohibition the further prosecution of the cause.

Original proceeding by the Board of County Commissioners of Harmon County, Oklahoma, against W. P. Keen, District Judge of the Second Judicial District of the State of Oklahoma, and R. H Bryant for a writ of prohibition to prevent further proceedings in an action for damages brought by R. H. Bryant against the county.

Writ of prohibition issued.

L. G Hyden, Co. Atty., Harmon County, of Hollis, for plaintiff.

Robinson & Oden, of Altus, and Claude Briggs, of Oklahoma City, for respondent.

HURST Justice.

This is an original proceeding in this court commenced by the Board of County Commissioners of Harmon County as petitioner to prohibit the respondent, Hon. W. P. Keen as District Judge from proceeding in cause No. 4305 in the District Court of Harmon County, wherein R. H. Bryant sued to recover damages from the County in a tort action.

It appears from the record that on August 28, 1936, Bryant sustained an accidental personal injury while working for Harmon County as an operator of a power propelled grader in maintaining the county highways. The employment was hazardous and was covered by the provisions of the Workmen's Compensation Act. 85 O.S.1941 § 3(3). Bryant filed a claim for compensation for the injury with the State Industrial Commission. An award was denied on the ground that the claim was not timely filed. The order of the State Industrial Commission was affirmed by this court. Bryant v. State Industrial Commission, 191 Okl. 14, 126 P.2d 716. Thereafter, cause No. 4305 was filed. The defendant, Board of County Commissioners of Harmon County, filed a demurrer to the petition which was overruled. This original action was then filed in this court.

We are committed to the rule that in the absence of an express statute creating a liability therefor, a county is not liable in a civil action for damages for injuries resulting from negligent acts or omissions of its officers or those it is obliged to employ in the performance of their duties as such officers or employees. See Hazlett v. Board of County Com'rs, 168 Okl. 290, 32 P.2d 940, and authorities there cited. And this rule prevails generally in the other states. 15 C.J. 568; 20 C.J.S., Counties, § 215, p. 1067; 14 Am.Jur. 215; 7 R.C.L. 954.

1. The first question for decision is whether 85 O.S.1941 § 12 creates a cause of action against a county, where, as here, the county is liable as an employer under the Workmen's Compensation Law, 85 O.S.1941 § 3(3), and where it has failed to comply with 85 O.S.1941 § 149, by insuring against such liability or by taking the necessary steps to carry its own insurance.

In Whiteneck v. Board of County Commissioners, 89 Okl. 52 213 P. 865, we answered this question in the negative. We there held that section 12 "does not in any manner change the common law relative to liability of a state or county for the torts of its agents or employees, and, inasmuch as it does not either expressly or impliedly impose liability on the county for the torts of its agents or employees, an action cannot be maintained against the county for injury resulting in the death of an employee engaged in constructing a bridge." While we were there dealing with liability for death and are here dealing with liability for personal injuries, the principle of law is the same. Section 12 creates no cause of...