Bracht v. Conservation Commission
| Decision Date | 21 January 1948 |
| Docket Number | 17658. |
| Citation | 76 N.E.2d 848,118 Ind.App. 77 |
| Parties | BRACHT v. CONSERVATION COMMISSION. |
| Court | Indiana Appellate Court |
Townsend Hilgemann & Logan, of Fort Wayne, for appellant.
Cleon H. Foust, Atty. Gen., and Frank E. Coughin, Miller Davis, and Karl J. Stipher, Deputy Attys. Gen., for appellee.
On July 25, 1944, the appellant, accompanied by his wife and son visited Pokagon State Park in Steuben County and paid his admission fee to the park and was handed a circular describing various trails through the park. Appellant and his family followed one of the trails, which was marked, and while walking along the trail, an old and decayed tree fell striking and instantly killing the wife and severely and permanently injuring the appellant.
The appellant instituted this action in the Steuben Circuit Court to recover damages for the personal injuries he had sustained. The complaint was in a single paragraph and charged appellee with negligence in maintaining a nuisance and a failure to use reasonable care in keeping the walks, paths, and trails in the park in a reasonably safe condition for use by persons admitted to said park.
The appellee filed a demurrer to the complaint, which demurrer was based upon the grounds that: (1) The court had no jurisdiction of the subject matter of the action; (2) that the court had no jurisdiction of the person of the defendant; and (3) that the complaint did not state facts sufficient to constitute a cause of action. The memorandum filed with the demurrer stated: (1) That the State of Indiana is not subject to a suit in the courts by a citizen of the state except by direct permission of the state; and (2) that the state has not consented to be sued in a tort action such as alleged in the complaint, and therefore the action could not be maintained against the defendant, a department of the state.
The demurrer was sustained, and upon appellant's refusal to plead further, judgment was rendered for the defendant and this appeal perfected.
The sole error assigned is the sustaining of the demurrer to the complaint.
Appellant most earnestly presents the following propositions in support of his contention that the court erred in sustaining the demurrer to his complaint, to wit: 1. That the state has the power to form a quasi public corporation and that the conservation commission is in fact a quasi public corporation, acting as an agency of the state, and as such it may be sued the same as any other corporation. 2. That the appellee is liable for maintaining a nuisance even though it is not liable for the torts of its employees, officers, or agents. 3. That the act of permitting an old decayed tree to stand where the public was likely to be injured by its falling constituted the maintenance of a nuisance. 4. That appellee was liable and suable for the maintenance of a nuisance in a public park where an admission fee is charged. 5. That where the state engages in business or a business enterprise, it stands upon the same footing as an individual and cannot claim immunity from suability or liability.
Appellee insists that it is a department of government of the State of Indiana and as such cannot be sued in tort for damages; 2. That the State of Indiana has consented to be sued in only two kinds of actions: (a) Those involving money demands against it arising out of contract, express of implied, § 4-1501, Burns' 1946 Repl.; and (b) those involving its interests in real estate, § 2-229, Burns' 1946 Repl.; and 3. That in the instant case appellant is attempting to extend the principle of suability and liability applicable to municipal corporations in Indiana to the state itself and particularly to the Indiana Department of Conservation, and that such principle and doctrine is not, and never has been, held applicable to the sovereign state of Indiana, or any of its departments or agencies. Appellee further contends that appellant's proposition to the effect that 'where the state engages in business or business enterprises, it stands on the same footing as an individual' is true only in cases where the state by a contract puts itself in the status and upon the same basis as any other contracting party or individual. Then, and in such event, under Article 4, § 24, of the Indiana Constitution and § 4-1504, Burns' 1946 Repl., the state may be sued and held liable.
The first question presented is: whet is the legal status of the appellee Conservation Commission?
The original act creating the department was Chapter 60, Acts 1919. The title of this Act reads:
'An Act creating a department of conservation, defining its powers and duties, and abolishing certain offices, boards and departments and making an appropriation.'
Section 1 of said act, § 60-701, Burns' 1943 Repl., reads as follows:
'There shall be and hereby is created an administrative department to be known as 'The Department of Conservation'.'
In 1945 Chapter 353 of the Acts of 1945 was enacted. § 60-701, Burns' 1943 Repl. (Supp.) The title of this act reads in part:
'An act concerning conservation; abolishing 'the department of conservation,' * * * creating the Indiana Department of Conservation, providing for the appointment of its members and a director of said department, providing for and defining their rights, powers, authorities, duties and responsibilities, * * *.'
Section 2 of said act, being § 60-702, Burns' 1943 Repl. (Supp.), reads in part:
Chapter 106, Acts 1945, § 60-747, Burns' 1943 Rep. (Supp.), provides in part:
'The department of conservation shall have the authority to acquire, maintain and make available to the public under such rules and regulations as may be established by the department of conservation, public parks and other suitable places for recreation * * *.'
The department consists of seven divisions created by various statutes, viz.: Geology, entomology, forestry, lands and waters, fish and game, engineering, oil and gas and water resources. The powers and duties of each of the divisions are set forth in §§ 60-712 to 60-721, inclusive, Burns' 1943 Repl. and Acts 1947, cc. 239, 227. § 60-718 provides:
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