Bush v. Highway Commission

• Decision Date: 17 February 1932
• Docket Number: No. 30056.,30056.
• Citation: 46 S.W.2d 854
• Parties: DR. W.B. BUSH, Appellant, v. STATE HIGHWAY COMMISSION OF MISSOURI.
• Court: Missouri Supreme Court

46 S.W.2d 854

DR. W.B. BUSH, Appellant, v. STATE HIGHWAY COMMISSION OF MISSOURI.

No. 30056.

Supreme Court of Missouri.

Division Two, February 17, 1932.

Appeal from Cole Circuit Court. — Hon. Henry J. Westhues, Judge.

AFFIRMED.

Pierre A. Vogel and N.G. Sevier for appellant.

(1) The State Highway Commission is a legal entity with corporate powers, but not a sovereign immune from suit. Such was decided in the case of State ex rel. State Highway Commission v. Bates, 296 S.W. 418. In the case of State ex rel. State Highway Commission v. Bates, cited above, the court did not enumerate the various causes of action that might be instituted by or against the State Highway Commission, and since the right to sue or be sued in actions ex contractu is not expressly provided for in the Act of 1921, it necessarily follows that the commission may sue and be sued in actions arising out of contract by reason of its express right to contract and be contracted with. (2) It is necessary, therefore, to consider the entire act in order to determine whether or not the Commission may sue and be sued in tort actions. Section 17 of the act among other things, provides that "any person, firm or corporation who shall damage or destroy any part of the state highway system by the doing of any act in violation of law shall be liable to such commission for the amount of such damage, and such damage may be recovered by civil suit in any court of competent jurisdiction; which suit may be brought in the name of the State Highway Commission of Missouri, as plaintiff, against the person, firm or corporation so causing such damage or destruction." If a person, having contracted with the commission, may bring suit arising out of such contract by reason of the power given the commission to enter into contracts, there is no good reason why a defendant sued by the commission for damages as provided by said section of the act may not defend by way of counterclaim, or, indeed, himself bring an action against the commission for damages, especially if same grow out of an act of negligence specified in said section. One of the plaintiff's assignments of negligence is excessive speed, and it will be noted that, in providing for an action by the commission for damages as a result of excessive speed, the Legislature unquestionably refers to Section 19 of the act entitled "Motor Vehicles," approved July 30, 1921. It is very clear that, in specifying certain acts of negligence as a result of which the commission may sue for damages, the Legislature did not intend to create any causes of action arising out of torts in addition to those already provided for by other laws. (3) The State Highway Commission is not endowed with administrative powers. State ex rel. State Highway Commission v. Bates. Not being endowed with administrative powers, but being a legal entity with the right to sue and be sued, it may be sued for damages as well as on contractual obligations. 36 Cyc. 919.

John W. Mather, B.F. Boyer and J. Marvin Krause for respondent.

(1) Respondent is not liable in actions ex delicto. 36 Cyc. 919; Miller Supply Co. v. State Board of Control, 72 W. Va. (Lilly) 525; Laws of W. Va., 1921, Ch. 112, p. 303, sec. 5; Mahone v. State Road Commission, 99 W. Va. (Lee) 397, 129 S.E. 320; Sayre v. Northwestern Turnpike Road, 10 Va. (Leigh.) 454; Cassidy v. St. Joseph, 247 Mo. 197; Healy v. Kansas City, 211 S.W. 59; State ex rel. State Highway Comm. v. Bates, 296 S.W. 418; Gross v. Kentucky Board of Managers, 49 S.W. 458; Hancock v. Ry. Co., 145 U.S. 415; Tompkins v. Kanawha Board, 19 W. Va. 257; James River v. Early, 13 Grattan (Va.) 552; Maxmilian v. Mayor, 62 N.Y. 161; Fisher v. Boston, 104 Mass. 87; Gardner v. Board of Health, 10 N.Y. (Selden) 409; Sec. 8107, R.S. 1929; 38 Cyc. 461; Heman v. Capper, 182 Pac. 386. (2) The State of Missouri, its officers and agents, including respondent, are not liable in tort actions unless the Legislature specifically by positive enactment waives immunity. Merchants Exchange v. Knott, 212 Mo. 647; 36 Cyc. 881, 882; Robertson v. Sichel, 127 U.S. 507; Elmore v. Fields, 127 Am. St. 31; Rauschan v. Gilbert, 253 Pac. 173; Apfelbacher v. State, 160 Wis. 565, 152 N.W. 144; Chapman v. State, 104 Cal. 690, 38 Pac. 457; Carpenter v. Railroad Co., 114 S.E. 693; Smith v. State, 13 A.L.R. 1264; Heman v. Capper, 182 Pac. 386; Hinkle v. Ry. Co., 199 S.W. 228; Hampton v. State Board of Education (Fla.), 42 A.L.R. 1456. (3) Respondent is entitled to immunity from tort actions by virtue of being a subordinate branch of the executive department of the sovereign State. State ex rel. McKinley Publishing Co. v. Hackmann, 282 S.W. 1007. (4) The State Highway Commission is protected from damage liability as a state officer. Sayre v. Northwestern Turnpike Road, 10 Va. (Leigh.) 454; Billings v. State, 67 Pac. 583; State ex rel. Highway Commission v. Day, 35 S.W. (2d) 37; State v. Workmen's Compensation Comm., 27 S.W. (2d) 1026; State ex rel. v. Gordon, 36 S.W. (2d) 105; Gibbons v. United States, 8 Wall. 269, 19 L. Ed. 453. (5) Respondent is without authority to convert bad money to pay judgments arising from tort actions. Kilberg v. State Highway Comm., 8 La. App. 441; Art. IV, Sec. 44a, Constitution; Laws 1921, pp. 131 to 167; State ex rel. State Highway Commission v. Thompson, 19 S.W. (2d) 642; Eads v. Y.M.C.A., 29 S.W. (2d) 701; Cochran v. Wilson, 286 Mo. 210.

FITZSIMMONS, C.

The question for decision in this case is whether respondent, the State Highway Commission of Missouri, may be sued for the tortious acts of its agents and employees. It is a question of first impression in this State. Appellant, Dr. W.B. Bush, brought suit in the Circuit Court of Cole County against respondent for $10,000 damages for personal injuries and the demolition of his automobile, alleged to have been caused by a collision with an auto truck of defendant on Highway No. 66 near Waynesville, in Pulaski County, Missouri. The petition charged that appellant's injuries and the destruction of his automobile were directly caused by the negligence of respondent's employee in operating the truck at a high and dangerous rate of speed, upon the wrong side of the road and without lights; in failing to exercise proper control over the truck or to give appellant warning, and in not observing the humanitarian rule. Respondent demurred to the petition upon the ground that the court did not have jurisdiction of the subject-matter of the action and that the petition did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, and, appellant declining to plead further, rendered a final judgment from which appellant appealed to this court.

I. Appellant contends that he is entitled to maintain his action because, by Section 8102, Revised Statutes 1929 (Sec. 12, Act of August 4, 1921, Laws 1921, 1st. Ex. Sess., pp. 131 to 167) "the commission may sue and be sued in its official Waiver: name, and for the purpose of suit and other legal Right to proceedings, service may be had on the secretary." He Sue and also urges his right to maintain the instant action Be Sued. under the authority of the decision of this court in the case of State ex rel. State Highway Commission v. Bates, 296 S.W. 418. In that case two copartners doing business under the name of Highway Commission Company, sued the State Highway Commission of Missouri in Jasper County upon a contract for road construction in Howard County. The plaintiffs, in the first count of their petition, sued for $16,000, balance due upon the contract, and, in the second count, they sued for $10,000, damages caused, in the doing of the road work contracted for, by the alleged arbitrary delays and exactions of the Highway Commission. These details are taken from the original files in this court, for the opinion (296 S.W. 419) merely states that the suit was for damages on a contract. Plaintiffs in the action in Jasper County caused service of summons to be had in that county constructively upon an engineer of the commission, and also in Cole County upon the Secretary of the commission. The State Highway Commission brought an original action in prohibition in this court, and the preliminary writ was made absolute. The reason for the rule was, that, under the act creating the commission, it is clear that the domicile of the commission is in Jefferson City, Cole County, Missouri, since the secretary, upon whom service is to be had, must be a resident of Jefferson City, in charge of an office there, to be provided by the Commission of the Permanent Seat of Government. [Sec. 8102, R.S. 1929.] Upon this question of domicile of the commission the court, in its opinion in State ex rel. v. Bates, says:

"It is clear, from the Act of 1921, that the State desired this entity to be sued, and the differences between it and the citizens of the State adjusted by the courts; but it is likewise clear that the domicile of the commission is in Jefferson City, Cole County, Missouri. Throughout the act, the sundry provisions disclose a clear intent to make it plain that, while this entity was building a road system for the State, the habitat of the commission is and should be in Jefferson City, the seat of the State government, and, further, that while the State desired that the commission should be sued, it was to be sued in Cole County, where all the maps, books, papers, contracts, and such like are kept."

It can hardly be said that these words of the opinion would sustain a suit of the nature of the action here in question. Both before and after the decision in State ex rel. v. Bates, supra, this court in sundry suits has adjusted differences which arose while the Highway Commission was building a road system for the State.

Castilo v. State Highway Commission, 312 Mo. 244, 279 S.W. 673, was a suit by tax-paying citizens to enjoin the defendant from constructing a state highway along a certain route located by the...