Daniel's Adm'R v. Hoofnel
| Decision Date | 21 October 1941 |
| Citation | 287 Ky. 834 |
| Parties | Daniel's Adm'r v. Hoofnel et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Colleges and Universities. — The Western State Teachers' College, like other specially created public bodies corporate exercising governmental functions and expressly made amenable to suit, is not ordinarily liable for torts of its officers or agents, the exemption being derived from or existing in the sovereignty of the state itself (Ky. Stats., sec. 4527-44).
2. Colleges and Universities. — The legislature, having the power to waive by resolution the state's immunity from suit for tort of its agents, has the power to waive, in like manner, the immunity of its agency, such as Western State Teachers' College (Ky. Stats., sec. 4527-44; Acts 1938, c. 211).
3. Courts. — Regardless of views of Court of Appeals as now constituted regarding soundness of construction originally given to constitution to effect that the legislature may by special resolution waive the state's immunity from suit, that construction which has been consistently adhered to for 42 years would be adhered to under the doctrine of "stare decisis et non quieta movere" (Constitution, sec. 231).
4. Courts. — The doctrine of "stare decisis et non quieta movere," to stand by precedents and not disturb settled points, is not inflexible or so imperative as to require perpetuation of an error but departure from the policy it declares can be justified only upon substantial grounds and the force of the rule depends upon the nature of the question to be decided and extent of the disturbance of rights and practices which a change in interpretation of the law or the course of judicial opinions may create.
5. Courts. — Decisions construing a constitution should be followed in the absence of strong reasons for changing them, since it is of the utmost importance that the organic law be of certain meaning and fixed interpretation.
6. Statutes. — The legislature may by special resolution waive the immunity of state or its agency from suit and liability for the tort of its officers, agents and employees, since such a special resolution is not a "local act" or "special act" within constitutional provision prohibiting the legislature from enacting local or special act where a general law can be made applicable (Constitution, secs. 3, 59, subd. 29, and sec. 231).
7. Colleges and Universities. — Special resolution of legislature authorizing suit against state college for purpose of ascertaining the liability of the commonwealth for its negligence or that of its agency, the state college, through its agents or employees, and directing payment of judgment out of general fund and not out of appropriation made of funds for maintenance of college, authorized the fixing of liability of the college and rendition of judgment against it (Acts 1938, c. 211).
8. Colleges and Universities; States. — In action against state, a state college and a watchman of the college for death of automobile occupant, where it appeared that watchman was acting as agent of college, that he had been merely clothed with power of a city policeman in order to make arrests, that all his duties were prescribed by college authorities, that in order to stop a speeding automobile watchman called upon driver to stop, that after automobile had passed, the watchman fired at tire and bullet hit pavement and ricocheted into automobile, killing occupant, the state and the college were liable for the tort and it was error to give peremptory instruction for the state and college (Acts 1938, c. 211).
9. Customs and Usages. — Custom does not change the quality of an act and when that quality appears from the act itself, a custom or practice cannot avail to establish as sufficient in law that which is dangerous in fact.
10. Negligence. — Firing at an automobile for the purpose of shooting down the tire is recognized as "criminal negligence."
11. Colleges and Universities. — In action against the state, a state college and a night watchman of the college for death of automobile occupant who was fatally injured when night watchman of college to stop a speeding automobile fired at tire but bullet hit pavement and ricocheted into automobile, admitting testimony of sheriff and police officers that it was a recognized practice to shoot a tire down in order to stop an automobile was error (Acts 1938, c. 211).
12. Appeal and Error. — In action against state, a state college and a night watchman of college for death of automobile occupant who was fatally injured when night watchman in order to stop a speeding automobile fired at automobile tire, where jury returned verdict for only $800 against the night watchman, error in admitting testimony of police officers that it was recognized practice to shoot a tire down in order to stop an automobile entitled plaintiff to a new trial against the night watchman (Acts 1938, c. 211).
Appeal from Warren Circuit Court.
Howell W. Vincent and Joe S. Garman for appellant.
Rodes K. Myers for appellee Hoofnel.
Hubert Meredith, Attorney General, for the Commonwealth and Board.
Maurice D. Burton for City of Bowling Green.
Max B. Harlin for National Surety Co.
Before Porter Sims, Judge.
Reversing in part and affirming in part.
On the night of September 12, 1937, Henderson Daniel, a guest in an automobile driven by James Goodrum through the campus of the Western State Teachers' College at Bowling Green, was struck by a bullet fired at the car by Aubrey K. Hoofnel, a night watchman or police officer, because it would not stop on his command. Daniel died almost instantly. Pursuant to a joint resolution of the Legislature, Chapter 211, Acts of 1938, Daniel's administrator filed suit for damages for his death against the State, the Board of Regents of the College, Hoofnel, the City of Bowling Green, and the National Surety Company. Plaintiff dismissed the suit against the surety company when it appeared that its bond to the College did not cover anything but loss through embezzlement or diversion of property by its agents and employees, including Hoofnel by name. The court peremptorily instructed the jury to return a verdict for the State and the Board of Regents of the College upon the grounds that Hoofnel was acting in his capacity as a policemen of the city when he fired at the automobile, and dismissed the suit against the city on the ground of its non-liability as a governmental agency. A verdict for $800 was returned against Hoofnel individually. The administrator appeals, but concedes the propriety of the dismissal of the action against the city.
Before discussing the particular ground upon which the directed verdict for the Commonwealth and College was given, and an error in the admission of evidence, we consider the more basic argument of the Attorney General, representing the Commonwealth and the Board of Regents of the College. He argues that the Legislature had no authority to waive the immunity of the College from liability for the tort by a resolution, and did not in fact do so.
The College (Section 4527-44, Statutes), like other specially created public bodies corporate exercising governmental functions and expressly made amenable to suit, is not liable for the torts of its officers or agents, the exemption being derived from or existing in the sovereignty of the state itself. Leavell v. Western Kentucky Asylum, 122 Ky. 213, 91 S.W. 671, 4 L.R.A., N. S., 269, 12 Ann. Cas. 827; Zoeller v. State Board of Agriculture, 163 Ky. 446, 173 S.W. 1143; Kentucky State Park Commission v. Wilder, 256 Ky. 313, 76 S. W. (2d) 4; Wallace v. Laurel County Board of Education, 287 Ky. 454, 153 S.W. (2d) 915. But if the legislature has the power to waive the state's own immunity by resolution, it undoubtedly has the power to waive its agency's immunity in the same manner.
More fundamental is the question as to the constitutional limitations upon the legislature exercising such power by special resolution in either case. Section 231 of the Constitution is:
"The general assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth."
The three previous constitutions of Kentucky contain the same provision except that the word "may" has been substituted for "shall"; but throughout the entire history of the state the general assembly has never enacted a general law. Divine v. Harvie, 7 T.B. Mon. 439, 23 Ky. 439, 18 Am. Dec. 194; Commonwealth v. Haly, 106 Ky. 716, 51 S.W. 430, 431. It has always been the practice to waive sovereign immunity and authorize suits by special resolutions. Like our present constitution, Section 3, all others contained the fundamental declaration that no man, or set of men, are entitled to exclusive privileges except in consideration of public services; but this has never been deemed to deny the right of the state to waive its exemption from suit in any particular case. However the other constitutions did not prohibit the general assembly passing local or special acts as does Section 59 of the present constitution, Subsection 29 of which prohibits the enactment of any such law "where a general law can be made applicable." The effect of this limitation upon special resolutions authorizing individuals to prosecute suits against the state was before the court not long after the adoption of the Constitution, in Commonwealth v. Haly, supra. The court reasoned that such a resolution, although admittedly special in that it is for the sole benefit of a certain individual, can not be regarded as being embraced within the meaning and spirit of a general law that could be made applicable. The interpretation was influenced by the unquestionable right of a citizen, as in former times, to petition his sovereign to remedy a wrong, and by the fact that it had been the policy of the legislature, even then for more than a century, not to pass a general law authorizing suits against ...
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