Elizabeth River Tunnel Dist. v. Beecher

• Decision Date: 16 January 1961
• Docket Number: No. 5147,5147
• Citation: 85 A.L.R.2d 469,202 Va. 452,117 S.E.2d 685
• Parties: , 85 A.L.R.2d 469 ELIZABETH RIVER TUNNEL DISTRICT, ET AL. v. LOUISE BEECHER. Record
• Court: Virginia Supreme Court

Page 685

117 S.E.2d 685

202 Va. 452, 85 A.L.R.2d 469

ELIZABETH RIVER TUNNEL DISTRICT, ET AL. v. LOUISE BEECHER.

Record No. 5147.

Supreme Court of Appeals of Virginia

January 16, 1961.

Edward L. Breeden, Jr. (Robert R. MacMillan; Breeden, Howard & MacMillan, on brief), for the plaintiffs in error.

Herbert K. Bangel (Bangel, Bangel & Bangel, on brief), for the defendant in error.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Plaintiff, Louise Beecher, filed a motion for judgment against Elizabeth River Tunnel District and Virginia Transit Company seeking damages for personal injuries sustained while she was in the act of boarding a bus allegedly operated and controlled by the defendants. The defendants filed a special plea praying that the suit be dismissed on the ground that the District and the Company, as its agent, were performing an essential governmental function in operating the buses and were thus immune from suit.

The court proceeded to hear evidence on the special plea and on September 5, 1959, entered the following order:

'It appearing to the Court for the reasons stated in its written opinion dated October 26, 1959, that the said special plea filed by the defendants should be denied and rejected, the Court doth hereby deny and reject said special plea and doth direct that the said defendants file their answers to said motion for judgment on or before November 4, 1959, to all of which action of the court the said defendants and each of them do here except and object.'

Thereafter the defendants, without waiving their exceptions and without consenting to suit, filed their answers as directed in which they denied the allegation of negligence and asserted that the plaintiff was guilty of contributory negligence.

The trial of the case before a jury resulted in a verdict against the defendants in the sum of $10,000. Defendants thereupon moved the court to set aside the verdict as contrary to the law and the evidence, which motion the court denied and entered final judgment for the plaintiff. We granted defendants a writ of error.

The questions involved relate both to the matter of governmental immunity raised by the special plea, and the events surrounding the alleged accident.

The special plea asserted:

'1. The defendant, the Elizabeth River Tunnel Commission, is a governmental entity, a political subdivision and arm of the State of Virginia and is immuned from suit in this action and may not be sued except with consent of the State.

'2. The General Assembly of Virginia in creating the Elizabeth River Tunnel District found it to be a governmental entity, and specified that the 'project' could 'include bus facilities for the transportation of passengers through or over such tunnel or bridge if the Commission shall deem it expedient to acquire such facilities.'

'3. In the exercise of such discretion the Elizabeth River Tunnel Commission has deemed it expedient and mandatory to transport pedestrians over the project as the facility was not designed or constructed to enable pedestrians to walk through the tunnel portion of said project.

'4. In the exercise of its governmental function the Elizabeth River Tunnel Commission contracted with Virginia Transit Company to assist the Commission in operating said bus facility and in fulfilling its governmental function, but the control of and responsibility for said bus operation resides in said Elizabeth River Tunnel District, and the immunity afforded by law extends to the acts of the Virginia Transit Company.

'Wherefore the defendants move the court to dismiss the plaintiff's action and enter judgment for the defendants on their Special Plea.'

The plaintiff filed no answer denying the allegations of the special plea and offered no evidence when said special plea was heard. On the other hand defendant, Elizabeth River Tunnel District, introduced evidence on the plea, developing the following facts:

The Elizabeth River Tunnel District is a political subdivision of the Commonwealth of Virginia and has been declared by the General Assembly to be created to perform an essential governmental function of the Commonwealth. Acts of Assembly 1942, Chapter 130. The Act creating the District provides that the Commission may construct a bridge and tunnel, or both, over and under the Elizabeth River between the cities of Norfolk and Portsmouth; the Act specifically provides that the bridge-tunnel project 'may also include bus facilities for the transportation of passengers through and over such tunnel or bridge if the Commission shall deem it expedient to acquire such facilities.' Acts of Assembly 1942, Chapter 130, Sec. 3(c).

Pursuant to said authority the Commission purchased twelve buses which were painted with distinctive colors, and established routes for said buses over the bridge-tunnel project with connecting bus routes in the cities of Norfolk and Portsmouth. It was established that no means existed by which pedestrians could cross said bridge-tunnel project except by the tunnel buses and that the buses are a necessary and incidental part of said project; that the schedules, routes, and fares applicable to said buses are subject to the final and absolute control of the Tunnel Commission.

The license plates used on said buses are 'public use' tags issued by the State Department of Highways, and all gasoline, oil and parts used by the said tunnel buses are exempt from Federal and State taxation as said buses are State owned and used. When the buses were purchased by the Commission no Federal tax was paid thereon as they were held for use by the State.

The geographical area of the District includes the cities of Norfolk and Portsmouth and the County of Norfolk. The bus facilities are inter-urban only and not intra-urban. The buses carry passengers between a point in the City of Norfolk to a point in the City of Portsmouth and vice versa, but not between two points in the City of Norfolk or the City of Portsmouth, and signs at the bus stops advise the public of this fact. Rules issued by the Commission are posted and enforced by the Tunnel Commission. The Commission is composed of two representatives from the City of Norfolk, and one representative each from the City of Portsmouth and Norfolk County; the permanent chairman of the Commission is the Commissioner of Highways. The District has its own police force, and has the same power of condemnation as the State Highway Department.

Upon this evidence the trial court in its opinion overruling the special plea, in effect, held:

1. That the Elizabeth River Tunnel District has final and absolute control of all phases of the tunnel bus operation, and that the Virginia Transit Company is a mere agent of the Tunnel District and not an independent contractor.

2. That the Tunnel District in operating said buses along authorized routes, exercised its statutory powers and did not exceed the powers granted it by statute.

3. That it is settled law in this Commonwealth that the State cannot be sued for its torts or the torts of its agents except by the consent of the State, which consent has been granted only in the case of contractual obligations of the State. §§ 8-752 and 8-757, Code of Virginia, 1950.

4. That the foregoing rule in paragraph 3 above is judge-made and therefore subject to modification by the courts to meet changing conditions; that conditions having changed, it would deprive the Tunnel District of its governmental immunity on the theory that the bus operation is a 'legal function' of the District but not a 'governmental function.'

5. That 'no public agency of the State should be allowed to operate what amounts to a commercial undertaking for compensation and with the same rights as a private enterprise, without commensurate liabilities.'

6. That the Elizabeth River Tunnel District Act (Acts of Assembly 1942, Chapter 130) provides that the District 'may sue and be sued,' and that the State has perhaps thereby consented to suit for the torts of its agents.

We do not agree with several of the lower court's conclusions, as hereinafter pointed out.

The Act creating the Tunnel District (Acts of Assembly 1942, Chapter 130, Sec. 16) provides:

'It is hereby found, determined and declared that the creation of the District and the carrying out of its corporate purposes is in all respects for the benefit of the people of this State and is a public purpose, and that the District and the Commission will be performing an essential governmental function in the exercise of the powers conferred by this Act.'

This is a legislative declaration and not a judicial determination.

The State cannot be sued for torts without its consent. This is the settled law in Virginia and other jurisdictions. Sayre v. Northwestern Turnpike Road, 10 Leigh (37 Va.) 454; Richmond v. Long's Adm'rs, 17 Gratt. (58 Va.) 375; Maia v. Eastern State Hospital, 97 Va. 507, 34 S.E. 617; Commonwealth v. Chilton Malting Co., 154 Va. 28, 152 S.E. 336; Wilson v. State Highway Commissioner, 174 Va. 82, 4 S.E.2d 746; Hicks v. Anderson, 182 Va. 195, 28 S.E.2d 629; Eriksen v. Anderson, 195 Va. 655, 79 S.E.2d 597; Banks v. Liverman, 129 F.Supp. 743 (affirmed, 226 F.2d 524); 49 Am. Jur., States, Territories and Dependencies, § 76, p. 288; 81 C.J.S., States, § 130, p. 1137.

Code, §§ 8-752 and 8-757 provide the only instances in which actions may be maintained against the State. There is no statute in Virginia granting a right to sue the State for torts. The power to consent to suit for torts rests in the legislature and not in the judiciary.

The fact that the Elizabeth River Tunnel District Act provides that it 'may sue and be sued' cannot be advanced as an assertion of State waiver of immunity or State consent to suit for torts. We have consistently held that waiver of immunity cannot be implied from general statutory language or by implication. Statutory language granting consent to suit must be explicitly and...