Garrett v. Jones

• Decision Date: 17 February 1948
• Docket Number: Case Number: 33136
• Citation: 200 Okla. 696,1948 OK 41,200 P.2d 402
• Parties: GARRETT v. JONES
• Court: Oklahoma Supreme Court

1948 OK 41

200 P.2d 402

200 Okla. 696

GARRETT v. JONES

Case Number: 33136

Supreme Court of Oklahoma

Decided: February 17, 1948

Syllabus

¶0 1. EMINENT DOMAIN - Government contractor not liable for acts done under authority validly conferred on him by Congress.

A government contractor is not liable for acts done by him in executing the will of Congress under authority validly conferred by it on him.

2. UNITED STATES - When agent or officer of the United States liable for injury to another.

An agent or officer of the United States purporting to act on its behalf is liable for his conduct causing injury to another only if he exceeds his authority or if such authority was not validly conferred on him.

3. FALSE IMPRISONMENT - Insufficient evidence to support charge of false arrest caused by defendant - Demurrer to evidence properly sustained.

Record examined; no evidence found to support charge defendant procured or participated in alleged false arrest; held, demurrer to evidence properly sustained.

Appeal from District Court, Tulsa County; Harry L.S. Halley, Judge.

Action by Florence B. Garrett against Lloyd K. Jones, individually and doing business as Jones Construction Company. Judgment for defendant, and plaintiff appeals. Affirmed.

J.S. Severson and Chas. W. Wortman, both of Tulsa, for plaintiff in error.

O.L. Isaacs, of Emporia, Kan., and Hudson, Hudson & Wheaton, of Tulsa, for defendant in error.

WELCH, J.

¶1 In this case Florence B. Garrett sued Lloyd K. Jones, individually, and doing business as Jones Construction Company, for damages, stating two causes of action.

¶2 For a first cause of action stated in the petition plaintiff alleged ownership of certain described real estate lying along the bank of the Arkansas river; that the defendant forcibly entered upon said lands and without lease or license from plaintiff or any payment to plaintiff, and without any condemnation proceedings, took her land and used the soil therefrom and built thereon what is commonly called the West Tulsa Levee, for which taking she sought actual and punitive damages.

¶3 For a second cause of action plaintiff alleged that defendant caused her to be falsely arrested and imprisoned.

¶4 Defendant answered the separate charges by a general denial, and, in reference to plaintiff's first cause of action, stated: That drainage district No. 12 of Tulsa county, Oklahoma, agreed to furnish easements and right of way for the levee to the United States; that the United States Government, by written contract, employed defendant to build the levee, and in said contract agreed to provide right of way at the site of the work and access thereto at no expense to the contractor; that defendant built the levee in accordance with said contract and in doing so was the Government's agent and not liable to plaintiff for failure to obtain right of way.

¶5 The lands involved were accreted lands. Plaintiff introduced evidence concerning her claim of ownership of the land, of her use thereof and of the value of the land; that defendant entered upon said land over her protest and constructed the levee as alleged in her petition; that she had never received any payment for the land taken or offer of payment, and that no proceeding in condemnation to take the lands for such purpose or any purpose had ever been instituted. Further testimony was given concerning the details of her arrest and imprisonment.

¶6 The defendant's demurrer to the evidence was sustained as to the second cause of action and overruled as to the first.

¶7 A contract entered into between the United States Government and the defendant was introduced in evidence. It provided that defendant should perform the work for construction of certain levees at certain sites which included the lands claimed by plaintiff; that such work be done by the defendant in accord with the plans and specifications set forth and under the general direction and supervision of the contracting officer of the Government, who was a representative of the United States Engineers. The contract contained this provision:

"Right-of-way at the site, the work and access thereto will be provided by the Government at no expense to the contractor."

¶8 The defendant then presented testimony to show that before his entry upon the land of plaintiff, the United States Engineers had entered and driven stakes outlining the area of the work to be performed by him under the contract, and that he had entered and performed the work in strict accordance with the plans and specifications for construction set forth in the contract.

¶9 At the close of all the evidence the trial court directed a verdict in favor of the defendant, and plaintiff appeals.

¶10 All assignments of error are presented by plaintiff under five propositions: The first four propositions relate to the first cause of action and the contention of plaintiff that defendant is liable for the taking of her property regardless of his status as a government contractor at the time of the taking. The defendant does not contend that plaintiff should not be paid for the taking, but contends that plaintiff should proceed against the drainage district as in condemnation or against the Government in the Court of Claims, and that defendant is not liable.

¶11 Both parties in their brief cite the case of Yearsley v. W. A. Ross Construction Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554. The following rules are stated in the headnotes in 84 L. Ed. 554:

"A government contractor is not liable for acts done by him in executing the will of Congress under authority validly conferred by it on him.

"An agent or officer of the United States purporting to act on its behalf is liable for his conduct causing injury to another only if he exceeds his authority or if such authority was not validly conferred on him.

"A government contractor acting under authority validly conferred upon him cannot be held liable for damage to property upon the ground that such damage constitutes a taking of property without just compensation under the Fifth Amendment, the remedy in such a case being by suit against the government in the Court of Claims."

¶12 In this cited case the action was brought to recover damages for land which petitioner alleged respondent had caused to be washed away by building dikes on the Missouri river. Respondent alleged in defense that the work was done pursuant to a contract with the Government. The United States Supreme Court in its opinion said:

"The Court of Appeals also found it to be undisputed 'that the work which the contractor had done in the river bed was all authorized and directed by the Government of the United States for the purpose of improving the navigation of this navigable river'. It is also conceded that the work thus authorized and directed by the governmental officers was performed pursuant to the Act of Congress of January 21, 1927, 44 Stat. at L. 1010, 1013.

"In that view, it is clear that if this authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will. See Den ex dem. Murry v. Hoboken Land & Improv. Co., 18 How. (U.S.) 272, 283, 15 L.Ed. 372, 377; Lamar v. Browne, 92 U.S. 187, 199, 23 L.Ed. 650, 655; The Habana, 189 U.S. 453, 465, 47 L.Ed. 901, 903; 23 S.Ct. 593. Where an agent or officer of the Government purporting to act on its behalf has been held to be liable for his conduct causing injury to another, the ground of liability has been found to be either that he exceeded his authority or that it was not validly conferred. (Citations.)

"Petitioners present the question whether the building of the dikes and the erosion of their land, because of the consequent diversion of the current of the river, constituted a taking of their property for which compensation must be made. We do not find it necessary to pass upon that question, for if the authorized action in this instance does constitute a taking of property for which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and has afforded a remedy for its recovery by a suit in the Court of Claims. (Citations)

"'The Fifth Amendment does not entitle him (the owner) to be paid in advance of the taking' and the statute affords a plain and adequate remedy. Hurley v. Kincaid, supra. It follows that as the Government in such a case promises just compensation and provides a complete remedy, action which constitutes the taking of property is within its constitutional power and there is no ground for holding its agent liable who is simply

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