Henry v. Oklahoma Turnpike Authority

• Decision Date: 23 December 1970
• Docket Number: No. 42383,42383
• Parties: Carroll Dwight HENRY, Plaintiff in Error, v. OKLAHOMA TURNPIKE AUTHORITY et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 898

478 P.2d 898

Carroll Dwight HENRY, Plaintiff in Error, v. OKLAHOMA TURNPIKE AUTHORITY et al., Defendants in Error.

No. 42383.

Supreme Court of Oklahoma.

Dec. 23, 1970.

Syllabus by the Court

1. This court is committed to the rule that Oklahoma turnpikes are public highways.

2. Title 69 O.S.1961, § 653, constitutes the Turnpike Authority an instrumentality of the State and the exercise of its conferred

powers are deemed to be an essential governmental function.

3. An action against the Oklahoma Turnpike Authority for damages for tort liability is an action against the State and cannot be maintained in the absence of permissive statute or other consent of the State.

Appeal from the District Court of Oklahoma County; William L. Fogg, Judge.

Action by plaintiff, Carroll Dwight Henry, against the Oklahoma Turnpike Authority and others for damages in a tort action. Demurrer of Oklahoma Turnpike Authority was sustained and upon plaintiff's refusal to amend, the court rendered judgment for Oklahoma Turnpike Authority. Plaintiff appeals. Affirmed.

Grove & Pryor, Oklahoma City, for plaintiff in error.

McKeever, Glasser, McKeever & Conrad, by Douglas McKeever, Enid, for defendant in error, Oklahoma Turnpike Authority.

Floyd W. Taylor, Oklahoma City, for amicus curiae.

DAVISON, Justice.

This appeal is presented by plaintiff in error, Carroll Dwight Henry, hereinafter referred to as plaintiff, against the defendant in error, Oklahoma Turnpike Authority, hereinafter referred to as defendant, from an order of the trial court sustaining defendant's demurrer to plaintiff's petition and thereafter denying plaintiff motion for a new trial. The above designated parties are the parties involved in this appeal.

The action originally included as defendants a number of parties but all defendants, with the exception of the present defendant and Hallett Construction Company, a corporation, were dismissed from the suit.

Plaintiff's petition alleged that about 8:30 p.m. plaintiff was driving his car south on a public detour adjacent to U.S. Highway No. 62, approximately two miles north of Newcastle. The detour had been constructed to route traffic around the area of the 'Newcastle Exchange' during the construction of the H. E. Bailey Turnpike; that immediately prior to the involved accident Hallett Construction Company, by their agents and servants, to comply with a contract to perform work on the H. E. Bailey Turnpike let to them by the defendant, Oklahoma Turnpike Authority, obliterated, salvaged, and stock piled the asphalt black base that made up a portion of the public detour. That in this process the Hallett Construction Company, by their agents and servants, under their supervision and to the satisfaction of the engineer of the defendant, wrongfully and negligently excavated a deep and dangerous trench in and across the public detour road and that the parties wrongfully, carelessly and negligently allowed the trench to remain across the public detour without any protection, fence, light or signal to indicate danger or give notice to travelers.

Plaintiff further alleged that by reason of the negligence hereinabove described he drove his car into the trench and as a result he was permanently injured for which he prayed a damage award.

The trial court sustained the defendant's demurrer on the theory that defendant was an instrumentality of the State of Oklahoma engaged in essential governmental functions of the State with all attributes thereof and was immune to suit.

For a determination of the question involved it becomes necessary to consider the various enactments by the legislature.

The original Turnpike Act, passed in 1947 (later amended in 1959 and appearing in 69 O.S. § 653(a)) provided as follows:

'There is hereby created a body corporate and politic to be known as the 'Oklahoma Turnpike Authority,' and by that name the Authority may sue and be sued, and plead and be impleaded. The Authority is hereby constituted an instrumentality of the State and the exercise by the Authority of the powers conferred by this Act, in the construction, operation and maintenance of Turnpike projects shall be deemed and held to be an essential governmental function of the State. Provided, however, this shall not be construed to relieve said Authority from liability for personal injuries or property damages incurred by it through its negligence or the negligence of its servants or agents, and in addition thereto it shall be subject to Workmen's Compensation Laws of the State the same as a private construction project.'

The accident involved herein occurred while the amended act of 1959, 69 O.S.1961, § 653, was in effect and the present litigation is governed by said Act. This enactment provides as follows:

'a). There is hereby created a body corporate and politic to be known as the 'Oklahoma Turnpike Authority,' and by that name the Authority may sue and be sued, and plead and be impleaded. The Authority is hereby constituted an instrumentality of the State, and the exercise by the Authority of the powers conferred by this Act in the construction, operation, and maintenance of turnpike projects shall be deemed and held to be an essential governmental function of the State with all the attributes thereof. Provided, however, the Turnpike Authority is authorized to carry and shall carry liability insurance to the same extent and in the same manner as the State Highway Commission, and in addition thereto it shall be subject to the Workmen's Compensation Laws of the State the same as a private construction project.' (emphasis ours)

It will be noted that the original 1947 Act was amended by the 1959 Legislature, by three important changes:

(1) The words 'with all the attributes thereof' were added to the words making the Authority an essential governmental function.

(2) The words, 'Provided, however, this shall not be construed to relieve said Authority from liability for personal injuries or property damages incurred by it through its negligence or the negligence of its servants or agents,' were stricken from the Statute.

(3) The words, 'Provided, however, the Turnpike Authority is authorized to carry, and shall carry, liability insurance to the same extent and in the same manner as the State Highway Commission' were added to the Statute.

The State Highway Commission Act governing liability insurance was passed in 1955 and was the effective law at the time of the accident involved herein. The Act is now shown as 47 O.S.1961, §§ 157.1 to 157.3. Section 157.1 reads as follows:

'The State Highway Department, the State Board of Agriculture, and the State Department of Public Welfare of the State of Oklahoma are hereby authorized to carry insurance on vehicles, motorized machinery, or equipment owned and operated by the State Highway Department, the State Board of Agriculture, and the State Department of Public Welfare, such insurance to be of the following kinds and in the following amounts: * * *'

The pertinent part of § 157.3, supra, reads as follows:

'* * * The insurer may not plead as a defense in any action involving insurance purchased by the authority of this act the governmental immunity of either the State of Oklahoma, the State Highway Department, the State Department of Agriculture, or the State Department of Public Welfare, or any other subdivision of state government.'

We are of the opinion that by the 1959 Act, supra, the legislature intended to repeal the liability to suits in tort, but retaining its liability in other actions. Also by said Act the legislature intended to require the Authority to carry liability insurance in conformance with the law relative to the Highway Commission, and with the provision that in a suit in tort against it, the insurance company could not plead governmental immunity from suit against the Authority.

There is nothing in the 1959 Act constituting a waiver of immunity to suits in tort actions, except the limited waiver of permitting the purchase of liability insurance in limited amounts as described by statute.

Oklahoma is committed to the rule that Turnpikes are public highways, Application of Oklahoma Turnpike Authority, 203 Okl. 335, 221 P.2d 795; Application of Oklahoma Turnpike Authority, Okl., 348 P.2d 510.

This state has long been committed to the rule, without a single exception, that the State is immune from suits without its waiver or consent. Jack v. State, 183 Okl. 375, 82 P.2d 1033 (1937); State ex rel. Com'rs of Land Office v. Duggins, Okl., 258 P.2d 891 (1955); National Surety Co. v. State Banking Board, 49 Okl. 184, 152 P. 389 (1915); State ex rel. Com'rs of Land Office v. Board of Com'rs of Nowata County, 166 Okl. 78, 25 P.2d 1074 (1933); Wentz v. Potter, 167 Okl. 154, 28 P.2d 562 (1934); Hawks v. Walsh, 177 Okl. 564, 61 P.2d 1109 (1956); State Highway Commission v. Brixey, 178 Okl. 118, 61 P.2d 1114 (1936); State Highway Commission v. Adams, 178 Okl. 270, 62 P.2d 1013 (1937); Antrim Lumber Co. v. Sneed, 175 Okl. 47, 52 P.2d 1040 (1936); State ex rel. Department of Highways v. Keen, Okl., 354 P.2d 399 (1960); Hawks v. Bland, 156 Okl. 48, 9 P.2d 720 (1932); James v. Trustees, 18 Okl. 56, 90 P. 100 (1907); Love v. Filtsch, 33 Okl. 131, 124 P. 30 (1912); Patterson v. City of Checotah, 187 Okl. 587, 103 P.2d 97 (1940); Donaldson v. Board of Regents, 190 Okl. 269, 122 P.2d 139 (1942); Duncan v. State Highway Commission, Okl., 311 P.2d 203 (1957); Mountcastle v. State, Okl., 193 Okl. 506, 145 P.2d 392 (1944); State ex rel. Williamson v. Superior Court of Seminole County, Okl., 323 P.2d 979 (1958).

The above cases involve situations where the State was acting in a governmental capacity.

Plaintiff contends that defendant has waived its right to sovereign immunity by virtue of the fact that Title 69 O.S.1961, § 653, supra, requires the Turnpike Authority to carry liability insurance. We cannot agree with this statement for the reason that said statute...