High-Grade Oil Co., Inc. v. Sommer
| Decision Date | 20 August 1980 |
| Docket Number | HIGH-GRADE,No. 12868,12868 |
| Citation | 295 N.W.2d 736 |
| Parties | OIL COMPANY, INC., a/k/a High Grade Oil Company, Inc., and James R. Donovan, Plaintiffs and Appellants, v. Maynard SOMMER, Defendant and Appellee. |
| Court | South Dakota Supreme Court |
Acie W. Matthews, of Willy, Pruitt, Matthews, Hurd, Farrell, Frankman & Johnson, Sioux Falls, for plaintiffs and appellants.
Robert D. Hofer, of Riter, Mayer, Hofer & Riter, Pierre, for defendant and appellee.
Appellants filed suit against appellee as a joint tort-feasor for his part in the design and construction of a stretch of U.S. Highway 12 upon which a collision occurred wherein one person was seriously injured. The trial court granted summary judgment followed by summary judgment nunc pro tunc. We affirm.
The facts of the collision are immaterial except that (1) James R. Donovan, in the course of employment by High-Grade Oil Company, Inc., lost control of the vehicle he was driving on a reverse "S" curve which appellants now claim was negligently designed or modified by appellee or with his approval, and (2) Donovan's vehicle crossed into the oncoming traffic lane and collided with another vehicle in which Alice Harms was a passenger.
As a result of the accident, Alice Harms was seriously injured. Mrs. Harms filed suit against appellants for damages which resulted from the injuries she received in the accident. Appellants attempted to join the State of South Dakota through third-party proceedings, but that motion was denied on the grounds of governmental immunity, and appellants agree that such dismissal was proper.
Appellants then settled the claim with Mrs. Harms when she signed a release of all claims for a substantial monetary consideration. Appellants then filed suit against appellee as a joint tort-feasor whereby appellants alleged that appellee was legally liable to contribute to the settlement. Appellants alleged that the accident occurred through no fault of theirs, but rather that it occurred due to the negligent acts and omissions of appellee since the reverse "S" curve was without a minimum tangent as required by custom and the applicable road standards for safety.
At the time of the accident appellee was the Director and State Highway Engineer of the Division of Highways for the State of South Dakota. Part of his responsibility in that position was to design or approve the design of highway systems for the state. He also approved modifications and repairs in the highway system.
The pertinent part of appellee's answer stated that the proper party was the State of South Dakota, not appellee; he also pleaded governmental immunity; he also stated that he was not personally liable, that any possible negligence on his part was actually the negligence of the state.
Appellee made a motion to dismiss the complaint. The trial court, treating the motion as a motion for summary judgment, granted summary judgment, after which it granted summary judgment nunc pro tunc. On appeal the two judgments are being considered as one judgment, as per agreement by the parties.
This brings us to the first issue we must decide, whether this is an action against an individual or against the state. Obviously the state is not a nominal party, but it is settled law that in an action against an officer of the state where the state is the real party against which relief is sought, and where a judgment for the plaintiff, although nominally against the officer as an individual, could operate to subject the state to liability, the action is to be deemed against the state and is not maintainable unless the state has consented to be sued. 72 Am.Jur.2d States, Etc., § 108 (1974). See also: White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614 (1925).
Appellants urge that under our holding in White Eagle the action is maintainable against the officer as an individual. There we said that "those actions at law or suits in equity maintained against defendants, who while claiming to act as officers of the state, violate and invade the personal and property rights of the plaintiffs under color or authority unconstitutional and void, are not suits against the state." 48 S.D. at 617, 205 N.W. at 617 (emphasis added). But appellants misapprehend the meaning of the phrase emphasized above. Counsel urges that because appellee violated certain safety standards with respect to the minimum tangent on a "S" curve, he acted outside the scope of his employment and his actions were thus void. We cannot agree. Under Article XIII, § 9 of our state constitution, construction and maintenance of public highways is a function of state government. The legislature by statute has vested the authority for such construction and maintenance in the Board of Transportation. 1 Appellee is an employee of the Department of Transportation, the operational arm of the Board. Any action on his part in the performance of his duties, whether negligently done or otherwise, clearly is constitutional and is not void. In White Eagle, supra, the officers were sued in their official capacities, but the claim was that their actions were premised on an unconstitutional statute.
Considering then, as we must, that this is an action against the state, we next review appellants' attack on the doctrine of "governmental" or "sovereign immunity," which terms are interchangeable. In our discussion of sovereign immunity we confine ourselves entirely to the review as the doctrine applies to the state level of governmental activities as opposed to municipal, county, or township levels. This court has recognized the rule that as to the state there is no distinction between governmental and proprietary functions. Judge Campbell in State v. Board of Commissioners, 53 S.D. 609, 632-633, 222 N.W. 583, 593 (1928), after a lengthy and excellent treatise on the concept of sovereign immunity, stated:
The purpose and the sole purpose of government in this state, in its actual operation, is to carry out the powers and perform the functions intrusted to it by the people of this state, and there is not, legally speaking, any distinction in the capacity in which the government of the state acts, or in the essential nature of its operation as a matter of law, in the performance of any one function intrusted to it by the people as compared with the performance of other functions so intrusted. We therefore hold that there cannot be successfully maintained, as a matter of law, in this state, under the circumstances here involved, a distinction...
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