High-Grade Oil Co., Inc. v. Sommer, HIGH-GRADE

CourtSupreme Court of South Dakota
Writing for the CourtMORGAN
Citation295 N.W.2d 736
PartiesOIL COMPANY, INC., a/k/a High Grade Oil Company, Inc., and James R. Donovan, Plaintiffs and Appellants, v. Maynard SOMMER, Defendant and Appellee.
Decision Date20 August 1980
Docket NumberHIGH-GRADE,No. 12868

Page 736

295 N.W.2d 736
HIGH-GRADE OIL COMPANY, INC., a/k/a High Grade Oil Company,
Inc., and James R. Donovan, Plaintiffs and Appellants,
v.
Maynard SOMMER, Defendant and Appellee.
No. 12868.
Supreme Court of South Dakota.
Argued April 21, 1980.
Decided Aug. 20, 1980.

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.

MORGAN, Justice.

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.

Page 737

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...

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32 practice notes
  • Masad v. Weber, No. 25034.
    • United States
    • Supreme Court of South Dakota
    • August 26, 2009
    ...common law. Sioux Falls Constr. Co. v. City of Sioux Falls, 297 N.W.2d 454, 457 (S.D. 1980) (citing High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736, 738 (S.D. 1980)). Sovereign immunity is limited in that it only exists in the absence of consent to be sued. Cromwell v. Rapid City Police ......
  • Gabriel v. Bauman, No. 26589.
    • United States
    • Supreme Court of South Dakota
    • May 21, 2014
    ...it should result from legislative action.” Cromwell, 2001 S.D. 100, ¶ 23, 632 N.W.2d at 26 (quoting High–Grade Oil Co. v. Sommer, 295 N.W.2d 736, 738 (S.D.1980)). Moreover, any abrogation must be express. Rupert v. City of Rapid City, 2013 S.D. 13, ¶ 33, 827 N.W.2d 55, 67 (citation omitted)......
  • L.R. Foy Const. Co., Inc. v. South Dakota State Cement Plant Com'n, No. 15000
    • United States
    • South Dakota Supreme Court
    • January 14, 1987
    ...Id. at 569. See also: Hershel v. University Hospital Foundation, 610 P.2d 237 (Okl.1980). However, in High-Grade Oil Co. v. Sommer, 295 N.W.2d 736, 738 (S.D.1980), we wrote, "[t]his court has recognized the rule that as to the state there is no distinction between governmental and proprieta......
  • Wulf v. Senst, No. 22428
    • United States
    • Supreme Court of South Dakota
    • August 27, 2003
    ...held sovereign immunity barred a cause of action against the state where the state was the real party in interest. High-Grade Oil, 295 N.W.2d 736; Wisc. Granite Co. v. State, 54 S.D. 482, 223 N.W. 600 Nevertheless, Leir reaffirmed the co-existence of case precedent holding employees respons......
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32 cases
  • Masad v. Weber, No. 25034.
    • United States
    • Supreme Court of South Dakota
    • August 26, 2009
    ...common law. Sioux Falls Constr. Co. v. City of Sioux Falls, 297 N.W.2d 454, 457 (S.D. 1980) (citing High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736, 738 (S.D. 1980)). Sovereign immunity is limited in that it only exists in the absence of consent to be sued. Cromwell v. Rapid City Police ......
  • Gabriel v. Bauman, No. 26589.
    • United States
    • Supreme Court of South Dakota
    • May 21, 2014
    ...it should result from legislative action.” Cromwell, 2001 S.D. 100, ¶ 23, 632 N.W.2d at 26 (quoting High–Grade Oil Co. v. Sommer, 295 N.W.2d 736, 738 (S.D.1980)). Moreover, any abrogation must be express. Rupert v. City of Rapid City, 2013 S.D. 13, ¶ 33, 827 N.W.2d 55, 67 (citation omitted)......
  • L.R. Foy Const. Co., Inc. v. South Dakota State Cement Plant Com'n, No. 15000
    • United States
    • South Dakota Supreme Court
    • January 14, 1987
    ...Id. at 569. See also: Hershel v. University Hospital Foundation, 610 P.2d 237 (Okl.1980). However, in High-Grade Oil Co. v. Sommer, 295 N.W.2d 736, 738 (S.D.1980), we wrote, "[t]his court has recognized the rule that as to the state there is no distinction between governmental and proprieta......
  • Wulf v. Senst, No. 22428
    • United States
    • Supreme Court of South Dakota
    • August 27, 2003
    ...held sovereign immunity barred a cause of action against the state where the state was the real party in interest. High-Grade Oil, 295 N.W.2d 736; Wisc. Granite Co. v. State, 54 S.D. 482, 223 N.W. 600 Nevertheless, Leir reaffirmed the co-existence of case precedent holding employees respons......
  • Request a trial to view additional results

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