Hunt-Forbes Construction Co. v. Robinson

• Decision Date: 21 December 1928
• Citation: 227 Ky. 138
• Parties: Hunt-Forbes Construction Company v. Robinson.
• Court: United States State Supreme Court — District of Kentucky

227 Ky. 138

Hunt-Forbes Construction Company v. Robinson.

Court of Appeals of Kentucky.

Decided December 21, 1928.

1. States. — State is sovereign, and is not suable without its consent even for taking of private property for public use, under provisions of Constitution, sec. 242.

2. States — One constructing under contract with state highway commission cannot be sued for injury to landowner resulting from cut made in conformity with plans furnished by state highway commission, where state did not give its consent to suit, notwithstanding

that it was not state's duty to provide right of way for road under Ky. Stats., sec. 4356t-7.

3. Highways. — Road contractor operating under contract with state highway commission held not negligent in not building retaining wall not required by contract, after removal of natural lateral support to plaintiff's land, and in not notifying plaintiff, who lived 50 feet from cut, that it was doing work which necessarily removed lateral support.

Appeal from Floyd Circuit Court.

ED. L. ALLEN and A.J. MAY for appellant.

JAMES & HOBSON for appellee.

OPINION OF THE COURT BY JUDGE LOGAN.

Reversing.

The appellant is a firm engaged in the business of constructing highways in the state of Kentucky. The appellee is a citizen of Floyd county who owned a small hillside tract of land through which, or by which, a right of way for a state highway ran. The state highway is known as the Mayo trail, and that particular part of the highway running from the Johnson county line up Little Paint creek to Cliff in Floyd county is the part we are concerned with in this suit. The appellant had a contract with the state highway commission to construct this part of the Mayo trail according to the plans and specifications of the state highway engineer. The county of Floyd furnished the right of way for the road. In constructing the road through or by the little hillside farm of appellee, appellant made a cut about 12 feet deep. This was in conformity with the plans furnished by the state highway commission for the construction of the road. The work was done at the point in accordance with the plans and specifications furnished to the appellant by the state highway commission. A few months after the construction had been completed at the particular point, but probably before appellant had finished the section of road mentioned in its contract, the hillside farm of appellee began to gravitate into the cut which had been made when the road was constructed. Cracks and fissures extended through his land in widening circles until at last his front porch fell over and found its way down into the road. A fissure opened under his house which caused it to turn over on its side, and at this time good judgment dictated that he abandon his home, which he did. He claimed that he had paid $1,200 for the erection of his house about a year before the injury to it. He had paid about $300 for the hill side land, and had located his house on the most available, or probably the only level spot that he could find on it. Realizing that he had been damaged without any fault of his own, he filed a suit against appellant and also against Floyd county seeking to recover the amount of damages which he had sustained. He afterwards dismissed his suit against Floyd county without prejudice, and, at the conclusion of the trial, a jury awarded him a verdict for $500 against appellant.

Appellant claims that it is not responsible for the damages, and cannot be held to answer to appellee in damages for the trouble which overtook him growing out of the construction of the road. This claim is grounded upon the idea that appellant constructed the road under the directions of the state, and that in doing so it was but the agent of the state, and as the state cannot be sued its agent cannot be sued provided the agent did nothing which was unauthorized by the contract with the state. Appellant admits that if it was negligent in the performance of the duties imposed by the contract and that such negligence resulted in the injury to appellee it might be held responsible, but it claims that it was not negligent, and that it discharged the duties called for in the contract strictly in accordance therewith.

The state is the sovereign and is not suable without its consent. It has not given its consent. Therefore the state could not be sued by appellee for the damages, if any, caused him by the construction of this road. It is contended, therefore, that appellant could not be held responsible for any damages...