Jones v. Texas Gulf Sulphur Co., 14681

• Decision Date: 16 December 1965
• Docket Number: No. 14681,14681
• Parties: James C. JONES, Appellant, v. TEXAS GULF SULPHUR CO. et al., Appellees.
• Court: Texas Court of Appeals

Page 304

397 S.W.2d 304

James C. JONES, Appellant, v. TEXAS GULF SULPHUR CO. et al., Appellees.

No. 14681.

Court of Civil Appeals of Texas, Houston.

Dec. 16, 1965.

Rehearing Denied Jan. 6, 1966.

John H. Holloway, Houston, for appellant.

Vinson, Elkins, Weems & Searls, and Judson R. Wood, Houston, for appellees.

WERLEIN, Justice.

Appellant, James C. Jones, brought suit against Texas Gulf Sulphur Company, H. L. Zigler, Inc., Harris County-Houston Ship Channel Navigation District, hereinafter referred to as Navigation District or District, and the following individually named defendants: Howard Tellepsen, W. N. Blanton, J. G. Turney, J. P. Hamblen, William M. Hatten, Vernon Whiteside, J. P. Turner, Vernon Bailey and J. L. Lockett, Jr., to recover damages for personal injuries sustained by appellant, resulting from the alleged negligence of said defendants or the negligence of others for whom it was alleged said defendants were responsible. The Navigation District and all the individually named defendants filed an unsworn pleading claiming sovereign immunity from tort liability. Appellant by supplemental petition pleaded waiver and estoppel as to said appellees' governmental immunity upon the basis of a liability insurance policy which had been taken out by the Navigation District. The District and said individuals timely made their joint motion for severance of appellant's cause of action against them from his cause of action against the Gulf Company and Zigler, and for summary judgment as to them, which motion was sustained.

Appellant asserts that the trial court erred in granting the summary judgment based upon governmental immunity since such immunity was allegedly waived and appellees were estopped to assert it to the extent of the limits of a comprehensive general liability policy which had been taken out by the Navigation District under the provisions of Article 8247a, Secs. 12 and 17, Vernon's Annotated Texas Statutes. Section 12 of such Article is as follows:

'The Board of Navigation and Canal Commissioners is authorized to enter into an agreement or agreements with the purchaser or purchaser of any obligations issued hereunder under the terms of which such Board shall agree to keep all of the improvements and facilities, the revenues of which are pledged to the payment of such obligations, insured with insurers of good standing against loss or damage by fire, water or flood, and also from any other hazards customarily insured against by private companies operating similar properties, and to carry with insurers of good standing such insurance covering the use and occupancy of such property as is customarily carried by such private companies. The cost of such insurance shall be budgeted as maintenance and operation expense and such insurance shall be carried for the benefit of the holders of such obligations.'

Appellant in his brief also relies upon the last sentence of Section 17 of said Article, which provides: 'This Act being necessary for and intended to secure the safety, convenience and welfare of the citizens of navigation districts in the State of Texas, shall be liberally construed to effectuate the purposes hereof.'

Appellant also cites Article 8263e, Sec. 75, V.A.T.S., which reads as follows:

'All navigation districts established under this Act may, by and through the navigation and canal commissioners, sue and be sued in all courts of this State in the name of such navigation district, and all courts of this State shall take judicial notice of the establishment of all districts.'

The law is well settled in this State that navigation districts such as the Navigation District in the present case, are not classed with municipal corporations, but are political subdivisions established by law. They are not liable in actions sounding in tort. Smith v. Harris County-Houston Ship Channel Navigation Dist., Tex.Civ.App.1957, 330 S.W.2d 672, and authorities there cited. We are of the opinion that the procuring by the District of a policy of comprehensive general liability insurance under the provisions of Article 8247a, Secs. 12 and 17, V.A.T.S., did not operate to remove the immunity of the District and its commissioners from tort liability in toto or to the extent of the limits of such policy. Furthermore, Article 8263e, Sec. 75, V.A.T.S., merely provides that a navigation district and its commissioners may sue and be sued in the courts of this State. It does not in any way militate against their governmental immunity.

It seems clear that Article 8247a, Sec. 12, V.A.T.S., does not deprive the Navigation District of its governmental immunity in cases such as the present case sounding in tort. Such Article authorizes the District to enter into an agreement with the purchasers of its obligations and to keep the improvements and facilities pledged to the payment thereof, insured against loss by fire, water, flood, and other hazards insured against by private companies operating similar properties, 'for the benefit of the holders of such obligations.' (emphasis supplied) It does not purport to create a new liability on the part of the district nor to deprive it of its governmental immunity. It merely authorizes the procuring of insurance against a liability recognizable by law. Had the State Legislature desired to subject navigation districts to tort liability it could and should have done so in language of clear and unmistakable import. See Texas Prison Board v. Cabeen, Tex.Civ.App., 159 S.W.2d 523, writ ref., and authorities there cited.

It is equally clear that the District did not waive its governmental immunity nor was it estopped to claim the same by reason of having taken out a liability insurance policy. It is well settled that waiver and estoppel presuppose the existence of legally enforceable rights which, but for the existence of intervening rights and defenses, would permit recovery. Waiver and estoppel are defensive in nature and operate to prevent the loss of existing rights. They do not operate to create liability where it does not otherwise exist. Washington National Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854; Massachusetts Bonding & Ins. Co. v. Dallas Steam Laundry & Dye Works, Tex.Civ.App., 85 S.W.2d 937, writ ref.; Southland Life Ins. Co. v. Vela, 1949, 147 Tex. 478, 217 S.W.2d 660; 31 C.J.S. Estoppel § 63, p. 397; 22 Tex.Jur.2d, Estoppel, Sec. 2, p. 661. While there may be some cases in other jurisdictions which hold that recovery may be had in a tort action within the limits of a comprehensive liability insurance policy taken out by a defendant claiming governmental immunity, the decision in this State and in the majority of the states of the Union hold to the contrary. See McGrath Building Co. v. City of Bettendorf, 248 Iowa 1386, 85 N.W.2d 616, and annotations...