Livingston v. Regents of New Mexico College of Agriculture and Mechanic Arts

• Decision Date: 21 July 1958
• Docket Number: No. 6399,6399
• Citation: 64 N.M. 306,1958 NMSC 89,328 P.2d 78
• Parties: Sheila LIVINGSTON, a minor, by and through her father and next friend, Howard E. Livingston, and Howard E. Livingston, individually, Plaintiffs-Appellants, v. The REGENTS OF The NEW MEXICO COLLEGE OF AGRICULTURE AND MECHANIC ARTS, a corporation, and Carlos Gallegos, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 78

328 P.2d 78

64 N.M. 306

Sheila LIVINGSTON, a minor, by and through her father and next friend, Howard E. Livingston, and Howard E Livingston, individually Plaintiffs-Appellants, v. The REGENTS OF The NEW MEXICO COLLEGE OF AGRICULTURE AND MECHANIC ARTS, a corporation, and Carlos Gallegos Defendants-Appellees.

No. 6399.

Supreme Court of New Mexico.

July 21, 1958.

Frank O. Westerfield, Adams & Foley, Albuquerque, for appellants.

Keleher & McLeod, Russell Moore, Albuquerque, for appellees.

SHILLINGLAW, Justice.

The appellant, Sheila Livingston, who was the plaintiff below, was a student at the New Mexico College of Agriculture and Mechanic Arts. While in the college cafeteria on September 14, 1956, she was injured as a result of the alleged negligence of Carols Gallegos, an employee of the defendant college. The student being a minor, this suit was instituted by Howard E. Livingston as her father and next friend, and individually, against the Regents of the New Mexico College of Agriculture and Mechanic Arts and against the said Carlos Gallegos.

The complaint set forth the injury and alleged damages suffered by the plaintiffs as a proximate result of defendants' negligence, and it then further alleged:

'The defendant, A & M Regents, at the time of said incident * * * carried liability insurance with the United States Fidelity and Guaranty Company, fully protecting said defendant and insuring it against liability to plaintiffs, arising out of the facts herein alleged, up to the including the limits of the policy issued by said company, which policy was and, at all times material hereto, has been in full force and effect, Plaintiff does not know the limits of said policy and defendant, A & M Regents and its insurance carrier have failed and refused to disclose the same.

'By reason of the premises, plaintiff, Sheila Livingston, has been damaged in the amount of $50,000.00.'

and then prayed for relief as follows:

'Wherefore, plaintiff, Sheila Livingston, prays judgment against the defendants, jointly and severally, in the amount of $50,000.00, except as to the defendant, A & M Regents, in the event said liability insurance policy has limits of less than the amount prayed for under this complaint, plaintiff prays judgment only for an amount which * * * will equal said policy limits.'

To this complaint the defendant Board of Regents filed a motion to dismiss, contending that the defendant Board was immune from suit.

The college was established by Art. XII, Sec. 11 of our Constitution, and Sec. 73-26-3, N.M.S.A.1953, provides that:

'* * * The management of said college * * * the care and preservation of all property, of which such institution shall become possessed, * * * the disbursement and expenditure of all moneys provided for by this act, shall be vested in a board of five regents. Said five regents shall possess the same qualifications as required for the regents of the University of New Mexico. Said regents * * * shall constitute a body corporate, with the name and style of (the) The Regents of the New Mexico College of Agriculture and Mechanic Arts, with the right as such of suing and being sued, of contracting and being contracted with * * *.'

It was developed through interrogatories that the Board of Regents carried a comprehensive general liability insurance policy with the United States Fidelity and Guaranty Company, and that the policy included indemnity limits of $50,000 for each person and $250,000 for each accident.

We have a well established rule in this state that a state institution, as is the defendant Board of Regents in this case, is not subject to an action in damages for the negligence of its employees. Vigil v. Penitentiary of New Mexico, 52 N.M. 224, 195 P.2d 1014; see also Eyring v. Board of Regents of New Mexico Normal Univ. at Las Vegas, 59 N.M. 3, 277 P.2d 550; Lucero v. State Highway Dept., 55 N.M. 157, 228 P.2d 945; Dougherty v. Vidal, 37 N.M. 256, 21 P.2d 90.

The appellants recognize this rule but argue strenuously that a suit demanding judgment only to the extent that the state agency is protected by liability insurance does not violate the rule of immunity.

The sole question in dispute upon this appeal is whether or not the policy of insurance issued by United States Fidelity and Guaranty Company so affects the situation as to permit the present suit to proceed to judgment against the Regents, a judgment which would be entered merely for the purpose of fixing the amount of damages which the appellants would be entitled to collect from the insurance carrier under the terms of said policy. This precise question has never been before this court.

Appellants rely most heavily upon Thomas v. Broadlands Community Consol. School Dist., 348 Ill.App. 567, 109 N.E.2d 636; Tracy v. Davis, D.C.E.D.Ill., 123 F.Supp. 160; and Williams v. Town of Morristown, 32 Tenn.App. 274, 222 S.W.2d 607, modified, 189 Tenn. 124, 222 S.W.2d 615.

The Broadlands case held that an action in tort by a student injured on a playground would lie against the defendant school district inasmuch as the district carried liability insurance. While upholding the historical rule of sovereign immunity from suit, the Illinois court reasoned that liability insurance, to the extent that it protects public funds, removes the reason for such immunity.

Tracy v. Davis arose on a motion to dismiss a personal injury action as against a defendant school district for the reason that the district was immune from tort liability and the complaint made no allegation that the defendant school district had insurance or other means of paying the sought judgment without impairment of public funds. By analogy to an Illinois case involving a charitable corporation, the Illinois Federal District Court held that the immunity of the school district against dissipation of public funds in paying a tort judgment was no defense to suit. The court reasoned that the plaintiff should not individually suffer his loss where a judgment could be paid from other than public funds, and that the suit could proceed to judgment, which judgment could then only be satisfied from such other funds.

The Williams case, representing the so-called Tennessee rule, held that a municipal corporation could be held liable in damages in a negligence action even where the undertaking was of a governmental rather than proprietary nature, but that any judgment could be satisfied solely from insurance funds. Compare Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480.

As argued by appellees, however, the majority of the courts seem to hold contrary to the authorities relied upon by appellants.

Construing Maryland law, the Federal District Court sitting in that state held in Jones v. Scofield Bros., 73 F.Supp. 395, that the fact that the State Roads Commission had procured liability insurance covering the operation of a ferryboat did not establish legislative permission for tort suits against the state agency. The existence of insurance taken out by a state agency not otherwise liable in tort suits was held insufficient to create tort liability without express legislative authority, even though counsel for the insurer participated in the defense of the case.

The Supreme Court of Pennsylvania held in Kesman v. School District of Fallow-field Tp., 345 Pa. 457, 29 A.2d 17, that a school district did not waive its...