Martin v. Sheppard

• Decision Date: 16 April 1947
• Docket Number: No. A-1080.,A-1080.
• Parties: MARTIN et al. v. SHEPPARD et al.
• Court: Texas Supreme Court

Page 810

201 S.W.2d 810

MARTIN et al. v. SHEPPARD et al.

No. A-1080.

Supreme Court of Texas.

April 16, 1947.

Rehearing Denied May 21, 1947.

Original mandamus proceeding by Mrs. Dora Martin and others against Honorable George H. Sheppard and others to compel the Highway Commission to approve a claim based on a judgment against the state and to compel the comptroller to issue warrants in payment of judgment.

Writ granted.

E. B. Pickett, Jr., of Liberty, Powell, Wirtz, Rauhut & Gideon and J. A. Rauhut, all of Austin, and Bradford Pickett, of Liberty, for relators.

Grover Sellers, Former Atty. Gen., of Sulphur Springs, Douglas E. Bergman, Former Asst. Atty. Gen., of Dallas, Geo. W. Barcus, of Austin, Price Daniel, Atty. Gen., Fagan Dickson, First Asst. Atty. Gen., and Charles E. Crenshaw, Asst. Atty. Gen., for respondents.

HICKMAN, Justice.

The purpose of this original proceeding is the collection of a judgment held by relators against the State. The 44th Legislature, 1935, at its regular session, passed an enabling act granting to Mrs. Dora Martin and her five children permission to bring suit against the State in the district court of Liberty County for damages for injuries resulting in the death of A. J. Martin, husband of Mrs. Martin and father of her children, while on duty in the employ of the State Highway Department, Acts of 44th Leg.Ch. 217, p. 511. Thereafter, suit was instituted in that court by Mrs. Martin and her children against the State resulting in a judgment in favor of her and two of her children, Buster and Jack Martin, for damages in the sum of $12,500, apportioned by the jury between the three of them. The 49th Legislature, 1945, passed a special act (Ch. 263, p. 410) setting forth in full the judgment of the district court of Liberty County and appropriating money from the State Highway fund in the State Treasury, not otherwise appropriated, to pay same. The act authorized and directed the Comptroller of Public Accounts to issue warrants on the State Treasury for the satisfaction of such judgment. Upon the advice of the Attorney General that the judgment was void and that the appropriating act was unconstitutional, the Highway Commission refused to approve the claims and the Comptroller refused to issue the warrants, whereupon this action was instituted in this court by Mrs. Martin and her two sons, the judgment creditors, to compel by mandamus the Highway Commission to approve their claims and the Comptroller to issue warrants in payment of their judgment with interest as provided therein.

It is disclosed by the record that the judgment rests upon a finding of negligence on the part of an employee of the Highway Department. In the trial court the State filed demurrers, a motion for an instructed verdict and a motion for judgment non obstante veredicto, each presenting the contention that neither the State nor its agency, the Highway Commission, was liable for personal injuries arising from the negligence of an employee. The trial court overruled these demurrers and motions and entered judgment upon the verdict. The State gave notice of appeal, but did not file its record within the time prescribed by law. It then sought to bring the case to the appellate court by writ of error, but the writ was dismissed on motion of relators and the case was affirmed on certificate by the Court of Civil Appeals, State v. Martin, 107 S.W.2d 1089, error dismissed.

The State takes the position that the judgment of the trial court is void. If that court did not have jurisdiction, both of the parties and of the subject matter of the litigation, the judgment is void and subject to attack in this collateral proceeding. If, on the other hand, the court had jurisdiction of the parties and the subject matter, the judgment is not void, however erroneous it may be. The State is not liable for the negligence of its employees while engaged in the performance of a governmental function, unless it has expressly assumed such liability. Martin v. State, Tex.Civ.App., 88 S.W.2d 131, error refused; Brooks v. State, Tex.Civ.App., 68 S.W.2d 534, error refused; State v. Flowers, Tex.Civ.App., 94 S.W.2d 193.

Section 3 of the enabling act reads as follows: "That such suit upon said cause of action shall be tried and determined in the trial and appellate courts, according to the same rules of law and procedure as to liability and defense that would be applicable if such suit were against an ordinary Texas corporation."

Upon the authority of State Highway Department v. Gorham, 139 Tex. 361, 162 S.W.2d 934, we hold that this section is violative of section 3 of Texas Bill of Rights, Vernon's Ann.St.Const., which provides that all men shall have equal rights. It probably offends against other provisions of the Constitution, but no purpose would be served by discussing that question, for granting the invalidity of that particular section, it does not necessarily follow that the judgment is void. We have adopted the rule that, "Where the unconstitutionality of a statute goes only to the merits of the cause of action, and not to the jurisdiction of the court, a judgment in a civil suit based thereon is not void but merely erroneous, and remains effective until regularly set aside or reversed". Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 220. The unconstitutionality of Section 3 went only to the merits of the cause of action.

And, further, it is provided in Section 5 of the act that, if any paragraph, clause, or provision thereof should be held to be invalid or unconstitutional, the validity of the other provisions of the act shall not be affected thereby. Striking from the act the third section, there remains an express permission granted to relators to bring suit in the district court of Liberty County for damages on account of the injuries sustained by A. J. Martin which resulted in his death and the further provision that process might be served upon the Governor and the Attorney General. It cannot be questioned that the legislature had the power to grant relators permission to sue the State and to provide the manner of service. By virtue of that act and by the service of process and the appearance of the State through its Attorney General, the court clearly acquired jurisdiction of the parties to the litigation.

The subject matter of the litigation was a claim for damages in the sum of $30,000, an amount within the jurisdiction of the district court. That court had jurisdiction to pass upon the demurrers urged by the State to the petition and upon the motions of the State for an instructed verdict and for judgment non obstante veredicto. Had the court sustained the demurrers or granted the motions, or either of them, there would have been no question of the validity of its judgment. Since it had the power to sustain the demurrers and grant the motions, it had the power to overrule them. The jurisdiction of a court must be determined, not upon the court's action in deciding the questions presented in a case, but upon the character of the case itself. Jurisdiction is the power to decide, and not merely the power to decide correctly. Security Trust Co. v. Lipscomb County, 142 Tex. 572, 180 S.W.2d 151; Commonwealth of Massachusetts v. Davis, supra. We overrule the contention that the judgment of the trial court in the suit for damages is void for want of jurisdiction of the trial court.

The State advances this proposition: "In a mandamus suit against a public body on a money judgment, the court may refuse the writ if it appears from the...