Missouri Pac. R. Co. v. Brownsville Nav. Dist.

• Decision Date: 30 September 1969
• Docket Number: No. 504,504
• Citation: 445 S.W.2d 818
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. BROWNSVILLE NAVIGATION DISTRICT, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 818

445 S.W.2d 818

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. BROWNSVILLE NAVIGATION DISTRICT, Appellee.

No. 504.

Court of Civil Appeals of Texas Corpus Christi.

Sept. 30, 1969.

Rehearing Denied Oct. 23, 1969.

Hardy & Sharpe, Eduardo R. Rodriguez, Brownsville, for appellant.

Kleberg, Mobley, Lockett & Weil, Leslie Lockett, Corpus Christi, for appellee.

OPINION

GREEN, Chief Justice.

This appeal involves the question whether the trial court properly ordered appellant's Third Party Action against appellee dismissed on the ground of GOVERNMENTAL IMMUNITY FROM SUIT.

Appellant Missouri Pacific Railroad Company, hereafter some time called Railroad, was sued, along with another defendant (not a party to this appeal). Plaintiffs (also not parties to the appeal) sought to recover damages for the death of an employee of Railroad claimed to have been knocked from a moving box car by a crane which was too near the railroad track for adequate clearance for a man riding as was deceased. Railroad with leave of the court filed a third party action against appellee Brownsville Navigation District, hereafter sometimes called District, in which it alleged a written track agreement between Railroad and District which provided that District 'would not permit to be constructed, placed, or erected, over, under, or adjacent to any of the tracks on the lands of the District, any structure, object, or obstruction which would violate any statute, law, or regulation than in effect with respect to the subjects of clearances or safety margins in the vicinity of railroad tracks.' Railroad further alleged that contrary to such agreement, District 'placed or permitted the placement of a mobile dragline' near the track in violation of Article 6559b, Texas Civil Statutes, and that one of Railroad's employees was fatally injured 'caused solely by the dragline being placed too near the tracks in violation of the statute referred to * * *.' Making reference to plaintiff's suit, Railroad prayed that if it be held liable in damages, it should have indemnity from District for breach of said contractual agreement.

The Navigation District, on the basis of Governmental immunity from suit, challenged the jurisdiction of the court as to said District, and moved to abate and dismiss the action against it. This motion was sustained, the claim as to the Navigation District was severed from the other claims in the suit under Rules 41 and 174(b), Texas Rules of Civil Procedure (since only the defendant Railroad claimed against District), and judgment was rendered dismissing the severed cause against appellee District. Appeal is from such judgment.

Appellant's first point of error complained of the trial court no giving appellant the opportunity of proving that there was a valid and enforceable contract between Railroad and District. Railroad's petition against District expressly plead that District was 'a governmental entity.' The material portions of the contract relied on by Railroad were plead by it. The record establishes that this was a hearing on the strength of the facts alleged in the pleadings, and that the court assumed the truth of all factual allegations. See Torres v. Aransas County Navigation District No. 1, syl. (1), Tex.Civ.App., 346 S.W.2d 903, n.w.h. Railroad could not have offered proof of any facts except to sustain its allegations, and since the truth of these were assumed by the court, the lack of any evidence (and no such evidence was offered by Railroad) was not prejudicial to appellant. The judgment states that at the hearing on District's motion, both parties presented arguments and authorities which were taken under advisement, and that the ruling was made after the court had considered same. It is well established that a navigation district such as appellee is a governmental agency, and as such is entitled being sued in the courts without its consent being sued in the court without its consent as is any other agency of the State. Art. 8263e, Sec. 90; Torres v. Aransas County Navigation District No. 1, supra; Torres v. Owens, Tex.Civ.App., 380 S.W.2d 30, wr. ref. n.r.e.; Jones v. Texas Gulf Sulphur Co., Tex.Civ.App., 397 S.W.2d 304, wr. ref. n.r.e. ¹ Appellant's first point is overruled.

Appellant in its second and third points states that (2nd) it is not necessary to get consent from a governmental unit to institute a suit against it based on breach of a valid and enforceable contract, and (3rd) that the mere are of appellee in entering into a valid and enforceable contract amounted to the giving of consent to suit. Appellee answers that the doctrine of immunity from suit applies to actions on a contract, and the making of the contract did not amount to consent to suit.

Cases cited by appellant on its claim that the doctrine of governmental immunity from being sued without its consent does not apply to suits based on contract are State v. Elliott, Tex.Civ.App., 212 S.W. 695, n.w.h., and Fort Worth Nat. Bank v. State, Tex.Civ.App ., 158 S.W.2d 885, wr. ref. w.m. Both of these cases involved litigation against the State based, in part at least, on contractual relations, and in both, as expressly stated in the opinions, the State through the Legislature had passed enabling legislation consenting to the litigation.

Appellant in its brief argues that '* * * the Trial Court dismissing Appellant's cross-action at this time is telling Appellant that it had no valid and enforceable contract, that in reality the only one who is bound by this agreement is that MISSOURI PACIFIC RAILROAD COMPANY. * * *' On This appeal we are concerned with the rule of immunity of a state agency from suit without its consent first being had, and no with any rule of liability. As stated in 27 Tex.Law Rev. 337:

'In attempting to assert a claim against the state or one of its political subdivisions, a claimant may be obstructed by two rules of governmental immunity. First, there is the rule that the sovereign cannot be sued in its own courts without its consent. (Citing authorities) Although the claim asserted may be one on which the sovereign acknowledges liability, this rule precludes a remedy until the legislature consents to the suit. ...