Missouri Pacific R. Co. v. Brownsville Nav. Dist.
| Decision Date | 22 April 1970 |
| Docket Number | No. B--1848,B--1848 |
| Citation | 453 S.W.2d 812 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. BROWNSVILLE NAVIGATION DISTRICT, Respondent. |
| Court | Texas Supreme Court |
Hardy & Sharpe, Eduardo R. Rodriguez, Brownsville, for petitioner.
Kleberg, Mobley, Lockett & Weil, Leslie S. Lockett, Corpus Christi, for respondent.
The question in this case is sovereign immunity from suit. Uncie Wells, a brakeman for Missouri Pacific Railroad Company, lost his life as the result of an accident that occurred on December 22, 1967. His statutory beneficiaries sued MoPac and Lallier & Co. for damages, claiming that the death of Wells was proximately caused by defendants' negligence. According to the allegations of the petition, Wells was knocked from a ladder on the train by a crane that was owned by Lallier & Co. and that had been left too near the track over which the train was moving.
MoPac filed a cross-action against Brownsville Navigation District of Cameron County, Texas, seeking indemnity for any sums it was adjudged to pay. As a basis for its claim of indemnity, MoPac alleged a written track agreement providing 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 then in effect with respect to the subjects of clearances or safety margins in the vicinity of railroad tracks.' MoPac further alleged that District placed, or permitted the placement of, a mobile dragline near the track in violation of Article 6559b, 1 and that this was the sole cause of Wells' death.
District filed a pleading labeled 'Plea to the Jurisdiction, Plea in Abatement and Motion to Dismiss.' It there prayed that the cross-action be abated and dismissed on the ground that it is a political subdivision of the State performing governmental functions and that consent to its being sued had not been given. The trial court severed the claims asserted by MoPac against District, sustained the plea to the jurisdiction, and dismissed the cross- action. The Court of Civil Appeals affirmed. 445 S.W.2d 818. We reverse the judgments of the courts below and remand the case to the district court.
It is necessary to distinguish between two different governmental immunities: (1) immunity from suit without consent even though there is no dispute as to liability of the sovereign; and (2) immunity from liability even though consent to the suit has been granted. See 27 Tex.Law.Rev. 337. We are concerned here only with the former. District was originally created under the authority of Article 16, Section 59, of the Texas Constitution, Vernon's Ann.St., and Chapter 5 of the General Laws passed by the Legislature in 1925. Acts 1925, 39th Leg., p. 7, ch. 5. Four years later the Legislature formally created and validated District and provided, among other things, for the election of the navigation and canal commissioners. Acts 1929, 41st Leg., p. 410, ch. 192. Another statute which by its terms formally creates District and validates certain of its actions was passed in 1931. Acts 1931, 42nd Leg., Sp.Laws, p. 5, ch. 3. Each of the validating acts makes it clear that District would, except as otherwise provided, continue to be governed by the statute under which it was originally created, and no change was made with respect to suits against District. Section 46 of the 1925 Act, which is now Section 46 of Article 8263h, provides 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.'
District points out that there are other statutes in which the Legislature's intention to give...
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