Morgan v. State, 4218.

• Decision Date: 18 June 1942
• Docket Number: No. 4218.,4218.
• Citation: 170 S.W.2d 648
• Parties: MORGAN v. STATE et al.
• Court: Texas Court of Appeals

170 S.W.2d 648

MORGAN v. STATE et al.

No. 4218.

Court of Civil Appeals of Texas. El Paso. Texas.

June 18, 1942.

Rehearing Denied September 17, 1942.

Appeal from District Court, Travis County; Roy C. Archer, Judge.

Suit by James (Jim) I. Morgan, filed pursuant to legislative permission, against the State of Texas and others to recover damages for personal injuries sustained while working for the State Agricultural Experimental Station of Texas A. & M. College. From a judgment sustaining a general exception to his petition, plaintiff appeals.

Judgment reversed and cause remanded for trial.

Judgment of the Court of Civil Appeals reversed by Supreme Court, 170 S.W.2d 652.

Alfred J. DuPerier and Adams, Hart & Daughtry, all of Beaumont (M. G. Adams, of Beaumont, of counsel), for appellant.

Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, Wm. J. Fanning, and Edgar Pfeil, Asst. Attys. Gen., for appellees.

PRICE, Chief Justice.

This is an appeal by James I. Morgan from the judgment of the District Court of Travis County sustaining a general exception to his petition urged by the defendant State of Texas. Permission was duly granted to Morgan to sue the State prior to the institution of this action. An extended statement of the allegations of the petition is unnecessary. A cause of action was, beyond question, stated, unless the State was not subject to the obligation, the breach of which was charged in the petition. In consideration of the question involved in this case all allegations of matters of fact must be taken as true.

Morgan was employed by the State through R. H. Wyche, Superintendent of the Experimental Station at Amelia, Texas. The contract was verbal. It is averred that under and by virtue of such contract the State impliedly and as a matter of law agreed and obligated herself to use ordinary care to furnish him with reasonably safe appliances with which to do and perform the work of his employment; that Wyche, acting in the capacity aforesaid, furnished him a certain spray pump that was not in a reasonably safe condition; that while in the course of his employment he was carrying same in a proper manner, that same suddenly squirted the spray into his eyes. As a result, the sight of one eye was destroyed, to his damage.

If the State, under the premises of the petition, owed those nondelegable duties to Morgan which an ordinary employer owes to its employee, then the petition aptly charges a breach or breaches thereof proximately causing damage to plaintiff.

Counsel for the appellant assert as the proposition upon which the appeal is based: That the State is liable both for its contract and for the breach of its contract, the same as an individual. Appellant formulates the question posed by the appeal as follows: Is the State bound by its contract of employment voluntarily entered into with appellant and is she legally liable for the damages directly resulting from the breach of such contract?

It is conceded that the State was acting in the premises in a governmental capacity, as distinguished from a proprietary capacity; further, that the State is not liable in an action for naked tort unconnected with her contract.

The Attorney General asserts this counter-point: "Since appellees were engaged in a governmental matter at the time appellant received his injury, the State of Texas is not liable for the damages or injuries suffered by him while he was working for the Government."

If the proposition asserted by the counter-point by the State is sound, it is thought the following is deducible therefrom: The State owes no obligation to an employee working for her in the discharge of her governmental functions other than the payment of the stipulated compensation.

Before a discussion of the precedents cited by the respective parties, we think it well to discuss briefly the nature, quality and extent of the duties of an employer imposed by the contract of employment or arising as a consequence thereof. In this discussion the question of the power of the officers, agents and employees of the State to impose obligations upon her by their acts will not be considered.

In 29 Tex.Jur. p. 152, sec. 84, it is said: "The following duties of the employer are nondelegable so that if he entrust performance of them to a representative he is none the less liable for his representative's default: (1) the furnishing and maintenance of an adequate force of competent workmen, and of physical appliances for carrying on the work, in proper condition and reasonably safe; (2) inspection of places and appliances, which is a corollary of the duty of maintenance; (3) regulation of the work by general rules; and (4) warning employees generally of dangers where this duty exists."

See also Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 135, 70 S.W.2d 397, 401.

Deducible from the authorities cited in support of the text is the further proposition that the duty to exercise ordinary care as to the matters enumerated is inescapable. The employer is an insurer that such duty be performed. It is a duty personal to the employer. It is in the nature of a warranty. Hough v. Texas & P. Ry. Co., 100 U.S. 213, 25 L.Ed. 612; Fort Worth Elevators Co. v. Russell, supra.

The case of State v. Elliott, Tex.Civ. App., 212 S.W. 695, writ refused, is strongly relied upon by appellant. This case has much in common with the case here. There, as here, the liability of the State to an employee was involved; there, as here, the breach of a nondelegable duty of an employer was the basis of the obligation sought to be enforced against the State. There is this distinction, if it be a true distinction: That there the State was engaged in activities of a proprietary character — the operation of a railroad as a common carrier. Here, the activities of the State were governmental in character. In State v. Elliott the State was held liable for its failure to furnish a reasonably safe push car for the transportation of the plaintiff to the place of work. The opinion was largely an adoption of the brief of appellee. Two theories seem to have been adopted as sustaining liability: (1) That the State was liable for the negligence or tort, because the State owned and operated the railroad and was thus engaged in a proprietary work and was liable for its tort the same as the railroad would have been if privately owned and operated; and (2) that the State was liable because it had entered into a contract of employment with Elliott and had breached its implied agreement of the contract to use ordinary care to furnish him with a reasonably safe push car. Elliott having, by his express pleading, elected to assert his cause of action for such breach of contract.

The case of State v. Elliott, supra, has been frequently cited and distinguished, but so far as we have been able to discover, has neither been overruled nor limited, unless the case of State v. Brannan, Tex.Civ.App., 111 S.W.2d 347, in which a writ of error was refused by the Supreme Court, is a limitation thereon. This latter case will be hereafter discussed.

The cases of Brooks v. State, Tex.Civ. App., 68 S.W.2d 534, writ refused, Martin v. State, Tex.Civ.App., 88 S.W.2d 131, writ refused, Matkins v. State, Tex.Civ.App., 123 S.W.2d 953, writ dismissed, and State v. Brannan, Tex.Civ.App., 111 S.W.2d 347, are each cited, or might well be cited, as sustaining the general position of the State to the effect, in substance, that the State is not, in the absence of constitutional or statutory provision therefor, liable in tort for the negligence of its officers or agents. The soundness and correctness of this proposition is frankly conceded by appellant.

Brooks v. State, supra , was an action by an employee of the State Highway Department to recover damages resulting from the negligence of a fellow employee in backing a truck and thus injuring him. It was held that the trial court properly sustained a general demurrer to the petition. In the opinion it was said, referring to State v. Elliott: "This recovery was based clearly, we think, upon the principle that the operation of such enterprise was not a governmental function, but industrial or proprietary in character; and the holding in that case is not in derogation of the well-established rules relating...