Sayers v. Bullar

• Court: Virginia Supreme Court
• Writing for the Court: GREGORY, Justice
• Citation: Sayers v. Bullar, 180 Va. 222, 22 S.e.2d 9 (1942)
• Decision Date: 12 October 1942
• Parties: SAYERS. v. BULLAR et al.

180 Va. 222

22 S.E.2d 9

SAYERS.

v.BULLAR et al.

Supreme Court of Appeals of Virginia.

Oct. 12, 1942.

Error to Circuit Court, Smyth County; Walter H. Robertson, Judge.

Action by John G. Sayers against G. W. Bullar and another to recover property damages. To review a judgment dismissing the action, plaintiff brings error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, and SPRAT-LEY, JJ.

L. P. Summers and L. P. Summers, III, both of Abingdon, for plaintiff in error.

B. L. Dickinson, of Marion, for defendants in error.

GREGORY, Justice.

The plaintiff in error, who was the plaintiff below, instituted his action by declaration against G. W. Bullar and Dixie Shumate to recover damages alleged to have been sustained as a result of certain explosions set off by them in the construction of a water pipe line for the State of Virginia. It was alleged that the explosions caused a valuable spring, located on plaintiff's property, to cease to flow.

The defendants filed a special plea and a plea of the general issue. The special plea, in substance, sets forth that the acts complained of were done by the Commonwealth of Virginia through its duly constituted officers, agents and employees and that the defendants, insofar as they did such acts as were alleged, did them only as agents and employees of the Commonwealth.

The plaintiff admitted the facts alleged in the special plea but excepted thereto upon the ground that it stated no defense to the action. He moved the court to strike it out. The exception and motion were overruled by the court and the action was dismissed, with leave granted the plaintiff to amend his declaration and make sufficient allegations of negligence against the defendants.

The plaintiff filed an amended declaration, to which the defendants demurred, and the court sustained the demurrer and dismissed the action because there was no proper allegation of negligence.

The court, in its first written opinion, in effect held that the action amounted to one against the State because the acts charged against the employees admittedly were the acts of the State and it could not be sued without its consent. The State was not a party.

The pleadings disclose that the plaintiff was the owner of a farm and home and upon the farm were the usual outbuildings. A bold spring was located on the land from which the necessary water for his home and general farm use was provided. The Commonwealth of Virginia had established a fish hatchery near by, and in order to secure the necessary water to operate it, the defendants, who were the agents of the Commonwealth, were engaged in laying a pipe line from another spring, which belonged to the Commonwealth, over its land to the fish hatchery. This pipe line was to be laid at one point just across the road from the plaintiff's spring and within 30 feet of it. It was being laid through limestone rock and it became necessary to blast the rock with explosives to lay the pipe. Before the blasts were put off, the plaintiff warned the defendants that the blasts in limestone rock would likely be detrimental to his (plaintiff's) spring. He told them that the pipe line could be laid elsewhere without the use of explosives. The warning and suggestion of the plaintiff were not heeded, the blasts were put off and the plaintiff's spring ceased to flow. Damages for the loss of the spring is the subject matter of this litigation.

The single question to be decided is whether or not the action in effect is an action for tort against the State. If it is, as was held by the lower court, then we must affirm the judgment, but if it is not and only amounts to an action for tort against the defendants individually, we must reverse the judgment.

A State cannot be sued except by its permission, and even if the suit, in form, be against the officers and agents of the State, yet if, in effect, it be against the State, it is not maintainable. Sections 2578 to 2583 of the Virginia Code (Michie) provide the only cases and the procedure in which actions may be maintained against the State. There is no statute which gives a right to anyone to sue the State for tort. Commonwealth v. Chilton Malting Company, 154 Va. 28, 152 S.E. 336. See also Digest of Virginia and West Virginia Reports, Vol. 9, pp. 14 and 15, where the cases are collected and digested.

In Board of Public Works v. Gannt, 76 Va. 455, it was held that agents of a government in possession of specific property under a void title may be proceeded against for its recovery by the true owner and that it is no defense for them to assert that the State has an interest in the property.

This court has never been called upon before to pass judgment upon a case where employees of the State are sued for tort arising from work being done by them for the State. Such is the case at bar.

We expressly withheld decision on the point in Commonwealth v. Chilton Malting Company, supra, where the court held that a tort action could not be maintained against the Commonwealth, but as to the agents who committed the alleged wrong the court reserved decision because those agents were not parties.

In Wilson v. State Highway Commissioner, 174 Va. 82, 4 S.E.2d 746, 750, the individuals who committed the alleged tort had been dismissed as parties in the lower court, and, of course, were not before us when we commented upon Commonwealth v. Chilton Malting Company in these words: "It is clearly seen that this court recognized that the wrongdoers might be sued individually for their torts but decried the notion that the Commonwealth could be sued therefor". This observation was beyond the necessities of the Wilson case and not necessarily a correct comment upon what we actually held in the Chilton case. The State agents or employees were not present as parties in either case and, of course, nothing said by the court could be considered as an adjudication that State agents and employees could be sued for tort.

In West Virginia the point has been decided. In Mahone v. State Road Commission, 99 W.Va. 397, 129 S.E. 320, action was instituted against the State Road Commission and C. H. Price, the contractor, for damages resulting from the negligent performance of work on the highway. A demurrer to the declaration was interposed and sustained as to the State Road Commission but overruled as to Price, the effect of which was to hold that Price might be liable as a wrongdoer but the State Road Commission could not be.

Again the West Virginia court in Downs et al. v. Lazzelle et al, 102 W.Va. 663, 136 S.E. 195, held that if agents of the State go beyond their lawful rights and commit unlawful acts, the State is not liable because it can do no wrong. It cannot be sued for tort. But such agents cannot claim the protection of the State against a suit for their wrongdoing. They, in their individual capacities, are liable.

The Georgia court likewise has spoken on the subject. See Cannon v. Montgomery, 184 Ga. 588, 192 S.E. 206.

In 25 R.C.L, States, par. 50, this is said: "The immunity of the State from suit does not relieve officers of the State from responsibility for illegal trespasses or torts on the rights of an individual, even though they act or assume to act under the authority and pursuant to the directions of the State; * * *"

To like effect is 59 Corpus Juris, States, § 465(b) p. 310.

Many cases are cited by both text-writers to sustain the proposition. For example, the interesting case of United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L. Ed. 171, where Arlington, the historic home place of General Robert E. Lee, was involved. George Washington Parke Custis had devised this estate to Mrs. Lee, the wife of General Lee, for life, with remainder to the plaintiff, George W. P. C. Lee. The question was whether Kaufman and Strong, holding the property as commissioners of the United States under an invalid tax sale, could be proceeded against in ejectment for the recovery of the estate by the lawful owner. The majority of the court were of opinion that the action was maintainable and that...