Shear v. State

• Decision Date: 01 February 1929
• Docket Number: 26309
• Citation: 223 N.W. 130,117 Neb. 865
• Parties: WILLIAM F. SHEAR, APPELLANT, v. STATE OF NEBRASKA, APPELLEE
• Court: Nebraska Supreme Court

223 N.W. 130

117 Neb. 865

WILLIAM F. SHEAR, APPELLANT, v. STATE OF NEBRASKA, APPELLEE

No. 26309

Supreme Court of Nebraska

February 1, 1929

APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Where the Legislature has not by law provided for the recovery by an individual or corporation against the state for damages caused by the negligence of an officer, agent or employee of the state, there can be no recovery for such negligence until the Legislature expressly by law makes the state liable therefor.

A resolution by one branch of the Legislature, authorizing an individual to maintain action against the state to recover damages caused by the negligence of a state's employee does not render the state liable for the negligent acts of its employee, in the absence of a statute making the state liable therefor.

Appeal from District Court, Dodge County; Button, Judge.

Action by William F. Shear against the State. Judgment sustaining a demurrer to the petition, and plaintiff appeals. Affirmed.

E. J. Robins and Charles H. Yost, for appellant.

O. S. Spillman, Attorney General, and Lloyd Dort, contra.

Heard before GOSS, C. J., ROSE, DEAN, EBERLY and DAY, JJ., and BEGLEY and RAPER, District Judges.

OPINION

RAPER, District Judge.

This is an action for damages sustained by plaintiff, caused by the alleged negligence of the agents of the state in placing an obstruction in a highway which was exclusively under the control and maintenance of the state through its highway department, and thereby causing plaintiff's car to overturn and injure him and his car. The action was authorized by a resolution of the senate, which purports to give authority to the plaintiff to prosecute his suit to final judgment in the district court for Dodge county, for the purpose of ascertaining and adjudicating his claim and the liability of the state for the payment thereof. The state interposed a general demurrer, that the petition does not state a cause of action against the defendant. This demurrer was sustained and plaintiff's action dismissed. Plaintiff appeals.

The district court did not state the grounds upon which the demurrer was sustained, but appellant in his brief states that the court held that one branch of the legislature was without authority to waive the sovereignty of the state; that the resolution gave only the right to sue, and did not take away from the state the defense of sovereignty; that there is no right of action at common law and no constitutional provision or statute making the state liable.

It may be laid down as a universal rule that a state is not liable to a person injured by the negligence of its employees, unless there is a statute or constitutional provision permitting recovery therefor, so it becomes necessary to determine what authority the legislature and Constitution have granted as to such demands.

Section 22, art. V. of the Constitution, provides: "The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suits shall be brought."

This provision is not self-executing and requires legislative action to make it effective, and no suit could be maintained against the state until the legislature, by law, made provision therefor.

In 1877 the legislature passed an act entitled "An act to provide in what courts the state may sue and be sued," being section 1100, Comp. St. 1922. It grants jurisdiction to the district courts to hear and determine: "First. All claims against the state filed therein which have previously been presented to the auditor of public accounts, and have been in whole or in part rejected or disallowed. Second. All claims or petitions for relief that may be presented to the legislature, and which may be by any law, or by any rule or resolution of the legislature, or either house thereof, referred to either of said courts for adjudication." The plaintiff claims that this statute, and the resolution of the senate, waive the defense of sovereignty and is sufficient to give right of recovery to the plaintiff on his cause of action for negligence.

This precise question has not been decided by this court, but there are a number of decisions which the appellant insists control this case and give to him the right to recover. He cites Lancaster County v. State, 74 Neb. 211, 104 N.W. 187, Lancaster County v. State, 97 Neb. 95, 149 N.W. 331, Benda v. State, 109 Neb. 132, 190 N.W 211, and City of Chadron v. State, 115 Neb. 650, 214 N.W. 297. The first two of these cases were brought against the state to recover money which had been erroneously paid under mistake of fact to the state treasurer, and the Commonwealth Power Co. v. State, 104 Neb. 439, 177 N.W. 745, was likewise a case to recover from the state money which had been paid to the secretary of the state board of irrigation under a mistake of fact. The court held in each of those cases plaintiff could recover the money so paid to the state, under the facts shown. The sovereignty of the state does not appear to have been questioned in the opinions in those cases. The Benda case was decided against him, solely on the ground that the state's agents were trespassers, were not engaged in the state's business at the time the wrong was committed, and therefore the state was not liable. In the City of Chadron case, the city water conduit was...