Smith v. Cooper

• Decision Date: 18 September 1970
• Citation: 45 A.L.R.3d 857,91 Adv.Sh. 287,256 Or. 485,475 P.2d 78
• Parties: , 45 A.L.R.3d 857 Phyllis L. SMITH, as Executrix of the Estate of Clinton C. Smith, Deceased, Appellant, v. Forrest COOPER (State Highway Engineer); L. C. Smitton (District Maintenance Superintendent); and A. F. Parson (Division Engineer), Respondents.
• Court: Oregon Supreme Court

Page 78

475 P.2d 78

256 Or. 485, 45 A.L.R.3d 857

Phyllis L. SMITH, as Executrix of the Estate of Clinton C Smith, Deceased, Appellant, v. Forrest COOPER (State Highway Engineer); L. C. Smitton (District Maintenance Superintendent); and A. F Parson (Division Engineer), Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 3, 1969.

Reargued Dec. 8, 1969.

Decided Sept. 18, 1970.

Harry A. Slack, Jr., Coquille, argued the cause for appellant. On the briefs were Slack & Slack, Coquille.

Norma Paulus, Salem, argued the cause for respondents. With her on the brief were Clark & Marsh, Salem.

Before PERRY,* C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN,** DENECKE and HOLMAN, JJ.

DENECKE, Justice.

The plaintiff executrix brought this action to recover damages for the death of her testator which occurred when a car in which he was riding went off the highway and crashed. The defendants are State Highway Commission officials and employees and their alleged negligence was in planning, establishing and maintaining the highway at the place of the accident. The defendants moved to quash the service of summons upon the ground that the court had no jurisdiction because the defendants as officers and agents of the state are immune from action. The motion was allowed and plaintiff appeals.

Some procedural problems are present which we believe should be discussed although the parties did not raise them.

This appeal is from an order quashing service of summons. We have previously expressly approved the practice of both the state and its employees raising their defense of immunity by filing either a demurrer or a motion to quash. Hanson v. Mosser, 247 Or. 1, 5--6, 427 P.2d 97 (1967). When the defense of immunity is raised the issue is whether the complaint states a cause of action or does it show on its face that the defendants are immune from suit because they are either the state or state officials or employees entitled to immunity.

The sufficiency of the allegations of a complaint is normally tested by a demurrer. We have held in a case not involving immunity that a motion to quash service is not a proper method to determine the sufficiency of a complaint. State ex rel. Sullivan v. Tazwell, 123 Or. 326, 333, 262 P. 220 (1927), cert, granted 276 U.S. 613, 48 S.Ct. 324, 72 L.Ed. 731, dismissed 277 U.S. 575, 48 S.Ct. 527, 72 L.Ed. 995 (1928).

We conclude that to be consistent with the general rules of pleading the proper procedure to raise the issue of immunity should be by the filing of a demurrer. The holding of Hanson v. Mosser, supra (247 Or. 1, 427 P.2d 97), to the contrary is overruled.

Very recently in Ter Har v. Backus, Or., 473 P.2d 143 (1970), we reviewed decisions discussing appeals brought both from orders granting motions to quash and sustaining demurrers. In Ter Har v. Backus, supra, we dismissed the appeal from an order granting a motion to quash.

In that case it was obvious that the order quashing the service did not terminate the action because the statute of limitations could not have run on the cause of action for property damage. We stated in effect that if the order quashing service did effectively dispose of the action we would probably not dismiss that particular appeal. We did announce, however, that in the future we would not entertain an appeal from an order quashing service, but only from a final judgment. We give prospective application to a similar rule in this case. Because our opinion in Hanson v. Mosser, supra (247 Or. 1, 427 P.2d 97), probably caused defendant to challenge the complaint in this case with a motion to quash instead of a demurrer, we will treat the motion as did the parties and the trial court as asserting the contention of the defendants that the complaint did not state a cause of action against them because they were immune from liability. Hanson v. Mosser, supra (247 Or. 1, 427 P.2d 97), also probably caused the plaintiff to appeal from the order quashing service rather than an order of dismissal. In the future that contention of immunity must be raised by a demurrer and the appeal must be taken from a final judgment. Ter Har v. Backus, supra.

I Is This in Reality an Action Against the State?

The facts to be considered are al alleged in the complaint. The defendant Cooper was the State Highway Engineer. The defendant Smitton was the acting District Maintenance Superintendent of the Highway Commission for District 5--B. The defendant Parson was the acting Division Engineer of the Commission for Division 5.

The automobile in which the decedent was riding was driving north on Highway 74 approaching a junction at which the driver intended to turn and proceed westerly on Highway 30. At the junction, allegedly due to the negligence of the defendants, the vehicle continued to the north instead of turning and went off the road and crashed.

All of the defendants were alleged to be negligent in designing the road so that a driver was not aware that he was to turn west rather than to continue straight, in failing to place a guardrail on the north edge of the turn, in failing to post any or adequate signs warning of the dangerous turn, in posting misleading and distracting signs, in designing a tight, unbanked turn, in failing to provide lighting, in painting the center stripe to indicate that traffic was to continue straight ahead, in failing to provide reflectors indicating the turn, and in providing a left turn sign which was not uniform with other signs at other junctions in Oregon.

This cause of action arose before the effective date of the Oregon Tort Claims Act, ORS 30.260--30.300. However, under that Act some of the problems present in this appeal still remain.

The defendants contend that although this action is nominally against state officials and employees, it is in reality an action against the State of Oregon and the court does not have jurisdiction because the state has not waived its sovereign immunity. The defendants primarily rely upon Bacon v. Harris, 221 Or. 553, 352 P.2d 472 (1960), in support of their contention. The plaintiff in that case was injured when she fell on a stairway while attending a basketball game at the University of Oregon's McArthur Court. She named as defendants the Department of Higher Education, the nine members of the State Board of Higher Education, the University President and Athletic Director and a university employee who had charge of the ushers at McArthur Court. The trial court set aside a judgment for the plaintiff and we affirmed.

We there stated, '(a)though it is not named as a defendant we think this is, in legal effect, an action against the State Board of Higher Education and will so treat it.' 221 Or. at 555, 352 P.2d at 473. We held that the State Board had governmental immunity and, therefore, the action could not be maintained against it. A reading of the entire opinion makes it clear that the above- quoted statement was intended to refer only to the action against the nine members of the State Board. The opinion closes:

'We are also satisfied that under the rule announced in Antin v. Union High School Dist. No. 2, 130 Or. 461, 280 P. 664, the case can not be maintained against the individual defendants. There is no allegation that any of them committed any act of negligence contributing to plaintiff's injuries.' 221 Or. at 557, 352 P.2d at 474.

Plaintiff's action is not, in effect, an action against the State of Oregon. The action is against the defendants individually; any liability established will be a personal liability against the defendants as individuals; and the government's property and activities are not directly threatened. This action is maintainable unless the defendants as officers, agents or employees of the state have immunity because of their relationship to the state.

II

Did the Legislature Lift the Immunity for State Employees by

Authorizing the Purchase of Liability Insurance

for Such Employees?

The plaintiff contends that ORS 243.110 ¹ authorizing state agencies to purchase insurance to protect its officers and employees against liability and the Highway Commission's purchasing of such insurance lifted any immunity the defendants might have had. ²

Plaintiff relies upon Vendrell v. School District No. 26C, 226 Or. 263, 360 P.2d 282 (1961). Plaintiff's reliance upon Vendrell is misplaced:

'* * * In Vendrell we held that ORS 332.180, authorizing school districts to procure liability insurance, was a 'general law' waiving sovereign immunity and, therefore, Art. IV, § 24, of the Oregon Constitution was satisfied. Art. IV, § 24, provides:

"Provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed." Hale v. Smith, Or., 460 P.2d 351, 354 (1969).

Art. IV, § 24, of the Oregon Constitution and Vendrell concern the immunity of the state and its subdivisions, that is, sovereign immunity. In this appeal we are not concerned with sovereign immunity; we are concerned with the immunity of state officers and employees. Sovereign immunity and the immunity of state officers and employees are two different legal concepts and have two different origins and purposes. Art. IV, § 24, of the Oregon Constitution, providing that sovereign immunity can be lifted by the legislature enacting a general law to that effect does not apply to the immunity of state employees.

Mr. Justice Traynor remarked in Muskopf v. Corning Hospital District (the case ending sovereign immunity in California), 55 Cal.2d 211, 221, 11 Cal.Rptr. 89, 95, 359 P.2d 457, 463 (1961): 'Thus this immunity (that of state employees) rests on grounds entirely independent of those that have been advanced to justify the immunity of the state from liability...