Stadler v. Curtis Gas, Inc.

• Decision Date: 30 June 1967
• Docket Number: No. 36483,36483
• Citation: 182 Neb. 6,151 N.W.2d 915
• Parties: Shirley STADLER, Administratrix of the Estate of Roy Stadler, Deceased, Appellant, v. CURTIS GAS, INC., a Corporation and the Board of Regents of the University of Nebraska, Appellees.
• Court: Nebraska Supreme Court

Page 915

151 N.W.2d 915

182 Neb. 6

Shirley STADLER, Administratrix of the Estate of Roy Stadler, Deceased, Appellant, v. CURTIS GAS, INC., a Corporation and the Board of Regents of the University of Nebraska, Appellees.

No. 36483.

Supreme Court of Nebraska.

June 30, 1967.

Syllabus by the Court

1. A consent to suit is a waiver of immunity from suit which permits the enforcement of a preexisting liability. It is not a waiver of immunity from liability and does not create a cause of action not previously existing.

2. When a state, by itself or through its corporate creations, embarks, in an enterprise, especially when commercial in character or which is usually carried on by individuals or private companies, its sovereign character is ordinarily waived, and it is subject to like regulations with persons engaged in the same calling.

Smith Brothers, John Wightman, Lexington, for appellant.

Maupin, Dent, Kay & Satterfield, North Platte, Cline, Williams, Wright, Johnson, Oldfather & Thompson, Lincoln, for appellees.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

BOSLAUGH, Justice.

This is an action by the administratrix of the estate of Roy Stadler, deceased, to recover damages for his injury and death. The deceased was injured on May 20, 1965, in a gas explosion caused by a defective valve on a water heater in a residence leased by the deceased from the defendant, Board of Regents of the University of Nebraska. The deceased died on June 7, 1965, as a result of the injuries sustained in the explosion on May 20, 1965.

The second amended petition alleged that employees of the defendant, Curtis Gas, Inc., had serviced the water heater in March at the request and authorization of the Board of Regents; that Curtis Gas, Inc., had notified the Board of Regents that the valve was defective but that each defendant had failed to repair the heater or notify the deceased of its defective condition; and that the Board of Regents was negligent in failing to keep the premises in a safe condition and in failing to warn the deceased of the defective valve.

The second amended petition further alleged that the Board of Regents had acquired the property in August 1947; that it had been leased to others since May 1964; that it was leased to the deceased on or about February 27, 1965; that there was no relationship between the Board of Regents and the deceased other than that of landlord and tenant; that the leasing of the property by the Board of Regents 'was in the same nature and capacity as that of private parties leasing dwelling houses for rent'; and that the Board of Regents 'was acting beyond the scope of any governmental capacity for which it was created' in leasing the property to the deceased.

A general demurrer filed by the Board of Regents was sustained and the action dismissed as to that defendant. The administratrix has appealed.

The question presented is whether the Board of Regents of the University of Nebraska may be liable for the negligence of its agents and employees. The Board of Regents contends that it is an agency of the state and as such is immune from liability.

By statute, The Board of Regents of the University of Nebraska is constituted 'a body corporate' that 'may sue and be sued.' S. 85--105, R.R.S.1943. This statute permits the maintenance of an action against the Board of Regents but it is not a waiver of any immunity from liability. A consent to suit a waiver of immunity from suit which permits the enforcement of a preexisting liability. It is not a waiver of immunity from liability and does not create a cause of action not previously existing. Shear v. State, 117 Neb. 865, 223 N.W. 130; Kent v. State, 118 Neb. 501, 225 N.W. 672.

The plaintiff contends that the renting of the residence property to the deceased in this case was a nongovernmental or proprietary activity of the Board of Regents to which the immunity from liability does not extend. The Board of Regents argues that all of its activities are governmental in nature and the state engages in no activity of a nongovernmental or proprietary nature.

Although there is some conflict in the authorities, this court has recognized the doctrine that the state and its agencies may engage in propriety activities and thereby incur liabilities from which they would otherwise be immune. In Sorensen v. Chimney Rock Public Power Dist., 138 Neb. 350, 293 N.W. 121, this court said: '* * * when a state, by itself or through its corporate creations, embarks in an enterprise, especially when commercial in character or which is usually carried on by individuals or private companies, its sovereign character is ordinarily waived, and it is subject to like regulations with persons engaged in the same calling.' See, also, Platte Valley Public Power & Irr. Dist. v. County of Lincoln, 144 Neb. 584, 14 N.W.2d 202, 155 A.L.R. 412; People v. Superior Court, 29 Cal.2d 754, 178 P.2d 1, 40 A.L.R.2d 919.

In this case the plaintiff has alleged that there was no relationship between the Board of Regents and the deceased other than that of landlord and tenant, and that the leasing of the property by the Board of Regents was in the same nature and capacity as that of private parties leasing dwelling houses for rent. In Pintek v. County of Allegheny, 186 Pa.Super. 366, 142 A.2d 296 (Allocatur refused), the Superior Court of Pennsylvania held that a school district, a county, and a borough, which were operating an apartment building that they had bid in at a tax sale, were engaged in a propriety activity and liable for injuries to a child who was injured on a defective fire escape. In the language of the court, they were 'conducting a business operation on the premises as distinguished from a governmental operation.' See, also, Morris v. School Dist. of Mount Lebanon, 393 Pa. 633, 144 A.2d 737.

The ultimate determination in this case, as to whether there is any basis for liability on the part of the Board of Regents to the plaintiff, will necessarily depend upon the facts. Upon the present state of the record, the demurrer of the Board of Regents should have been overruled.

The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

NEWTON, Justice (dissenting).

I find it necessary to respectfully dissent from the majority opinion. I fully agree that the rule of governmental immunity should be relaxed as it relates to the State of Nebraska. The obsoleteness of the rule was well pointed out by Justice Edwards in the case of Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1, when he said, it is: '* * * an ancient rule inherited from the days of absolute monarchy which has been productive of great injustice in our courts. By so doing (eliminating the rule), we join a major trend in this country toward the righting of an age-old wrong.' Indeed, logic dictates that a person run over by a state-owned truck should have the same right to recover as one run over by a privately owned truck.

I disagree that the power to abolish the immunity doctrine in Nebraska should be exercised by the judicial branch of state government. It has been said that the doctrine having been originally of judicial conception should be abolished by the judiciary. Such a conclusion does not necessarily follow. It must be borne in mind that this doctrine antedates our state constitutions and that many of our state constitutions were adopted with this rule in mind. Such is the case in Nebraska.

In this state we have a constitutional provision as follows: 'The state may sue and be sued, and the legislature shall provide by law in the what manner and in what courts suits shall be brought.' Art. V, s. 22, Constitution of Nebraska.

A majority of the states still adhere to the immunity doctrine and many of those which have abrogated it as to charitable and municipal corporations have refused to abrogate it insofar as the state is concerned. Wisconsin announced complete abrogation of the doctrine in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, but I am unable to find any case in which the Wisconsin court has actually held that it was abrogated in a tort action against the state itself. In this Wisconsin case, the court, in effect, destroyed the applicability of its rule abrogating governmental immunity for tort liability by referring to the Wisconsin Constitution which provides: 'The legislature shall direct by law in what manner and in what courts suit may be brought against the state.' It then went on to say: 'The decision in the case at bar removes the state's defense of nonliability for torts, but it has no effect upon the state's sovereign right under the Constitution to be sued only upon its consent.' Minnesota announced abrogation of the doctrine prospectively in Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795, but in that case specifically stated: 'Nor is it our purpose to abolish sovereign immunity as to the state itself.'

A number of other states having similar constitutional provisions have likewise refused judicial abolition of the doctrine on the ground that the constitution vested such authority in the legislative and not the judicial branch of government. See, Wilson v. City of Cincinnati, 172 Ohio St. 303, 175 N.E.2d 725; Bach v. Bach (Ky.), 288 S.W.2d 52; Hill v. Beeler, 199 Tenn. 325, 286 S.W.2d 868; Chumbley v. State, 183 Tenn. 467, 192 S.W.2d 1007; United Contracting Co. v. Duby, 134 Or. 1, 292 P. 309; Schippa v. West Virginia Liquor Control Commission, 132 W.Va. 51, 53 S.E.2d 609, 9 A.L.R.2d 1284; Turner v. State, 27 Ark. 337.

The import of such constitutional provisions is well summarized in 81 C.J.S. States § 215 a, p. 1304, wherein it is said: 'Although a state's consent to be sued in its own courts may be expressed in the state constitution, constitutional provisions authorizing or requiring the legislature to direct by...