State ex rel. Missouri Dept. of Agriculture v. McHenry, No. 66078

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBLACKMAR; RENDLEN; DONNELLY; DONNELLY
Citation687 S.W.2d 178
Docket NumberNo. 66078
Decision Date02 April 1985
PartiesSTATE ex rel. State of Missouri, MISSOURI DEPARTMENT OF AGRICULTURE, et al., Relators, v. The Honorable James F. McHENRY, Judge of the Circuit Court, 19th Judicial Circuit, Respondent.

Page 178

687 S.W.2d 178
STATE ex rel. State of Missouri, MISSOURI DEPARTMENT OF
AGRICULTURE, et al., Relators,
v.
The Honorable James F. McHENRY, Judge of the Circuit Court,
19th Judicial Circuit, Respondent.
No. 66078.
Supreme Court of Missouri,
En Banc.
April 2, 1985.

Page 180

Edwin H. Steinmann, Jr., Asst. Atty. Gen., Jefferson City, James F. Gunn, F. Craig King, Jr., St. Louis, for relators.

Lori J. Levine, Jefferson City, Larry Seckington, Bruce H. Stoltze, Des Moines, Iowa, for respondent.

BLACKMAR, Judge.

This case presents important questions of sovereign immunity and official immunity in claims based on the Grain Dealer's Law (Ch. 276, RSMo) and the Missouri Grain Warehouse Law (Ch. 411, RSMo). 1

IGF Insurance Company is organized under the laws of Iowa. It executed a warehouseman's bond (§ 411.275) on August 1, 1979 and a Grain Dealer's bond (§ 276.426) on April 3, 1981 to secure the operations of Ira Paul Smith and Irene Smith, d/b/a Westboro Elevator, Westboro, Missouri.

IGF on October 18, 1982 filed suit in three counts in the Circuit Court of Cole County, Missouri, naming as defendants (1) the State of Missouri, (2) "Missouri Department of Agriculture," (3) James B. Boillot individually and in his official capacity as Director of the Missouri Department of Agriculture, 2 (4) "Missouri Division of Grain Inspection, Weighing and Warehousing," and (5) Tommy Hopkins Individually and in his official capacity as Director of the division last named. 3 Count I sought a declaratory judgment "construing the rights and duties under the [warehouseman's] bond." Count II sought a similar declaration as to the grain dealer's bond. Counsel made it clear at oral argument that IGF is trying to avoid liability on the bonds given for the protection of the Smiths' customers, because of alleged deficiencies in the performances of the state and its officials. 4 Count III seeks money judgment against all defendants in the amount of $113,000 in connection with the warehouse bond, and $84,000 in connection with the Grain Dealer's bond, together with interest, costs and attorneys' fees.

The defendants sought a writ of prohibition in the Court of Appeals, Western District, and a provisional rule was issued. Even though the provisional rule extended to the entire action, the state and its agencies do not challenge the declaratory judgment prayer in Counts I and II as to them,

Page 181

but do seek prohibition against the claims made in Count III. The individual defendants ask prohibition as to all counts.

Following briefing and argument before an expanded panel the majority of the Court of Appeals voted to quash the preliminary rule summarily and without opinion. Three judges dissented from the summary disposition, and one disagreed with the result. We granted transfer because of the importance of the case, and now take it as though we had issued our own provisional rule. We make the provisional rule absolute as sought by the defendants.

I.

It is first argued that the trial court, in considering and overruling the motions to dismiss, was acting in the exercise of its jurisdiction, and that any error may be corrected by appeal. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983) is cited for the proposition that the writ of prohibition is not available to correct the possibly erroneous failure to dismiss a case. The respondent argues that the cases should proceed through the discovery and trial stages.

Morasch should not be mechanically applied to cases in which substantial questions of sovereign immunity or official immunity are presented. "Immunity" connotes not only immunity from judgment but also immunity from suit. State ex rel. New Liberty Hospital District v. Pratt, 687 S.W.2d 184 (Mo. banc 1985); State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 763, fn. 5 (Mo.App.1981). Immunity claims have jurisdictional aspects. It is not always satisfactory to leave a case pending against a public agency or a public officer, with prospects for burdensome discovery and trial, simply because the circuit court has overruled a motion to dismiss. There are undoubtedly cases in which the issue of immunity depends on factual issues which cannot be effectively determined short of trial, but there are also cases in which an initial inquiry may demonstrate that immunity exists as a matter of law, so as to lay the foundation for the issuance of an initial writ. The decision is a matter of discretion. It is also appropriate to require a litigant who sues the state or its officers to file a petition demonstrating a viable theory of liability. Sherrill v. Wilson, 653 S.W.2d 661 (Mo. banc 1983).

II.

There is no authority for a suit against the state of Missouri for money damages in the manner sought to be stated in Count III. The Department of Agriculture and the Division of Grain Inspection are agencies of the State of Missouri. If they are suable entities at all, they partake of the state's sovereign immunity.

The respondent, desperately seeking authority, cites V.S. DiCarlo Construction Co. v. State of Missouri, 485 S.W.2d 52 (Mo.1972). There the legislature had specifically authorized a construction contract. This Court held that the legislature necessarily intended for the state to pay the contract price, and impliedly consented to the liquidation of the contractor's claim in a judicial proceeding. There was, then, consent to the suit. IGF argues that the statutory requirements for warehouse and grain dealers' bonds, payable to the State of Missouri for the benefit of persons dealing with the principal, represented a contractual obligation analogous to that of DiCarlo. The analogy is inappropriate. In DiCarlo the state intended to make payment for services rendered. Here there is no indication whatsoever that the legislature intended for the state to make any payment whatsoever, or that it stand in the shoes of the surety if it be determined that state officials and employees have not performed their duties. The statutory indication is strongly to the contrary. Section 276.546.

IGF next argues that state regulation of warehouses and grain dealers is a "proprietary" rather than a "governmental" function. The proprietary-governmental dichotomy applies only in the law of municipal corporations, and not to activities

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of the state. 5 The legislature, in § 537.600, RSMo 1978, has mandated the restoration of sovereign immunity as it existed prior to our decision in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977). We are precluded by the recent legislation from making extensions. Bartley v. Special School District,...

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31 practice notes
  • AGI-Bluff Manor, Inc. v. Reagen, No. 85-4015-CV-C-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 18 Abril 1989
    ...an absolute immunity from suit, not just immunity from liability after trial. State ex rel. Missouri Dept. of Agriculture v. McHenry, 687 S.W.2d 178, 181 (Mo. 1985) (en The plaintiffs argue that defendants Reagen and Rapps are not entitled to absolute official immunity under Missouri law. T......
  • Davis v. Buchanan Cnty., 20-1842
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 24 Agosto 2021
    ...2017), State ex rel. Barthelette v. Sanders , 756 S.W.2d 536, 539 (Mo. banc 1988), and State ex rel. Mo. Dep't of Agric. v. McHenry , 687 S.W.2d 178, 181 (Mo. banc 1985). Under Missouri law, official immunity "protects public officials sued in their individual capacities from liability for ......
  • Laughlin v. Perry, No. SC 98012
    • United States
    • United States State Supreme Court of Missouri
    • 30 Junio 2020
    ...immunity from judgment but also immunity from suit." Alsup , 588 S.W.3d at 190 (quoting State ex rel. Mo. Dep't of Agric. v. McHenry , 687 S.W.2d 178, 181 (Mo. banc 1985) ). Laughlin fails to cite any case holding SLEF coverage precludes a party from asserting official immunity as a defense......
  • State ex rel. Twiehaus v. Adolf, No. 67323
    • United States
    • United States State Supreme Court of Missouri
    • 25 Marzo 1986
    ...immune from suit as a matter of law, prohibition is an appropriate remedy. State ex rel. Missouri Department of Agriculture v. McHenry, 687 S.W.2d 178, 181 (Mo. banc The general rule of official immunity is that public officers acting within the scope of their authority are not liable for i......
  • Request a trial to view additional results
31 cases
  • AGI-Bluff Manor, Inc. v. Reagen, No. 85-4015-CV-C-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 18 Abril 1989
    ...an absolute immunity from suit, not just immunity from liability after trial. State ex rel. Missouri Dept. of Agriculture v. McHenry, 687 S.W.2d 178, 181 (Mo. 1985) (en The plaintiffs argue that defendants Reagen and Rapps are not entitled to absolute official immunity under Missouri law. T......
  • Davis v. Buchanan Cnty., 20-1842
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 24 Agosto 2021
    ...2017), State ex rel. Barthelette v. Sanders , 756 S.W.2d 536, 539 (Mo. banc 1988), and State ex rel. Mo. Dep't of Agric. v. McHenry , 687 S.W.2d 178, 181 (Mo. banc 1985). Under Missouri law, official immunity "protects public officials sued in their individual capacities from liability for ......
  • Laughlin v. Perry, No. SC 98012
    • United States
    • United States State Supreme Court of Missouri
    • 30 Junio 2020
    ...immunity from judgment but also immunity from suit." Alsup , 588 S.W.3d at 190 (quoting State ex rel. Mo. Dep't of Agric. v. McHenry , 687 S.W.2d 178, 181 (Mo. banc 1985) ). Laughlin fails to cite any case holding SLEF coverage precludes a party from asserting official immunity as a defense......
  • State ex rel. Twiehaus v. Adolf, No. 67323
    • United States
    • United States State Supreme Court of Missouri
    • 25 Marzo 1986
    ...immune from suit as a matter of law, prohibition is an appropriate remedy. State ex rel. Missouri Department of Agriculture v. McHenry, 687 S.W.2d 178, 181 (Mo. banc The general rule of official immunity is that public officers acting within the scope of their authority are not liable for i......
  • Request a trial to view additional results

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