State v. Sharp

• Decision Date: 28 April 1920
• Docket Number: Civil 1783
• Citation: 21 Ariz. 424,189 P. 631
• Parties: STATE, Appellant, v. CLAUDE SHARP, by W. L. SHARP, His Guardian Ad Litem, Appellee
• Court: Arizona Supreme Court

189 P. 631

21 Ariz. 424

STATE, Appellant, v. CLAUDE SHARP, by W. L. SHARP, His Guardian Ad Litem, Appellee

Civil No. 1783

Supreme Court of Arizona

April 28, 1920

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Reversed.

Mr Wiley E. Jones, Attorney General, Mr. Louis B. Whitney and Mr. Alexander B. Baker, Assistant Attorneys General, for the State.

Messrs Cox, Moore & Gerard, Mr. L. J. Cox, Messrs. Leyhe & Burch and Mr. H. B. Shoemaker, for Appellee.

OPINION

BAKER, J.

The plaintiff, Claude Sharp, by his guardian ad litem, W. L. Sharp, brings this action against the defendant, the state of Arizona, to recover damages for personal injuries. It is substantially alleged in the complaint that in the month of March, 1919, the state of Arizona, by and through its agents, servants and employees, including the plaintiff was engaged in the construction of an addition to the capitol building in Phoenix, Arizona. During the progress of the work a derrick used for lifting heavy stones was negligently operated by some of the state's employees other than the plaintiff, and fell upon the plaintiff and seriously injured him. The defendant demurred that the complaint did not state the facts sufficient to constitute a cause of action. The demurrer was overruled. A judgment in the sum of $5,000 was rendered in favor of the plaintiff, and the defendant appeals. There is no dispute about the facts. They are agreed to be as stated in the complaint.

A single question is presented by the appeal for consideration and determination, and it is an important one. The question is whether the state is liable to respond in damages for the negligent acts of its agents, servants or employees. As to this question it is well settled by the great weight of authority that the state, in consequence of its sovereignty, is immune from prosecution in the courts and from liability to respond in damages for negligence, except in those cases where it has expressly waived immunity or assumed liability by constitutional or legislative enactment. Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 8 L.R.A. 399, 24 N.E. 854; Riddoch v. State, 68 Wash. 329, Ann. Cas. 1913E, 1033, 42 L.R.A. (N.S.) 251, 123 P. 450; Davis v. State, 30 Idaho 137, Ann. Cas. 1918D, 911, 163 P. 373; Smith v. State, 227 N.Y. 405, 125 N.E. 841.

Counsel for the plaintiff, in a well-prepared brief filed in the case, forcibly argues that the state has waived immunity and assumed liability for the negligence charged in the complaint by virtue of paragraph 1791, Civil Code of 1913, which reads as follows:

"All persons who have, or who shall hereafter have claims on contract or for negligence against the state, which have been disallowed, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon against the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment. The rules and practice in civil cases shall apply to such suits except as herein otherwise provided."

This provision was evidently taken from California, as it is an exact counterpart of section 1 of the California act of February 28, 1893 (Stats. 1893, p. 57), found in Henning's General Laws of California (2d ed., Deering, 1914), page 1773. The provision has been construed a number of times by the Supreme Court of that state. The cases are collated in Alameda County v. Chambers, 35 Cal.App. 537, 170 P. 650, and we quote liberally from the opinion:

"The question remains whether the state could be liable for a tort. As to this, in the Melvin case [121 Cal. 6, 53 P. 416] it is said: 'the states are not suable except with their own consent. . . . No claim arises against any government in favor of an individual, by reason of the misfeasance, laches, or unauthorized exercise of powers by its officers or agents.' This is true at least in the discharge of governmental functions, although the rule may be different where the government is exercising some proprietary right.

"It has been furthermore decided that no additional right was conferred by the act of February 28, 1893, entitled 'an act to authorize suits against the state, and regulating the procedure therein.' This act has been regarded as simply affording a remedy where the corresponding right already exists. It is so held in Melvin v. State, supra.

"In Molineux v. State, 109 Cal. 378, 50 Am. St. Rep. 49, 42 P. 34, the effect of this act was considered as to its bearing upon the liability of the state to pay additional interest upon its war bonds. It was said: 'inasmuch as prior to the passage of the act there was no liability for interest on the part of the state, it was not competent for the legislature to create such liability by the passage of the act.' To the same effect is Davis v. State, 121 Cal. 210, 53 P. 555, wherein it was said: 'the act is a mere waiver within certain bounds of the state's sovereign prerogative not to be sued.'

"In Denning v. State, 123 Cal. 316, 55 P. 1000, it was declared that this act 'did not create any liability or cause of action against the state where none existed before, but merely gave an additional remedy to enforce such liability as would have existed if the statute had not been enacted.'"

In Alameda County v. Chambers the question involved was as to whether a writ of mandate would issue to compel the state comptroller to issue his warrant under the provisions of an act of the legislature appropriating money to pay the claims of various persons against the state for the negligent destruction of exhibits at a fair held and conducted by the state. In the opinion the court, reviewing its former decisions construing the act of February 28, 1893, refused to issue the mandate, saying:

"We think it must be held that the appropriation is one based upon an implied liability that cannot legally exist either by virtue of a contract or by reason of the negligence of the officers of the state, since the tort, if committed, related to a governmental function instead of a proprietary business. It would seem, therefore, that the appropriation, not being based upon any legal liability, constitutes a gift within the contemplation of said constitutional provision, and cannot be maintained."

The construction placed upon the act by these decisions evidently proceeds upon the theory that the liability of the state was not enlarged; that no cause of action was created which did not theretofore exist; that the effect of the act was merely to give a remedy to enforce a liability, the state submitting itself to the jurisdiction of the court subject to its right to impose any lawful defense. Immunity from an action is one thing; immunity from liability is another; hence the state does not waive its immunity from liability for the negligence of its agents, servants or employees by a statute conferring jurisdiction only upon the court. Smith v. State, 227 N.Y. 405, 125 N.E. 841.

We feel constrained to follow the decisions of the Supreme Court of California as applied to the construction of paragraph 1791, Civil Code of 1913, under the familiar rule that, where a statute is taken from another state, such statute carries with it the construction theretofore given to it by the highest court of the state from whence the statute is...