State v. Sharp, Civil 1783

CourtSupreme Court of Arizona
Writing for the CourtBAKER, J.
Citation21 Ariz. 424,189 P. 631
Docket NumberCivil 1783
Decision Date28 April 1920
PartiesSTATE, Appellant, v. CLAUDE SHARP, by W. L. SHARP, His Guardian Ad Litem, Appellee

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

[21 Ariz. 425] 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 [21 Ariz. 426] 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."

[21 Ariz. 427] 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 [189 P. 632] 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...

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30 practice notes
  • Clouse ex rel. Clouse v. State, No. CV-99-0023-PR.
    • United States
    • Supreme Court of Arizona
    • February 1, 2001
    ...in those cases where it [had] expressly waived immunity or assumed liability by constitutional or legislative enactment." State v. Sharp, 21 Ariz. 424, 426, 189 P. 631, 633 ¶ 9 Governmental immunity retained its place in Arizona law until 1963. In Stone v. Arizona Highway Commission, 93 Ari......
  • Winston v. United States, No. 84
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 27, 1962
    ...Lane, 76 Ariz. 240, 263 P.2d 302 (1953), overruled on other grounds, Lindsey v. Duncan, 88 Ariz. 289, 356 P.2d 392 (1960); State v. Sharp, 21 Ariz. 424, 189 P. 631 (1920); People v. Superior Court of City and County of San Francisco, 29 Cal.2d 754, 178 P.2d 1, 40 A.L.R.2d 919 (1947) (in ban......
  • United States v. Muniz, No. 464
    • United States
    • United States Supreme Court
    • June 17, 1963
    ...when it was acting in a governmental rather than a proprietary capacity. E.g., Denning v. State, 123 Cal. 316, 55 P. 1000; State v. Sharp, 21 Ariz. 424, 189 P. 631; Monahan v. State, 10 C.C.R. 10 (Ill. Ct. of Claims). The House Report does not make this distinction apparent, nor for that ma......
  • Clouse v. State, Dept. of Public Safety, No. CV-99-0023-PR.
    • United States
    • Supreme Court of Arizona
    • October 17, 2000
    ...in those cases where it [had] expressly waived immunity or assumed liability by constitutional or legislative enactment." State v. Sharp, 21 Ariz. 424, 426, 189 P. 631, 633 ¶ 9 Governmental immunity retained its place in Arizona law until 1963. In Stone v. Arizona Highway Commission, 93 Ari......
  • Request a trial to view additional results
30 cases
  • Clouse ex rel. Clouse v. State, No. CV-99-0023-PR.
    • United States
    • Supreme Court of Arizona
    • February 1, 2001
    ...in those cases where it [had] expressly waived immunity or assumed liability by constitutional or legislative enactment." State v. Sharp, 21 Ariz. 424, 426, 189 P. 631, 633 ¶ 9 Governmental immunity retained its place in Arizona law until 1963. In Stone v. Arizona Highway Commission, 93 Ari......
  • Winston v. United States, No. 84
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 27, 1962
    ...Lane, 76 Ariz. 240, 263 P.2d 302 (1953), overruled on other grounds, Lindsey v. Duncan, 88 Ariz. 289, 356 P.2d 392 (1960); State v. Sharp, 21 Ariz. 424, 189 P. 631 (1920); People v. Superior Court of City and County of San Francisco, 29 Cal.2d 754, 178 P.2d 1, 40 A.L.R.2d 919 (1947) (in ban......
  • United States v. Muniz, No. 464
    • United States
    • United States Supreme Court
    • June 17, 1963
    ...when it was acting in a governmental rather than a proprietary capacity. E.g., Denning v. State, 123 Cal. 316, 55 P. 1000; State v. Sharp, 21 Ariz. 424, 189 P. 631; Monahan v. State, 10 C.C.R. 10 (Ill. Ct. of Claims). The House Report does not make this distinction apparent, nor for that ma......
  • Clouse v. State, Dept. of Public Safety, No. CV-99-0023-PR.
    • United States
    • Supreme Court of Arizona
    • October 17, 2000
    ...in those cases where it [had] expressly waived immunity or assumed liability by constitutional or legislative enactment." State v. Sharp, 21 Ariz. 424, 426, 189 P. 631, 633 ¶ 9 Governmental immunity retained its place in Arizona law until 1963. In Stone v. Arizona Highway Commission, 93 Ari......
  • Request a trial to view additional results

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