Taylor v. State, 3950
| Decision Date | 27 May 1957 |
| Docket Number | No. 3950,3950 |
| Citation | 73 Nev. 151,311 P.2d 733 |
| Parties | Raymond E. TAYLOR, Appellant, v. The STATE of Nevada and The University of Nevada, Respondents. |
| Court | Nevada Supreme Court |
Stewart & Horton, Reno, for appellant.
Harvey Dickerson, Atty. Gen., Carson City; Vargas, Dillon & Bartlett and Alex A. Garroway, Reno, for respondents.
This is an action for personal injuries resulting from negligence. The appeal is taken by the plaintiff below from judgment of the trial court dismissing his action against the State of Nevada and the University of Nevada for failure of the complaint to state a claim upon which relief might be granted. The basis of the court's action was the failure of the complaint to plead a waiver of sovereign immunity from suit.
The complaint alleged 'That the defendants, the State of Nevada and University of Nevada, have waived their immunity from suit for the cause herein set forth.' The trial court held this allegation insufficient, relying upon the general rule that waiver is a conclusion of law and that the facts from which the conclusion flows must be pleaded. See 120 A.L.R. 124. Appellant contends that this rule should not apply under NRCP Rule 8 which provides that no technical forms of pleading are required but only 'a short and plain statement of the claim.'
It is true that the pleading of conclusions, either of fact or of law, is sufficient under NRCP, provided the allegation is sufficiently definite to give 'fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved.' 1 Barron & Holtzoff Fed.Pra. & Proc. 432, § 255. Even under the simplified form of pleading provided by the rules this allegation of waiver is insufficient. It wholly fails to give notice of the nature of the claimed waiver or of the issues which may be involved in its litigation. Without knowledge of the basis for the plaintiff's conclusion defendants are wholly unable to admit or deny it intelligently or conscientiously. We conclude that it was not error to hold the complaint deficient.
Appellant contends that the trial court improperly dismissed the action without granting leave to amend. It appears that the factual basis for the plaintiff's conclusion of waiver was made known to the trial court and was regarded by it as insufficient in law to constitute waiver. That basis was as follows: that defendants had obtained insurance against loss due to injuries suffered in the manner complained of; that such insurance was purchased from funds appropriated by the Nevada state legislature in response to a request for such funds made by defendants and was in force at the time the injuries were suffered. The question thus is posed whether the purchase of indemnifying insurance by a state agency with funds provided by the state legislature can be held to constitute a waiver of governmental immunity at least to the extent of the insurance coverage. In our view it cannot.
Sovereign immunity from suit based upon the ancient concept that the king can do no wrong has been severely criticized by the courts as an outmoded...
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... ... court sustained the school district's motion to dismiss on the ground it was an agency of the state, not liable for negligence in the discharge of a governmental function in the absence of statutory ... We so stated in Taylor v. State and University [73 Nev. 151, 311 P.2d 733], ... Page 617 ... supra. There we were ... ...
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