Terry v. Edgin

• Decision Date: 24 July 1979
• Docket Number: No. 50215,50215
• Citation: 598 P.2d 228
• Parties: Jimmy Neal TERRY, Appellant, v. Gore EDGIN dba Gore Edgin Construction Company, the City of Norman, Oklahoma, a municipal corporation, and, Cleveland County, Oklahoma, acting by and through its Board of County Commissioners, Appellees.
• Court: Oklahoma Supreme Court

Page 228

598 P.2d 228

Jimmy Neal TERRY, Appellant, v. Gore EDGIN dba Gore Edgin Construction Company, the City of Norman, Oklahoma, a municipal corporation, and, Cleveland County, Oklahoma, acting by and through its Board of County Commissioners, Appellees.

No. 50215.

Supreme Court of Oklahoma.

July 24, 1979.

An appeal from the District Court of Cleveland County; Elvin J. Brown, District Judge.

Appeal from order of District Court of Cleveland County sustaining demurrer and dismissing cause of action founded on negligence against County upon the grounds county is absolutely immune from suit for negligence under the doctrine of sovereign immunity. REVERSED AND REMANDED WITH DIRECTIONS TO REINSTATE APPELLANT'S PETITION.

Wayne Wells, Lampkin, Wolfe, Burger, McCaffrey & Norman, Oklahoma City, for appellant.

Robert L. Bailey, Asst. Dist. Atty., Cleveland County, for appellees.

SIMMS, Justice:

This litigation comes before us on appeal a second time. A recitation of the essential facts is found in Terry v. Edgin, Okl., 561 P.2d 60 (1977) where this Court passed on the issue of the correctness of a trial court's sustention of the City's motion for summary judgment. We held the trial court to be incorrect in granting summary relief to the City.

In the appeal now before us, appellant attacks the sustaining of a demurrer to his amended petition and dismissal of his cause of action against the county, the dismissal being predicated upon the County's immunity from liability in tort.

The question is squarely put. Does the doctrine of sovereign immunity unconditionally cloak a county in Oklahoma with absolute immunity from liability arising from the alleged tortious conduct of its officers and employees, committed in the scope of their official duties?

We hold it does not.

Appellant asserts that the trial court erred in ruling that Oklahoma law holds counties immune even when engaged in purely proprietary functions. Furthermore, appellant urges this Court to rule that liability for maintenance of public roadways should be the same for counties as it is for corporate municipalities.

Responding, the county claims that it stands immune from tort liability regardless of the function performed. County also claims that county road maintenance has already been ruled governmental in nature by this Court.

Because the accident and injuries herein complained of occurred prior to the enactment of the "Political Subdivision Tort Claims Act", 51 O.S.Supp.1978, § 151, et seq., the "Act" has no application to this case.

We first consider whether a county is completely immune from suit.

Many jurisdictions in recent years have re-evaluated their commitment to the common law doctrine of sovereign immunity. Often these re-evaluations are accompanied by substantial changes in the law. Appellant has called our attention to certain of these changes and urges that we follow the trend.

We are not unmindful of, nor do we necessarily disagree with, the able arguments of courts and commentators in other jurisdictions. However, this Court has remained steadfast in its dedication to the principal that, wherever possible, the solution to Oklahoma's legal problems are to be found in our Constitution and statutes. If our own law was silent on a particular subject, we might be free to "follow the trend" but we are convinced that our legislature has provided sufficient guidance for solving the issue now before us.

At common law, counties could neither sue nor be sued. Most authorities are in agreement that county immunity became settled common law doctrine in the English case of Russell v. Men of Devon, 2 T.R. 667, 100 Eng.Rep. 359 (1788). The Russell court disallowed the suit absent statutes authorizing actions against counties. ¹

The Supreme Court of Oklahoma, in territorial days, announced the Russell doctrine in James v. Trustees of Wellston Township, 18 Okl. 56, 90 P. 100, 13 L.R.A., N.S. 1219 (1907). The syllabus of the James court stated:

"In the absence of express statute imposing a liability on townships for injuries sustained from defects in highways, such townships, in this territory, are not liable in a civil action for damages for neglect of public duty in failing to keep the highways in a safe and proper condition."

The quoted syllabus is an accurate statement of the common law rule. ² Unfortunately, the import of James was missed in frequent repetition. Clearly, the Constitution and statutes are to guide the courts concerning the status of the common law immunity doctrine in Oklahoma. Resort to jurisdictions operating under statutes substantially different from our own may have resulted in improvident results.

Our attention is called to the frequently cited Oklahoma case of Hazlett v. Board of Commissioners of Muskogee County, 168 Okl. 290, 32 P.2d 940 (1934). There, plaintiff was injured by a negligently driven county truck and badly burned when water from the truck's ruptured radiator spilled over her. She urged the Court consider Oklahoma's Bill of Rights, Article II, § 6, which declares that there shall be a remedy afforded for every wrong. This Court strictly construed the Constitution and found that this Constitutional provision "does not purport to provide a right of action Ex delecto against the county." In affirming the sustaining of a demurrer and dismissal as to the Board of County Commissioners, Hazlett relied upon the Oregon case of Templeton v. Linn County, 22 Or. 313, 29 P. 795 (1892). The Oregon code expressly provided that suits Could be maintained against counties on contracts and not otherwise. There is not now nor has there ever been an analogous Oklahoma statute. Although plaintiff in Hazlett did urge Oklahoma statutes in support of her right to maintain an action against the county, the court dismissed the statutes without analysis by simply stating that they "have been in force in this state since statehood and were likewise in force in the territory of Oklahoma from 1890 to statehood, and doubtless have often been considered in connection with actions against counties and townships." Hazlett, supra, 32 P.2d at page 943.

On reflection, it appears that the Court's cursory treatment of the Oklahoma Constitution and applicable statutes, together with misplaced reliance on inapplicable authority, renders Hazlett of questionable value on the issue of governmental immunity as applied to counties.

Following Hazlett, members of the Oklahoma Bar have diligently searched the statutes for language which might affect an implied waiver of governmental immunity. These efforts have routinely ended in failure. In Board of Commissioners of Harmon County v. Keen, 194 Okl. 593, 153 P.2d 483 (1944), an injured county employee attempted to sue the county on the authority of the Workmen's Compensation Act, 85 O.S.1941, § 3(3). Writ of Prohibition was issued against the trial of the case on the theory that the cited statute did not change the common law relative to county liability. Factually, this Court has been consistent in strictly construing statutes which appear to be in derogation of common law immunity.

A key Oklahoma statute relating to the county's immunity, 19 O.S.1971, § 1, provides:

"Each organized county within this State shall be a body corporate and politic and as such shall be empowered for the following purposes:

1. To sue and be sued. (E.A.)"

It appears this statute was first considered in 1918 in Honnold v. Board of Commissioners of Carter County, 71 Okl. 71, 177 P. 71 (1918). There, plaintiff sued on a contract. This Court acknowledged that the county could be sued on authority of the cited statute. The plaintiff's claim was rejected, however, because the contract involved was void.

Later, in Consolidated School Dist. # 1 of Tulsa County v. Wright, 128 Okl. 193, 261 P. 953 (1927), the court construed the provisions of Ch. 86, C.O.S. 1921, entitled "Schools", which provided that every school district may sue and be sued. The "sue and be sued" provision of the school code was strictly construed to apply only to actions arising out of the scope of school district duties. Our Court cited Daniels v. Board of Education, 191 Mich. 339, 158 N.W. 23, L.R.A. 1916 F, 468, as authority for strict construction. We have reviewed Daniels in an effort to ascertain what relationship existed between the rules governing construction of Michigan statutes in derogation of common law. We are satisfied there is a material difference between Oklahoma and Michigan in this regard. The Michigan Constitution of 1908, Sch. 4, § 1, provides: "The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are altered or repealed." While on the other hand, our 25 O.S.1971, § 29, reads: "The rule of common law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this State, which are to be liberally construed with a view to effect their objects and to promote justice."

The "sue and be sued" provisions of 19 O.S.1971, § 1, supra, was also construed in Andrews v. Proctor, 196 Okl. 272, 165 P.2d 610 (1945). There the plaintiff's real property was damaged when the county changed the grade of a county road passing through plaintiff's land. This Court permitted the suit on the authority of our Constitutional provision contained in Art. II, § 24, which provides: "Private property shall not be taken or damaged for public use without just compensation, * * * ", as well as permitting the suit to be brought under the "sue and be sued" provision of the statute. The Andrews Court noted specifically that private property could not be taken Or damaged without just compensation even though such damage may arise from the county's negligence. Most importantly, the Court in Andrews stated that "Under 19 O.S.1941, § 1, the county can be sued and the Inhibition existing in cases against the state does not...