Texas Highway Department v. Weber
| Decision Date | 23 March 1949 |
| Docket Number | No. A-2023.,A-2023. |
| Citation | 219 S.W.2d 70 |
| Parties | TEXAS HIGHWAY DEPARTMENT v. WEBER. |
| Court | Texas Supreme Court |
Price Daniel, Atty. Gen., Charles E. Crenshaw and Jesse P. Luton, Jr., Asst. Attys. Gen., for petitioner.
F. A. Collins, Bracewell & Tunks and Searcy Bracewell, all of Houston, for respondent.
S. J. Weber sued the Texas Highway Department, after permission was granted by the Legislature of the State of Texas for him to bring the suit. The facts of the case are relatively simple, and are undisputed. On August 23, 1945, Weber was the lessee of a tract of land near the City of Houston, adjoining the Houston-Alvin highway, which was maintained by the Texas Highway Department. At that time Weber owned a hay crop growing upon the leased premises which was almost ready for harvest. On the date mentioned employees of the Highway Department, while engaged in the maintenance of the highway, burned the grass along the shoulders of the highway near the leased premises; the fire set by these employees spread onto the hay crop of Weber and destroyed a substantial portion of it. The trial court in its findings of fact, in addition to those above set out, found that Weber suffered damages in the sum of $6,500.00 by reason of the destruction of his hay crop; further, it found that the damages necessarily must have resulted from some negligent act or omission of the Highway Department employees which was not authorized by the State, nor did such act or omission aid or benefit it in the execution of any work project by the State. The trial court's conclusion was that, as a matter of law, the damages could not have resulted except from some unauthorized negligent act or omission, and that, because the damage was necessarily the result of negligence, there was no taking, damaging, or destroying of property within the meaning of Article 1, Section 17 of the Constitution of the State of Texas, Vernon's Ann.St., and therefore entered judgment for the defendant. Upon appeal by Weber to the Galveston Court of Civil Appeals, this judgment was reversed and rendered in favor of Weber for the amount of damages that the trial court found Weber to have sustained. Tex.Civ. App., 215 S.W.2d 258.
Respondent takes the position that the matter of negligence is not material in any respect to a proper determination of this cause; that the sole question here presented is whether or not, under the facts enumerated, the destruction of Weber's hay crop constituted a "taking or damaging" of property under the provision of the Constitution hereinabove mentioned. The contention of the petitioner, on the other hand, is that the damage complained of could not have resulted except from some negligent, unauthorized act of the employees of the Highway Department, for which the Highway Department was not liable; that the facts and circumstances alleged in respondent's petition upon which he went to trial, and the proof adduced thereon, do not show that the hay crop was taken, damaged, or destroyed for or applied to public use.
In the absence of a constitutional or statutory provision therefor, the state is not liable for the torts of its officers or agents. Further, the state in the exercise of its sovereign authority has the right to take, damage, or destroy private property for a public use, subject, of course, to the right of the owner thereof to adequate compensation. These principles of law are so well established and uniformly recognized that it is trite to repeat them. The plaintiff predicated his cause of action, necessarily, in view of the non-suability of the state for torts committed by its agents, upon the provision of the Constitution of Texas which reads as follows:
"No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; * * *."
Under the facts of this case, the cause of action is simply one sounding in tort. The Highway Department employees were engaged in the maintenance of the highway at the time they set the fire that caused the damage to respondent's hay crop. They were engaged in the discharge of a mandatory, governmental duty. There was no authorization or necessity for them to cause damage to adjoining property by reason of burning the grass on the shoulders of the highway. The damage occasioned by the fire was not necessarily an incident to, or necessarily a consequential result of, the act of the employees in clearing the grass from the highway. The spreading of the fire onto the premises of Weber was purely and solely the result of negligence; in no conceivable way can it be said that the hay crop was taken or damaged for public use. To hold otherwise would be, in effect, to establish a principle of law that the state is responsible for all injuries or damages occasioned by its agents in the negligent performance of their official duties. It is true, and unfortunately so, that respondent has suffered damage to his property. One's normal reaction is that he should be compensated therefor. On the other hand, the doctrine of the non-suability of the state is grounded upon sound public policy. If the state were suable and liable for every tortious act of its agents, servants, and employees committed in the performance of their official duties, there would result a serious impairment of the public service and the necessary administrative functions of government would be hampered.
The constitutional provision of Texas under consideration, and more or less similar provisions are contained in the constitutions of all the states of this nation, without doubt, constitutes a limitation...
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