Texas Prison Board v. Cabeen

• Decision Date: 18 February 1942
• Docket Number: No. 3948.,3948.
• Parties: TEXAS PRISON BOARD et al. v. CABEEN.
• Court: Texas Court of Appeals

Page 523

159 S.W.2d 523

TEXAS PRISON BOARD et al. v. CABEEN.

No. 3948.

Court of Civil Appeals of Texas. Beaumont.

February 18, 1942.

Rehearing Denied February 25, 1942.

Appeal from District Court, Montgomery County; W. B. Browder, Judge.

Action by Mrs. Gertrude Cabeen against the Texas Prison Board and others for damages for the death of plaintiff's son killed in an automobile collision. From a judgment for plaintiff, defendants appeal.

Reversed and rendered.

Fulbright, Crooker, Freeman & Bates, and W. N. Arnold, Jr., all of Houston, Gerald C. Mann, Atty. Gen, and D. Burle Daviss and Geo. W. Barcus, Asst. Attys. Gen., for appellants.

R. H. Weatherly and W. C. McClain, both of Conroe, for appellee.

WALKER, Chief Justice.

On or about the 18th day of December, 1940, Chancey Wilson Cabeen, the son of appellee, Mrs. Gertrude Cabeen, was killed in a collision on highway No. 75 in Montgomery County between an automobile in which he was riding and a truck owned by the Texas Prison System, driven and operated at the time of the collision by Harry Lynch, a convict, in the business of the Texas Prison System. This suit was brought by Mrs. Cabeen, appellee, on allegations that she was the sole beneficiary of her deceased son, for the damages suffered by her in the collision, against the Texas Prison Board, and the Texas Prison System, and against the following named defendants in their official and personal relations: Dr. Sidney M. Lister, Chairman of the Texas Prison Board, O. J. S. Ellingson, Manager of the Texas Prison System, and W. W. Waid, Warden of the Texas Prison System, and N. B. Archer, an employee of the Texas Prison System. We quote from appellee's petition:

"III. That the Texas Prison Board and Prison System is an arm of our State Government. That the affairs of the State Prison System are invested by statute in the Texas Prison Board, that the said Texas Prison Board, together with the General Manager are vested with exclusive management and control of the Prison System, and all properties belonging thereto, and are responsible for the management of the affairs of the Prison System. That the said General Manager, O. J. S. Ellingson, was duly appointed by the Texas Prison Board as General Manager of said Prison System and was at all times material to this suit General Manager of said Prison System."

"V. Plaintiff would represent to the Court that the Prison System on or about the 18th day of December, 1940 owned and operated a large number of trucks in connection with the affairs of the Prison System. That said trucks are operated exclusively under the management, control, and direction of O. J. S. Ellingson, W. W. Waid, and N. B. Archer in their capacity aforesaid. That on the date aforesaid one of the trucks belonging to the Prison System, about 4:30 a. m. was being operated on highway 75 in Montgomery County, Texas between Conroe, Texas and Willis, Texas. That at the time and place in question, said Prison truck was being operated, same was being done under the exclusive management, control and direction of the above named defendants. The driver of said truck at the time and place in question was Harry Lynch, who was an inmate of the Texas Prison System, and at the time of the hereinafter alleged acts was driving and operating said truck loaded with canned goods, with the knowledge and consent of the defendants and under their management, control and direction. That said Prison truck at the time and place in question was being operated for a purpose legitimately connected with the operation of the Texas Prison System, and at the time and place aforesaid, the said Harry Lynch was acting with expressed authority of the above named defendants."

"IX. That immediately prior to and at the time and place of the collision in question, the defendants acting by and through their duly authorized agents, servant and employee, Harry Lynch, acting in the capacity aforesaid, was guilty of negligence in the operation of the said truck in several respects, which said acts of negligence operated either singularly or concurrently to produce said injuries to the said Chancey Wilson Cabeen, as will be hereinafter more fully shown, which said acts were both of commission and omission, and were the following, to-wit:

"1. In driving and operating said truck and trailer, constituting a commercial motor vehicle, upon a public highway, and containing an actual gross weight of over six thousand (6,000) pounds at a rate of speed in excess of twenty-five (25) miles per hour, in violation of Section 8 of Article 827a, Vernon's Annotated Penal Code.

"2. In operating the truck when a portion thereof was over the center line of the highway and on the left hand side considering the direction in which he was traveling.

"3. In failing to yield one-half of said road, in violation of the laws of the State of Texas.

"4. In driving and operating said truck and trailer, having a width in excess of seventy (70) inches without two (2) clearance lamps on the left side of said truck and trailer in violation of Section 9 of Article 827a, Vernon's Annotated Penal Code.

"5. In driving and operating said truck and trailer, without headlights visible under normal atmospheric conditions, at a distance of not less than five hundred (500) feet, in violation of Section 9 of Article 827a, Vernon's Annotated Penal Code.

"X. That each and all of the aforesaid several acts and omissions of Harry Lynch, the agent, servant and employee of the defendants, acting as aforesaid, were jointly and severally negligent and were each and all, jointly and severally, the proximate cause of the death of Chancey Wilson Cabeen, and had it not been for the aforesaid acts and omissions of negligence on the part of Harry Lynch, the agent, servant and employee of the defendants, acting as aforesaid, the collision and resulting injuries and death to the said Chancey Wilson Cabeen would not have occurred."

The defendant answered by general demurrer, general denial, etc. On trial to a jury, answering special issues, the driver of the truck was convicted of negligence, proximately causing the death of appellee's son in the following respects: He was driving in excess of 25 miles per hour at the time of the collision; was driving on the left hand side of the road; was driving without two clearance lamps on the left side of the truck; was driving without burning head lights. The jury acquitted appellee's son of the several acts of contributory negligence charged against him by appellants, and found further that the collision was not an unavoidable accident. Appellee's damages were assessed at the sum of $8,000.

After appellee closed her testimony, appellants filed a motion for a peremptory instruction in their behalf, which was overruled, and to which ruling they excepted. After all the testimony was in, appellants moved a second time for an instructed verdict, which was overruled, and to which they excepted. The Texas Prison System objected and excepted to the entire charge as given by the trial court, for the reason that on the entire evidence it appeared as a matter of law that the Texas Prison Board and the Texas Prison System were integral parts of the State of Texas, for which reasons they were not liable for the injuries caused by the negligence of the convict, Harry Lynch. These exceptions were overruled, to which they duly excepted. After the jury returned its verdict, Texas Prison Board and Texas Prison System moved the court to enter judgment in their favor non obstante veredicto, on the theory that they were governmental agencies and not liable for the injuries inflicted by the negligence of the convict, Harry Lynch. This motion was overruled, to which they excepted.

On the verdict of the jury, judgment was entered in favor of appellee, Mrs. Gertrude Cabeen, on the 9th day of June, 1941, for $8,000 against appellants, Texas Prison Board, Texas Prison System, and against the following named appellants in their individual relation: Dr. Sidney M. Lister, Chairman of the Texas Prison Board, O. J. S. Ellingson, Manager of the Texas Prison System, W. W. Waid, Warden of the Texas Prison System, and N. B. Archer, and an employee of the Texas Prison System. From the judgment against them appellants have duly prosecuted their appeal to this court. The basic contention of the Texas Prison Board and the Texas Prison System is that no cause of action was alleged against them by appellee's petition, or proven against them by the evidence, or found against them by the verdict of the jury. We sustain this contention.

Articles 6166a to 6203g, Vernon's Ann.Civ.St., establish and create the Texas Prison System and the Texas Prison Board, making them governmental agencies. In fact, appellee alleged "that the Texas Prison Board and Prison System is an arm of our State government." A suit against the Prison System and the Prison Board, and their officers and agents in their official relation, is a suit against the State of Texas. Herring v. Houston Nat. Exchange Bank, 113 Tex. 264, 253 S.W. 813. It is the law that the State of Texas is not liable for the torts or negligence of its officers, agents, servants or employees. State v. McKinney, Tex.Civ.App., 76 S.W. 2d 556; State v. Flowers, Tex.Civ.App., 94 S.W.2d 193; Brooks v. State, Tex.Civ. App., 68 S.W.2d 534; Welch v. State, Tex. Civ.App., 148 S.W.2d 876. It follows that appellants, Texas Prison System and Texas Prison Board, and Dr. Sidney M. Lister, O. J. S. Ellingson, W. W. Waid and N. B. Archer in their official relation were not liable to appellee for the tort of Harry Lynch, the driver of the truck, which tort resulted in the death of appellee's son.

Appellee does not controvert the general propositions announced above, but would hold appellants liable on the following propositions:

"Reply to Point One. By virtue of Art. 6166z10, Vernon's Annotated Statutes, appellee was entitled to judgment against the Texas...