Welch v. State

• Decision Date: 22 February 1941
• Docket Number: No. 12995.,12995.
• Citation: 148 S.W.2d 876
• Parties: WELCH v. STATE.
• Court: Texas Court of Appeals

148 S.W.2d 876

WELCH v. STATE.

No. 12995.

Court of Civil Appeals of Texas. Dallas.

February 22, 1941.

Rehearing Denied March 15, 1941.

Appeal from District Court, Dallas County; John A. Rawlins, Judge.

Action by T. J. Welch against the State of Texas and others for damages for the death of Dorothy Welch, a minor. From a judgment dismissing the action as to the State of Texas, the plaintiff appeals.

Affirmed.

Byron Sachs and McCombs & Andress, all of Dallas, for appellant.

Gerald C. Mann, Atty.Gen., and Wm. J. Fanning, W. P. Watts, and Geo. W. Barcus, Assts. Atty. Gen., for appellee.

LOONEY, Justice.

T. J. Welch, for himself and on behalf of his wife, parents of Dorothy Welch, a minor, seventeen years of age, by permission of the 46th Legislature, brought this action for damages against the State of Texas and Dr. William Thomas, Superintendent of the Terrell State Hospital, established and maintained by the State for the care and treatment of insane persons, alleging in substance that the death of Dorothy occurred in a collision between an automobile owned and operated by Gus Darst and an automobile in which Dorothy and others were traveling, on a public highway in Dallas County, Texas; that Darst was an employee of the State Hospital, of which the defendant Thomas was superintendent—who, knowing that Darst was reckless, likely to become intoxicated and drive the automobile upon the highways recklessly, directed him to take several inmates of the Hospital in his (Darst's) car to the City of Dallas to witness a ball game; that Darst became intoxicated and, while returning from Dallas to Terrell at night, drove his car without headlights, at a reckless speed, and, as the result of other acts of negligence, collided with the car in which Dorothy was riding, killing her almost instantly. Plaintiff's petition is replete with charges of negligence against Superintendent Thomas in employing Darst, in retaining him in the service of the State, knowing that he was a reckless driver, and in directing him to take the inmates of the institution to the ball game at Dallas.

The defendants answered separately; Thomas asserted his privilege to be sued in the county of his residence, and accordingly, venue of the case, as to him, was transferred to a proper court of Kaufman County; and as to the State, the court having sustained its general demurrer, and plaintiff declining to amend, the suit was dismissed, from which he appealed.

Plaintiff contends that, by virtue of the death statute, as amended in 1921, the State assumed liability for wrongful deaths occasioned by the negligence of its representatives, agents, or employees, therefore, plaintiff is entitled to recover of and from the State damages for the wrongful death of his minor daughter.

By repeated decisions of our appellate courts, the rule is well established that the State is not liable in damages for the negligence or misfeasance of its officials, agents or employees, unless such liability is voluntarily assumed by an act of the Legislature; that the doctrine of respondeat superior has no application whatever to the State, its exemption being based upon its sovereign character. See Brooks v. State, Tex.Civ.App., 68 S.W.2d 534, 535, writ refused; State v. McKinney, Tex.Civ. App., 76 S.W.2d 556; Martin v. State, Tex. Civ.App., 88 S.W.2d 131, writ refused. That this doctrine is prevalent the country over is shown by the following authorities: 59 C.J. § 337, p. 194; Carpenter v. Atlanta & C. A. L. Railway Co., 184 N.C. 400, 114 S.E. 693; Downs v. Lazzelle, 102 W.Va. 663, 136 S.E. 195; Riddoch v. State, 68 Wash. 329, 123 P. 450, 42 L.R.A.,N.S., 251, Ann.Cas.1913E, 1033; Shear v. State, 117 Neb. 865, 223 N.W. 130; Hart v. United States, 95 U.S. 316, 24 L.Ed. 479.

Maintenance by the State of hospitals and asylums for the care and treatment of the insane, being specifically provided for in the Constitution, is the performance of a governmental duty. Section 54 of Article 16 of the Constitution provides that: "It shall be the duty of the Legislature to provide for the custody and maintenance of indigent lunatics, at the expense of the State, under such regulations and restrictions as the Legislature may prescribe"; and by Sec. 48 of Art. 3, authority is given the Legislature to levy taxes and raise sufficient revenue for the care and maintenance of the insane. So, unless by the Act of 1921, the State assumed liability for wrongful deaths, occasioned by the negligence of its agents or representatives, plaintiff failed to allege a cause of action, and the court below did not err in sustaining the State's demurrer and dismissing the cause. The Act under consideration, as amended, is now Art. 4671, R.C.S., and, in so far as is pertinent, reads, as follows: "1. When an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskilfulness, or default of another person, * * corporation, * * * his, its or their agents or servants, such persons, * * * corporation, * * * shall be liable in damages for the injuries causing such death. The term `corporation,' as used in this article, shall include all municipal corporations, as well as all private and public and quasi public corporations, except counties and common and independent school districts."

Since the statute was amended, making municipal corporations liable in damages for wrongful deaths, several death cases have been brought against the State, but, in each, the State was held not liable, under the common-law doctrine that recoveries could not be had for the death of any one. Although in these cases the statute in question was not brought under discussion, yet,...