Wentz v. Potter
| Decision Date | 05 December 1933 |
| Docket Number | Case Number: 21712 |
| Citation | 28 P.2d 562,1933 OK 655,167 Okla. 154 |
| Parties | WENTZ et al. v. POTTER. |
| Court | Oklahoma Supreme Court |
¶0 1. States--Action Against State Though Nominally Against State Officers.
Suits against officers of a state as representing the state in action and liability, and in which the state, although not a party to the record, is the real party against which relief is sought, and in which a judgment for plaintiff, although nominally against defendants as individuals, could operate to control the action of the state or subject it to liability, are suits against the state.
2. Same--State not Liable to Suit Except by Its Consent.
A sovereign state cannot be sued except by its consent granted by express legislative enactment.
3. Same--State not Subject to Action in Tort for Damages From Construction of Highway--Statutory Remedy of Landowner.
Since the state has not given its consent to be sued in tort for consequential damages caused by the construction of a state highway, the procedure for recovery of said damages outlined in sections 11931-11934, O. S. 1931, is exclusive.
Appeal from District Court, Lincoln County; Tom P. Pace, Assigned Judge.
Action by Adda Potter against Lew H. Wentz et al., as members of the State Highway Commission, et al. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
J. Berry King, Atty. Gen., W. C. Lewis, Asst. Atty. Gen., for plaintiffs in error.
Erwin & Erwin, for defendant in error.
¶1 This action was filed in the district court of Lincoln county by Adda Potter against Lew H. Wentz, L. C. Hutson, and S. C. Boswell, as members, and Eugene Wheeler and Claud Smith, as employees, of the State Highway Commission of the state of Oklahoma, as an action for damages. Defendants interposed a demurrer to the petition on the ground that this is an action against the state, and the state had not consented to be sued. The demurrer was overruled by the trial court, and the defendants elected to stand on the demurrer. Judgment was thereupon rendered in favor of plaintiff against the defendants for the amount of damages alleged in the petition, in the sum of $ 485, from which judgment defendants appealed. The parties will be referred to as they appeared in the trial court.
¶2 The petition of plaintiff alleges that she has a preference right lease upon the N.W. 1/4 of section 20, township 14 north, range 3 east, in Lincoln county; that defendants caused to be constructed a highway immediately adjacent to said land on the north, and in the construction thereof erected an earthen embankment covered with a concrete slab, which stopped natural drainage of water from said land; that defendants failed to provide sufficient opening to allow the water to escape, with the result that it backed upon said lands causing damage to plaintiff's crops to the amount of $ 285, and damage to her tile drainage system to the amount of $ 200.
¶3 It is not contended by plaintiff that defendants, in locating and constructing said road, were not acting in their official capacities as state officers and employees. It is noted that the action is purely a tort action for damages against the officials and employees of the state of Oklahoma. It is well settled that such an action is a suit against the state. In the case of Love v. Filtsch, 33 Okla. 131, 124 P. 30, it is said:
"Suits against officers of a state as representing the state in action and liability, and in which the state, although not a party to the record, is the real party against which relief is sought, and in which a judgment for plaintiff, although nominally against defendant as an individual, could operate to control the action of the state or subject it to liability, are suits against the state."
¶4 In the case of National Surety Co. v. State Banking Board, 49 Okla. 184, 152 P. 389, it is said:
"A sovereign state cannot be sued except by its consent granted by express legislative enactment."
See, also, State Banking Board v. Oklahoma Bankers' Trust Co., 63 Okla. 260, 164 P. 660; State banking Board v. Oklahoma Bankers' Trust Co., 49 Okla. 72, 151 P. 566; Lankford v. Schroeder, 47 Okla. 279, 147 P. 1049; Lovett v. Lankford, 47 Okla. 12, 145 P. 767; Board of Commissioners v. Hancock, 96 Okla. 238, 221 P. 429; Whiteneck v. Board of Commissioners, 89 Okla. 52, 213 P. 865; Welker v. Annett, 44 Okla. 520, 145 P. 411; Carr v. State, 127 Ind. 204, 26 N.E. 778; Hans v. State of Louisiana, 134 U.S. 1, 33 L. Ed. 842; In re Ayers, 123 U.S. 443, 31 L. Ed. 216; Hampton v. State Board of Education of Florida (Fla.) 90 Fla. 88, 105 So. 323; State Highway Commission of Wyoming v. Utah Construction Co., 73 L. Ed (U. S.). 262.
¶5 Plaintiff contends that the state has given express permission by legislative enactment to file an action of this nature, and cites as authority therefor the case of State Highway Commission v. Smith, 146 Okla. 243, 293 P. 1002. An examination of said case discloses that it points out plaintiff's remedy herein, but that said remedy is not an action in tort for damages. Therein it is said:
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...Oklahoma Bankers Trust Co., 49 Okla. 72, 151 P. 566; National Surety Co. v. State Banking Board, 49 Okla. 184, 152 P. 389; Wentz v. Potter, 167 Okla. 154, 28 P.2d 562; Antrim Lumber Co. v. Sneed, 175 Okla. 47, 52 P.2d 1040; Hawks v. Walsh, 177 Okla. 564, 61 P.2d 1109; State Highway Comm. v.......
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