Wisconsin Granite Co. v. State

• Decision Date: 02 February 1929
• Docket Number: 6167.
• Citation: 223 N.W. 600,54 S.D. 482
• Parties: WISCONSIN GRANITE CO. v. STATE. [*]
• Court: South Dakota Supreme Court

223 N.W. 600

54 S.D. 482

WISCONSIN GRANITE CO. v. STATE. ^[*]

No. 6167.

Supreme Court of South Dakota

February 2, 1929

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by the Wisconsin Granite Company against the State. From an order overruling a demurrer to the complaint, defendant appeals. Reversed.

Buell F. Jones, Atty. Gen., and R. F. Drewry, Asst. Atty. Gen., for the State.

Parliman & Parliman, of Sioux Falls, for respondent.

BROWN J.

This is an appeal from an order overruling defendant's demurrer to the complaint. The material allegations of the complaint are: That Carl E. Koehler was a workman employed by plaintiff in a stone quarry at Sioux Falls; that the state operated a quarry closely adjoining plaintiff's quarry; that the state borrowed from plaintiff one of plaintiff's workmen named Harry Vassor, who was an expert in firing blasts to loosen the rock; that, while working for the state, Vassor fired a blast without giving proper warning to Koehler who was working in plaintiff's quarry; that a rock from said blast hit Koehler on the head and seriously injured him; that plaintiff had paid to Koehler $3,048.01 under the Workmen's Compensation Law of the state; that Koehler had sustained damage by the injury to the amount of $20,000, and plaintiff brings this suit against the state to recover $20,000, of which $3,048.01 was to reimburse plaintiff for what it had paid under the Workmen's Compensation Law and $16,951.99 was for the benefit of Koehler. The only ground of demurrer that we need consider is that the complaint does not state facts sufficient to constitute a cause of action.

Chapter 303 of the Laws of 1925 provides that all actions against the state, where the state or some of its employees or servants are guilty of the negligence that caused the injury as provided in the Workmen's Compensation Law, shall be brought in the circuit court in the county wherein the injury occurred.

The provisions of the Workmen's Compensation Law apply to the state. Rev. Code, § 9451.

So far as material to this case, Rev. Code, § 9446, as amended by chapter 416 of the Laws of 1921, provides that, when a compensable injury has been sustained for which a legal liability for damages would attach to some other person than the employer who has paid compensation, the employer may collect from such other person the amount of such liability and hold for the benefit of the injured employee the damages collected in excess of the compensation paid, plus the necessary and reasonable expense of collection. Plaintiff contends that under the foregoing provisions of law this action is maintainable.

In absence of constitutional or statutory authority, an action cannot be maintained against the state. "The rule is well established that a state is not liable for the negligence or misfeasance of its officers or agents, except when such liability is voluntarily assumed by its legislature. The doctrine of respondeat superior does not prevail against the sovereign, in the necessary employment of public agents. The exemption is based upon the sovereign character of the state and its agencies, and upon the absence of obligation, and not on the ground that no remedy has been provided." 25 R. C. L. 407. See, also, 36 Cyc. 913, 914; 38 Cyc. 472. This exemption is based upon the absence of obligation and not upon mere absence of remedy, so that the consent of the state to be sued and specifying the court in which suit may be brought does not, in itself, create any obligation or liability on the part of the state. Riddoch v. State, 68 Wash. 329, 123 P. 450, 42 L. R. A. (N. S.) 251, Ann. Cas. 1913E, 1033.

Wherever state exemption from liability to suit has been removed, it has been done by legislative action and not by judicial decision, and courts have generally held that assumption by the state of liability for torts must be clearly expressed in the statute under which liability is claimed to be created. For example, the act creating a court of claims in the state of Illinois provided that it should be the duty of the court to hear and determine, among other things, "all unadjusted claims founded upon any law of the State or upon any contract, express or implied, with the government of the State," and, after enumerating a number of other classes of claims, specified: "Fourth-All other unadjusted claims of whatsoever nature or character, against the State of Illinois." Laws 1903, p. 140. Under this act, it was held, in Morrissey v. State, 2 Ct. Cl. (Ill.) 254 that the state was not liable for injuries received in the collapse of a bridge maintained by the state in its governmental capacity. In Taylor v. State, 2 Ct. Cl. (Ill.) 243, it was held that the state was not liable for injuries sustained by one struck by stones flying from an overturned car at the bottom of an incline in a quarry operated by the state penitentiary; the loaded car having run back from near the top of the incline when a defective drawbar broke.

We now take up consideration of our constitutional and statutory provisions on the subject. Article 3, § 27, of the Constitution, provides: "The legislature shall direct by law in what manner and in what courts suits may be brought against the state." This assumes no obligation or liability on the part of the state, but simply directs the Legislature to designate by what procedure and in what courts suit may be brought in cases wherein the state may assume liability. Under this constitutional authority the Legislature enacted Rev. Code, §§ 2109-2112, inclusive, but these sections only provide that: "It shall be competent for any person deeming himself aggrieved by the refusal of the state auditor to allow any just claim against the state, to commence an action against the state by filing with the clerk of the supreme court a complaint setting forth fully and particularly the nature of the claim"-and then go on to state the mode of procedure in disposing of the action. No liability on the part of the state is here assumed.

In Sigwald v. State, 50 S.D. 37, 208 N.W. 162, it was held that these sections of the Code authorize the maintenance of a suit against the state only in "such actions as might result in a judgment which could lawfully be paid out of the state treasury upon presentation to the state auditor of a certified transcript of the judgment," and do "not authorize the bringing of a suit upon a claim for the payment of which there is no available appropriation."

Respondent quotes from 36 Cyc. 913, 914, as follows: "The consent of the state to be sued is entirely voluntary on its part and it may therefore prescribe the cases in...