*1
insanity
plea of
under the
supra.]
inquiry
“The
Glenn,
v.
[State
sufficient
capacity and reason
had
the defendant
was whether
wrong
par-
as to
right
distinguish
and
him to
between
Jenable
knowledge and consciousness
doing
then
ticular act he was
—a
subject
criminal, and would
wrong
doing
the act he was
before,
condition
his
conduct
punishment. Evidence
him to
thing charged is
doing of the
subsequent to the
of,
at the time
as
proper conclusion
at a
jury
arrive
admissible to enable
thing
did the
com-
he
status at the time
mental
to the defendant’s
acts of the
generally as to statements
plained
This is true
of.
inquisition
include an
This rule would seem
defendant.
authority
support.
Greenleaf
reason,
there is much
[2
inquisition
says:
‘An
taken un-
Evidence, sec.
Mr. Greenleaf
lunacy
evidence, but not conclusive
is admissible
der a commission
”
State, supra.]
v.
party’s
own favor.’
[Bond
relating to the admission
complaints
merit in the other
We'find no
eyidence.
and exclusion
preserved
were not
questions
presented here,
they
but
Other
are
and,
trial,
therefore, will
for a new
the motion
our review
Standifer, 316
1929;
Mo.
R. S.
State be considered.
[Sec.
49,
For hereinabove the reasons All concur. cause remanded. Bush, Appellant, Dr. of Mis B. v. State (2d) souri . 46 S. W. 854. Two, February 17, Division *2 Vogel
Pierre A. for appellant. N. G. Sevier *3 Boyer respondent. J. Marvin Krause for Mather, B. F. John question FITZSIMMONS, C.—The for decision in Missouri, respondent, whether Commission of for the tortious It may employees. acts question impression is a State. Dr. W. Appellant, of first Bush, brought County B. the Circuit Court Cole suit respondent injuries $10,000 personal and the demoli- alleged automobile, tion of his to have caused been collision Highway No. 66 Waynesville, an auto truck near of defendant County, petition charged Pulaski Missouri. The that appellant’s injuries directly and the destruction of his automobile were caused negligence respondent’s employee operating the truck high wrong dangerous speed, upon rate of side road of the failing proper lights; and without to exercise control over give appellant warning, observing truck or to and in not the humani- Respondent petition upon ground tarian rule. demurred to the subject-matter jurisdiction did not have that the court *4 petition action and that did not facts the state sufficient to constitute and, demurrer, ap- of The trial court sustained the a cause action. declining plead further, judgment pellant to rendered a final from appellant appealed Which to this court. Appellant that
I. contends he is entitled to maintain his action 8102, because, Section (See. Revised Statutes 1929 12, Act of 1921, August 4, 1921, pp. Laws Ex. Sess., 167) 1st. 131 to “the com may sue and mission be in sued its official name, and for of purpose legal
the suit and other proceedings, service secretary.” urges right He also his to maY maintain the instant action under the authority of the de cision of this court in of the case State ex High rel. State way Bates, Commission v. In that copart case two doing ners under business the of Highway name Commission Com pany, sued the State Commission of Missouri in Jasper County upon for a contract road County. construction in Howard $16,000, petition, in plaintiffs, first count of their sued for the count, they sued and, in the contract, balance due the second con $10,000, damages caused, doing in road work for the the for, alleged arbitrary delays of the tracted the and exactions original from the Commission. These details are taken 419) merely that court, opinion (2'96 in files this S. states in in the suit was for on a contract. Plaintiffs the action county Jasper County in that caused service summons be had commission, constructively upon engineer in Cole an also County Secretary of the The State commission. brought court, original in in prohibition
Commission action this preliminary and the The reason for the writ made absolute. commission, that, was, creating rule under act it is clear County, City, that the domicile of the commission is in Jefferson Cole Missouri, secretary, upon had, since the whom to be must service is there, charge be a be City, resident of an Jefferson office provided by the the Permanent Seat Government. Upon question R. S. com this of domicile of the [See. says: court, Bates, mission opinion in its ex State rel. clear,
“It is Act of the State desired entity sued, to be and the differences between it and the citizens adjusted courts; but it is likewise clear City, County, domicile of the commission is in Jefferson Cole Missouri. Throughout act, sundry provisions clear disclose intent that, plain entity building system make it while a road State, habitat of the commission be in should Jeffer- City, government, and, son further, the seat of that while sued, the State desired that the commission should was to be books, contracts, County, maps, all papers, Cole where kept.” and such like are hardly
It can be said that these words of the would sus- question. tain suit of the be- nature action here Both fore and supra, after decision ex reí V. this court sundry adjusted High- suits which differences arose while the way system Commission was a road for the State. Highway Commission,
Castilo v. Mo. 279 S. W. enjoin by tax-paying was a suit citizens to the defendant from con- structing highway along a state a certain route located de- Howard, though Boone, Callaway, Montgomery, fendant Warren and contended, counties, route, plaintiff St. Charles Was distant *5 Highway one to miles ten from the route described in the State System (Laws 167). Sess., pp. Act 1st. Ex. 131 to The trial a petition and, court sustained to appeal, demurrer the majority opinion in judgment upon court en a banc affirmed the ground bill did not state a cause of action. But that court
848 demurrer, namely, that the ground that of the banc held the first
en
v. State
plaintiffs
capacity
sue,
had no
to
was
well taken. [Castilo
Although
case
were
Highway Commission,
in
there
supra.]
that
dissenting opin
concurring
separate
separate
opinions
two
and two
plaintiffs had
ions,
proposition
from the
that
there Was no dissent
opinion of the
Judge Graves,
wrote the
capacity
sue.
who later
to
opinion,
dissenting
in
ex
in his
Bates, supra,
court
State
rel. v.
said
].
681: “That a
Commission, 279 W.
Castilo v. State
S.
wild,
law, in
the construction
commission has run
and violated
roads,
upon a clean-cut
no influence
surfaces
should have
hard
exposition of the law.”
County,
High-
v.
Liberty Township,
State
rel.
Stoddard
State ex
(decided
way Sup.), S. original proceeding supra), Bates, ex v. before State rel. township a certain respondent to compel to refund mandamus to money placed had to credit township sum of which town- highway two towns that between commission to construct writ so money had used. The the commission ship and any capacity question of not on merits denied to sue. Publishing rel. v. McKinley
In case of State ex Co. the mandamus W. which Was Hackmann, Auditor, S. also decided right Bates, supra, ex rel. v. this court denied asserted before State stationery buy printing Commission to of the State Printing independently of supplies Commission of the statutes governing letting public printing. The court contracts in its said: highway unique if the commission
“It would be situation could legislative sanction, for itself how much would determine without spend for owti maintenance.” its quite Bates, v. ex decision rel. recently
And since the Reynolds County v. State supra, case of State rel. ex (2d) granted court Commission, Mo. S. account directing up set a refund the commission to writ of mandamus Reynolds County $10,668.96 out credit of the sum of county. apportioned road funds state decision of State ex rel. before, as well as after the Thus, we see that Highway Commis- against the has enforced this court body statutory liability of that to be sued. proper cases the sion powers. has Under properly so, commission vast because the And Constitution, 44a, adopted IV of the authority Section Article general 6, 1928, commission election held November highways legislative system of without upon the state power expend $75,000,000 authorized issue of bond the additional action legislative without ac- purpose, like amendment, expend *6 84-9 tion, motor requirements, the excess over of bond issue all vehicle registration Prior fees and fuels. state taxes on motor vehicle System August enactment of Act, approved the State adopted November, 1920, people had at the election held in another 44a of Section amendment, constitutional also known as IV, authorizing $60,000,000, Article for road a bond issue of purposes. prudent pro- Assembly And the General therefore was viding the Act of 1921 that exercised, giving it it has powers Was which ever since
“may If sue and be official name.” subjected Commission, moneys to its con- $135,000,000 with of bond expended trol specified and with taxes other vast sums derived from by annually legislative it liable-to appropriation without were not discipline cases, tbe mon- proper of courts in would be like the (1817). ster of Shelley’s whom we read Mrs. Frankenstein Frank- picked enstein, fragments student, a of bodies constructed out of the churchyards from dissecting-rooms, without a human form soul. strength, passions, The monster had muscular animal divinity. longed active life but no breath of It for animal love and powerful by animal all. It most sympathy, but was shunned evil, and, deformities, being fully conscious of its own defects and sought young persistency to inflict retribution on the student being. who unlike had called it into monster felt it was The friend, beings, revenge other human it murdered Frankenstein, brother and the bride of its creator. It tried to murder eye escaped. However, man, but he monster hid from the of globe, in the Ultima Thule of the Habitable and slew Frankenstein way on his home. of Missouri has not created such a The State monster. by agents or
But the waiver the State for itself its officers or of immunity immunity thing. from Waiver from an action is one agents quite liability or for the torts the officers thing. another This distinction is well: made the case of Smith York, 125 A. N. E. 13 L. R. New N. Y. acquired property New York known as the 1264. The State of Niagara by provided State Reservation for its man statute agement through appointed commissioners, a board of five strung plaintiff tripped fell ov'er a wire on iron Governor. The posts in and sued the State of New York before the the reservation theory of Claims a substantial amount Court negligently placed and maintained the officers and wire had been presented appeal question of the State. The liability immunity of the State for the tortious whether agents had waived Section acts officers and been of its pertinent part York of Civil Procedure. New Code Section reads: jurisdiction powers possesses all
“The Court Claims jurisdiction to hear and' of the former Board of Claims. It also In . . . no case private claim the State. determine State, shall any implied against and no award shall *7 legal except upon such evi- any be made on claim corpora- liability against or an individual dence as would establish equity.” tion in a of law or court gave appeal judgment plaintiff for
The Court of Claims Division, Department, Appellate Third was taken the State to the Ap- York Court of judgment affirmed. But the New where the peals judgment lower and dismissed reversed the of the courts per- is opinion much that Appeals claim. Court of its said The (13 example For question here examination. tinent under 1266) : is not A. L. R. 1. c. is Well settled that the State “The rule injuries arising negligence officers and of its liable for from the or agents, liability such constitutional unless has been assumed legislative quoted.] enactment. cited and [Cases exemption liability of its of the from for the torts
“The immunity depend upon officers from action does not its policy consent, grounds that without its but rests of obligation no by It contended arises therefrom. is [Authorities cited.] obligation respondent . . . this that the State assumed by the enactment of of Civil to the section of the Code Procedure opinion which reference been I made. am of the the section enacted, does not such bear construction. It was not as it seems to me, liability purpose extending enlarging for the of or of the State, declaring jurisdiction solely for purpose but of the Claims, questions liability might Court before which tried. true, urged, “It is as that the section Court of confers jurisdiction State, Claims of the character. The broadest under section, having the terms of the must be treated as waived its immu- nity against private actions as to all claims. [Authorities cited.] thoroughly it is by consenting But established that to be immunity action, nothing State waives its from more. It does thereby liability claimant, concede its in fav'or of the or create a cause of action in his favor which did not theretofore exist. It remedy merely gives a liability to enforce a and submits itself to the jurisdiction subject court, rights any interpose to its law- ful derogation defense. . . . Statutes in [Authorities cited.] sovereignty strictly construed, the State must be a immunity liability clearly waiver of expressed.” must be proposition that subject the State is not to tort with out its consent is too familiar to deserve extended citations of au [Story Agency Ed.) (9 thorities. v. sec. United 319; Gibbons Ed, L. States. Wall. duly appellant II. But respondent corporation has sued as “a organized law,” existing according he contends that Bates, supra, court ruled in State ex rel. v. Highway corporation Commission is a and does not enjoy immunity prerogative sovereign from suit which is State. It is true that the court in its State ex rel. says
supra, (296 420) of the State : entity, powers corporation, “It is an aof established and specific public controlled purpose, but does entity legal sovereign not make No State. contract State, authorized to make is made in the name of this in the but sovereign name of the commission. The State could have contracted public highways name, for the its own but it chose legal entity create a this work.” opinion (296 And the 420) court also said in that S. 1. c. : “Such is the status of this commission. It is not the but State, entity State, a mere created specific for the purpose of con- *8 tracting building highways for the bridges state and and the doing maintenance of the same things and all other pertaining ’’ thereto. But, court, points the in opinion, out that private Commission corporation, is not a business since the General Assembly could not make it such under the inhibition of 2 Section XII Article of the Constitution. “Nor could it General [the Assembly] quasi-public corporation by create a (State such a law” ex Bates, 422). Finally rel. v. 296 W. S. 1. c. the court declares that the Commission corporation is not a as contemplated by what are now 723 Sections (296 Revised Statutes 1929 422-3). opinion goes 1. c. In fact say the no.further than to legal that the entity, commission is a which of course it is. Bates, expressed
But the view's the court in State v. supra, do subject not liability the commission to for the tortious acts of its employees. Appellant servants and heavily leans upon Tompkins v. Board, The Kanawha W. Va. which we later will examine. present say Virginia it for Suffice the that a case (Dunningtons v. President and Turnpike Road, Directors the Northwest 6 Grat Reports, 160), tan’s quoted cited approval in Tomp the case, points kins out the distinction between the instant case and the case which this court Bates, examined in State ex rel. v. supra. In Dunningtons v. President etc. of the Turnpike Road, Northwest plaintiff labor done and material furnished. The trial court sustained a demurrer to the upon ground declaration that de fendant, although corporation, composed was of the Governor officers, organ other state it merely acted an as of the Common effecting wealth in improvement, and as such it was not Road Turnpike Northwest assumpsit. in The subject'to an action Highway Com- be the State might sued, may as 'by and be sue statute Dunningtons relied case The defendant mission of Missouri. Leigh, action Turnpike Road, 10 an upon Sayre v. The Northwest no Virginia held that Appeals of in which'the for tort Court Virginia court But against corporation. would lie action distinguished Dunningtons contract thus case 171) : Reports Sayre (6 sounding tort Grattan’s Sayre Turnpike W.N. case of v. The “It was decided corporation; against this will Road, Leigh, 454, that no action lie against not lie decided, action would was that the all that the case The injury complained of. suit company for the there injury consequential brought a remote and recover declaration, owing that, plaintiff. The averred property of the bridge by company, fell, of a defective construction against plaintiff, mill and dam of was carried the stream court, destroyed. governed which Whereby they The were reasons injury not be maintained holding action for such could that an given.” are not company, rel. Bates ex between facts and issues distinction clearly appears. Sec appellant to raise here issues which seeks and the 1929, provides commission that “the tion Revised Statutes improvement or (9) contracts for construction shall: Let all highways.” Bates, And read ex rel. v. the court as we state obligation merely under performance of its held commission to cited, adju ffid dif contract, court, cases such a even as other ferences arose while the be system. supra]. This distinction
the road ex rel. v. [State non-liability validly for torts tween contracts made *9 authority contract, on applies legal to A when made with counties. county. county, of a account will be enforced the [McDonald County, 217], upheld in this v . Franklin Mo. The contract newly county. case was for a the a courthouse for created by On the hand, quasi-corporations, other are created the “counties Legislature policy not purposes public responsible for and are neglect for the enjoined upon of duties them action the unless given by 36 Mo. This County, v. St. statute.” Louis 555.] [Reardon plaintiff’s last case was an action for death of hus the who, bridge band, traveling highway night, fell off while on a a charged negligence county' and was killed. The defendant bridge. in providing guard upon trial court sus rails the The judgment. tained the demurrer and this court affirmed denying A reason for to the opinion further of this court III. Bates, supra, meaning appellant the scope rel. v. in ex State it, would read into in ex rel. McKin- is to found the case ley Publishing Hackmann, Auditor, 314 Mo. Co. v. This, opinion as was the State v. Bates, judges supra, bywas the court en banc. Four con- opinion J., case. One curred the the Hackmann 'Walker, judge dissented one not sit. As has been did stated heretofore connection, in a reference made to Hackmann the another original proceeding respond- compel mandamus to Treasury ent, Auditor, the State issue a warrant the State pay printing stationery alleged by certain the relator Highway have been furnished to Commission. The per- emptory ground writ was denied purchase printing and stationery for the State Commission was sub- ject governing purchase to the laws by of such necessaries Printing. arriving Commission of Public In conclusion, at this (282 opinion 1010) court in its said S. W. 1. : consider, therefore, “Let- us what manner the State Commission should be classified. It legislative was created 132). (Laws enactment in Sess., p. 1st. Ex. It consists of four appointed members the Governor. Its duties, generally stated, construction, improvement, are the high- and maintenance of ways; auxiliary power and to that necessary end is conferred performance purpose of the main of the creation of the commission. Sess., p. Laws 1st. Ex. by legislative [Sec. Created enactment, powers defined, and clothed with through therein appointment Governor, recognized under all rules of construc- is, tion properly it when classified, a subordinate branch the execu- department. tive As required, such it is mandatory under pro- Chapter visions of payment to secure the of its print- accounts for ing purchase and the of stationery in prescribed the manner in that ” chapter. (Italics ours). opinion reviewed the source the road funds which the State Highway Commission administers, (282 1011) concluded : appears
“It thus that not only public is the fund revenue or state money, very but it is revenue of a extraordinary kind, levied, collected, and held specific State for public uses, two major payment of which is use and retirement of state bonds.”
At time was rendered in State v. supra, the antecedent case of State ex v. Hackmann, rel. supra, was law proposition Commission was “a sub- ’’ department. ordinate branch of the executive State ex rel. v. Hack- mann was not overruled State ex rel. v. Bates. The decision that *10 Commission was “a subordinate branch of the exec- department” utive was essential to the determination of the issues raised in State ex rel. v. Hackmann and given the classification
854 instant, of case. is law the by decision tbe the last named commission a subordinate is having that commission been determined It thus for liable in tort department, the executive branch of grounds policy here- upon of employees and acts of its stated. tofore Board, 19 Va.W. Kanawha Tompkins v. The case of IV. views support his appellant relies upon which
257, point. For the Commission, is not in in tort of the origin history of the Kanawha Board we must look Appeals Virginia to the decision of the Court of of in the Company Early, case of James River and Kanawha v. July decided at the This page 541. Reports, 13 Grattan’s Virginia was known West 1856, when now the State of term, what is Virginia. Virginia was cre region of West Trans-Allegheny as the 20, 1863, as a re to the Union June a state and w'as admitted ated by Civil developed conditions War. sult of from of the case of James River etc. Co. find an examination We Assembly Virginia of Early created company incorporating of Act “An Act the stockholders entitled Company,” passed March 16, James River Kanawha adopted Assembly Virginia by the General Measures theretofore purpose connecting tide of the James River for the waters navigable having Ohio -waters of been found inad with the River the. equate provided of’ object, opening to effect the act for the books company capital for stock of a new which the subscribers Virginia appears was to take ten thousand shares. It thus corporation existed company profit that this was a stock and it public benefit, it derived its as well as revenue tolls laid cargoes Virginia of vessels. After the creation of West as a rights separate state and franchises of the James River Virginia Company were, Legis Kanawha the act of the West Virginia March lature of transferred the State of West [Tompkins the Kanawha and then conferred Board. v. Kan Board, 263], awha l. c. W. Va. The decision therefore of the Virginia Appeals Supreme Board, Court of that the Kanawha West corporation, barge w'as liable loss stock of a cargo salt, negligence caused and its of the Board per given point mitting by logs the Kanawha River to be obstructed driftwood, persuasive cannot the instant case. The con highways and maintenance of roads is one struction of the most government. prerogatives Highways, Roads and ancient [See 23, Encyclopaedia Review, Historical Volume Americana. Also see J., dissenting opinion Walker, Castilo v. State Com l. mission, Mo. Government assumed *11 prerogative posts the control of as a establishment of postoffices quite compared in times with its recent exercise au- thority highways authority over and roads. The of the State of Missouri, through Highway Commission, a branch of its executive system highways completely department, over its established August the Act of 1921. And it would subject interest to rule that the State Commission was employees. the tortious acts of its points V. importance appel- Other of minor have been raised They lant. have been found to be without merit. But a detailed prolong opinion length. examination them w'ould to undue Whatever has been, concerning suability said herein Commission is addressed to the determination of the question of law raised this case and is not to be as a taken state- any ment of the circumstances or cases in which the may be sued. For given the reasons judgment herein of the trial is court Cooley, C., concurs; affirmed. Westimes, C., sitting. opinion C., foregoing
PER Fitzsimmons, CURIAM:—The adopted judges as the court. All of the concur. 541. (2d) Appellant. State v. Ida Miller, Two, February 17,
Division