*1 shоuld of the court discretion confronted. The sound not be disturbed. of the district stated, the judgment
For the reasons affirmed. court was correct and is
Affirmed.
Roy
Shirley
the Estate
Stadler,
Administratrix
Gas,
Inc.,
appellant,
Stadler,
Curtis
deceased,
appellees.
al.,
et
corporation,
Smith & Williams, Johnson, Oldfather Wright, Thomp- Cline, Regents. Board son, appellee Satterfield, Gatz, J. Dent, & Clinton Kay Maupin, Gas, Inc. Girard, for Curtis appellee Donald E. Carter, Spencer, Heard before White, Boslaugh, J.,C. JJ. McCown, Newton, Smith, Boslaugh, J. administratrix the estate an action
This is his damages to rеcover in- deceased, Stadler, of Roy was injured May deceased on death. jury gas explosion 1965, in a caused defective valve on a water a residence heater in leased deceased University defendant, Board of Nebraska. died June deceased *2 injuries explosion result of the in sustained the on Mav .20, 1965. petition alleged employees
The second amended that defendant, of Inc., the Curtis the Gas, had serviced water request heater in March at of the and authorization the Regents; Inc., Board of that Curtis had Gas, notified Rеgents Board the of that the valve was defective but repair that each defendant had failed to the heater or notify the of its defective condition; deceased that and Regents negligent failing keep the Board of was in premises failing the in a safe condition in to warn and the deceased of the defective valve. petition alleged
The second amended further that the Regents acquired August property Board of had the in May 1947; that it had been leased 1964; to others since February it was to the deceased that leased оn or about relationship 27, 1965; that there the was between Regents the Board of other that of deceased than leasing property by tenant; landlord and that the of Regents Board in of “was same nature capacity private leasing parties dwelling as that of Regents rent”; houses for that the Board of “was acting beyond scope any governmental capacity of leasing property it for which was created” the deceased. in general Regents A demurrer filed the Board of was dismissed as to sustained and the action that defendant. appealed. administratrix The has question presented
The is whether the of Re- Board gents University Nebraska liable of agents employees. negligence of Board agency Regents that of contends state and of liability. immune from as such Regents University
By of statute, the Board of corporate” “may body in “a that constituted Nebraska § 85-105, sue and be sued.” R. R. S. 1943. This statute permits the maintenance an action the Board Regents any immunity it is not a but waiver from immunity liability. A consent suit is waiver permits preexist-, from suit enforcement ing liability. li- It is from not a waiver pre- ability not create a cause action does viously existing. State, 223 N. Shear v. Neb. State, W. Kent Neb. plaintiff renting contends residence that nongovern-
property case to the deceased this was a proprietary activity mental Board of to which the not extend. does Regents argues The governmental tivity all of Board of its activities engages nature in no ac- and the state nongovernmental proprietary aof nature. Although authorities, there some conflict recognized court agencies may the in doctrine
engage proprietary there activities and they by incur liabilities from which otherwise would Chimney be immune. In Sorensen v. Rock Public Power *“* * 293 this 350, 121, court said: Dist., 138 Neb. through corporate by creations, a itself state, when enterprise, especially commercial embarks in when an usually by carried in character or which on individuals sovereign private companies, character is ordi subject regulations narily it is like waived, calling.” engaged persons Valley See, also, Platte same County Lincoln, & Dist. v. Public Power Irr. People 202, 14 W. 155 A. 144 N. R. 584, Neb. L. 2d Superior 178 754, 29 2d P. 40 A. L. R. Court, Cal. 2d 2d 919. plaintiff alleged there case the that was
In this
Regents
relationship
the Board
between
tenant,
of landlord
than
other
that
deceased
Regents
leasing
property
Board of
that the
capacity
private
that
nature and
as
same
was
parties leasing dwelling houses for
In Pintek v.
rent.
County
Allegheny,
Super.
186 Pa.
366, 142 A. 2d
(Allocatur refused),
Superior
Pennsyl
Court of
county,
borough,
vania held
a
district,
school
a
operating
building
apartment
they
which were
an
engaged
proprietary
had bid in at a tax sale,
in a
were
activity
injuries
injured
and liable for
to a child who was
escape.
court,
lаnguage
on a defective fire
In the
they
“conducting
operation
were
on
a business
premises
distinguished
governmental opera
as
from a
See,
tion.”
Morris
also,
v. School
of Mount Leba
Dist.
non,
393 Pa.
The ultimate determination in case, this to whether any part there is basis Board Regents plaintiff, necessarily depend upon to the will Upon present the facts. state of the record, demurrer of Board should have been overruled. judgment of the district court is reversed proceedings.
the cause remanded for further Reversed and remanded. J., dissеnting. Newton, necessary respectfully
I find dissent from the majority opinion. fully agree govern- I that the rule of mental should relaxed as it to the relates Nebraska. The State of obsoleteness of the rule was pointed Justice Edwards well the case of out Wil- City Detroit, liams v. Mich. N. W. 2d “* * * it is: said, ancient when he from the rule inherited monarchy
days pro- absolute which has great injustice By doing in our courts. ductive of so rule), join major (eliminating we trend righting age-old country wrong.” of an toward In- person logic that a dictates run over deed, state- *4 right the should same to truck have rеcover owned as by privately owned truck. run over disagree one power to immunity that abolish the I judicial be should in Nebraska exercised doctrine government. has that the state said branch of been conception judicial having originally doctrine judiciary. a conclusion abolished Such be should does necessarily in mind It must be borne follow. antedates state constitutions that this our doctrine adopted many of our state constitutions were in Nebraska. this in mind. case rule Such provision fol- have a constitutional In state we legisla- may sue be suеd, “The lows: provide by manner in what shall what ture law brought.” §V, Constitu- 22, Art. courts suits be shall tion of Nebraska. immunity majority
A adhere to of the states many still abrogated those which have it doctrine and municipal corporations have refused as to charitable and abrogate insofar as the state concerned. Wiscon it abrogation complete of the doctrine sin announced Holytz City Milwaukee, 17 2d Wis. v. any case in which the I am unable find but
2d actually abrogated it has held that was Wisconsin court In the state itself. this Wisconsin in a tort action destroyed applicаbility case, court, effect, abrogating for tort li rule ability by referring to Wisconsin Constitution which provides: shall direct in what “The brought against suit courts and in what manner say: on went “The It then decision in the state.” nonliability state’s defense of removes the at bar the case upon sovereign no effect state’s torts, it but only upon right to be sued under constitution abrogation announced Minnesota of the doc consent.” Spanel prospectively in Mounds View School trine 279, 118 Minn. W. N. 2d but in No. Dist. purpose specifically “Nor stated: our case sovereign as to the state itself.” abolish having similar states other constitutional A number refused likewise abolition of have provisions ground that the constitution vested doctrine
11
legislative
such
in the
not the
government.
City
See,
Wilson
of Cincinnati,
branch
v.
(Ky.
303,
172
175 N. E.
Bach v. Bach
725;
Ohio St.
2d
App.),
52;
288
Hill v.
286
Beeler,
S. W. 2d
To the same effect are
v. Board
Regents,
There
govern-
is one factor
the doctrine of
immunity
mental
which sometimes leads to confusion. The
readily
doctrine
distinguish-
consists of
different
two
principles.
able
§
p.
S.,
§
See 81 C. J.
States,
p.
immunity
1300. The first is
suit,
from
liability.
second,
The Nebraska constitu-
provision, adopted
tional
when the
rule
universally recognized, incorporated
was
prin-
first
ciple, but not thе
our
second, in
Constitution. This left
governmental agencies
position
best demonstrated
pertaining
our law
counties.
23-101,
Section
R. R.
S’.
authorizes counties to “sue and be sued.” Yet
*7
always
county
Nebraska
purely
have
courts
held that a
is
Legislature
powers
creation
a
the
of
and
no
has
charged
except
is
no
and
duties or liabilities
such
upon
by
Legislature.
as are
or laid
it
conferred
damages resulting
“Counties are not liable in
from the
negligent
discharge
tortious
their
acts of
officers in
or
duties, in
of their official
the absence of a
creat-
statute
liability.”
ing
County
such
Dawson
Irr. Co. v. Dawson
County,
106 Neb.
N.
See, also,
W.
Frickel
County,
Lancaster
115 Neb.
213 N.
W.
Stit-
County, 139
zel v. Hitchcock
Neb.
In the engaged Regents assumption was the Board assumption “proprietary” is unwar- function. Such in a appear, acquired the house was does not ranted. How Nebraska does authorize the law of but since еngage business, the real estate in Board acquired govern- presumed that was it must be certainly capacity. There between distinction mental single property acquired renting isolated so of an engaging pursuit functions and the activity gener- industrial of the nature business or “proprietary.” ally This not a case denominated utility enterprise by similar operation a muni- of a corporation. cipal *8 district
I judgment conclude should be affirmed. J., J., in Carter, dissent.
White, C. concur J., C. White, dissenting. embarking my opinion, In the court itself on a is power Legislature’s “private abrоgating enterprise” in liability immunity to basic to the state’s control limit majority opinion v. State for cites Shear tort. The (1929), to note 130, fails 865, 223 but 117 Neb. holding has not “The basic as follows: right granted any recover one the negligence any damages officers, the state for legislation agents, employees, en- is or and until such recovery against had for such acted, can be no negligence.” (Emphasis supplied.) precise hold- This ing State, v. 147Neb. was reaffirmed 1946. Schmutte 193, 691. This rule follows overwhelm- N. W. 2d ing authority. §§ weight S., States, 130, 81 C. J. See pp. questioned 1137, cannot 1143. It agency a direсt state and is Board of is immunity. cloaked same public policy
Beyond in- the other considerations sovereign doctrine, the reason herent in the tersely nonliability special rule for tort for the expressed Sichel, 127 U. S. Robertson S. government “The Ed. Ct. 32 L. as follows: wrongs, responsible misfeasances, or for the itself not duty, negligences, or omissions subordinate agents public employed service; officers or person guarantee any undertake to it does agents fidelity any employs; whom it of the officers or operations, in it, in all its end- involve since that would difficulties, embarrassments, losses, less public interests.” subversive would be whereby state has assumed' no statute There liability agents; negligence of its officers sustaining principle of law established I can find statutory assumption. of such the absence *9 change province Legis- To law is substantive of lature, not and of court. agree
While I other with the filed herein dissents renting of a en- this house was in sense business terprise Legislature “proprietary” a point function, I out that Regents,
has not
of
Board
authorized
agency,
a
enterprise
private
state
to еmbark on a
or commercial
engage
“proprietary” capacity.
a
Its
management
property
control and
to
is incidental
part
performance
a
of its
func-
operation
management
University
tion of
Judge
points
Nebraska. As
Newton’s dissent
out, the
analogy
holding
liability
our cases
to
counties free from
provided by
controlling.
unless
statute would seem to be
opinion
majority
Chimney
The
cites
v.
Sorensen
Rock
Public
Dist.,
Power
138 Neb.
By Legislature fiat we sever from the power liability state’s determine the for tort. power sever its to determine But we cannot whether such Legislature judgment enforced. can be can still judgment any part pay of such all or formulate payment power fit, as it sees any criteria anyone suggest Legislature Would now. has appropriate necessary mandamused could
17 graphically funds? This that what situation illustrates doing today usurps proper we con our trary tо to the division the constitutional command as powers government. legislative body of our state plenary of this state over the absolute control sug majority state’s gest Even the finances. would power Any otherwise. on the create a treasury statute, and state must be derived from power liability. courts have no inherent to create p. Advisory Opinion § 81 C. J. S., 1134; States, Armory Governor, 397; Fla. So. 2d Com Ky. mission 2d Palmer, State S. W. *10 ex rel. Plant Commissioners, v. Board of W. Va.
2d 399. The is two functions legislative specific nized in the rule that even where authority agency may exists, for suit an the state not sued be in tort if there are no available for satis funds judgment, power reposed agency faction aof noor raising necessary satisfy recovery for the funds to against § p. S., it. 81 States, C. J. 1144. In Univer sity Maryland (1938), Maas 173 Md. 197 A. 123, said: “The cases and else decided here recognize principle purely affirm where and governmental agencies, of their relation because to the state, are entitled to suits as is the state expressly itself, unless the has authorized against brought it, suits but to be to sue though they restrictions, not free from even is expressly are not legislature, by the made for this court hаs may money not held that suits be unless has maintained appropriated payment damages for the of such agency awarded, is itself authorized to purpose.” money raise for that profits University or funds from a busi-
The activity pay judgment such a or industrial ness Legislature might might appropriate funds payment. conclusion from The all of this is exclusively legislative power inevitable—this is prerogative remain and should so. created,
Now does this uncertain course is Legislature’s provision power constitutional under the limiting adopted prevail? still today merеly Is a the rule act Legislature’s advisory in nature? Is the power political agencies to create subdivisions power In the define their liabilities limited? “proprietary” wilderness of nebulous doctrine of Legislature functions, can this court and the avoid con- flict and confusion? power imposed judiciary
The of restraint tendency power usurp the power of self-restraint. policy objective to achieve laudable is all too prevalent. principle power of division of should lightly. perhaps is our not be paramount duty solemn and crucified preserve preserve it. How can we honoring doubt, it in the there breach? And if judicial requires self-restraint resolution the doing today very power. exercise of that What we responding time,” the “felt necessities of the under judicial justify guise power. The does not end objective judicial impatience born means and accomplished by usurpation. should not be join JJ., this dissent. Newton, Carter J., dissenting. Carter, fully J. The Newton,
I concur with the dissent filed *11 opinion concurring McC'own, J., fails to dis- filed enterprise competition tinguish a business between private that are incidental and transаctions business governmental power. Many only administration of to the government private are also acts done incidental illogical say general completely’ persons. It is separated powers distinct governmental be into shall purpose-of accomplishment necessary of the to this acts authority grant hold that those performed beyond persons by private may are be - sovereign immunity It doctrine. the reach may not or its fundamental that the state subdivisions legislative engage proprietary business without authority. agents of its torts of the state for the
The It employees doctrine. a much broader rests on right sovereign free to be involves except it is waived extent that of such to the govern- abrogated by Legislature, the or branch policy. public The ment matters of which determines abrogated Legislature not waived manner and in what nor has it in what tort, said brought against the state courts tort actions for required 22, Constitution as Article section V, Nebraska. sovereign immunity has been the doctrine governments since our
of the in state federal land system government has been estаb- constitutional many review writers lished. It true that text and complained inequities doctrine and have limitation, but in have advocated its abandonment every they that such have conceded almost instance firmly legislative judicial. I con- not am action opinion majority exercises a that the vinced by judicial function fiat. application country have had
The courts of this numerous occasions. them on of the doctrine before reported has ever so said, court decisions no In all a factual situation find, I have able far proprietary rule. here, comes within such as have we County upon opinion majority Pintek v. relies Super. 296, an inferior Allegheny, 142 A. 2d Pa. holding. holding But the decision, to sustain Pennsylvania statute author- on a based of that court is izing bearing operation a factual situation concurring opin- present case. The resemblance single support it, case to because cite ion does hardly possible support it. seems none to there judges that have served over the learned that all of *12 years appellate country on courts of this could simplе expedient proprie- have overlooked so as the tary principle escape sovereign to reach im- munity long prin- doctrine. The establishment ciple support dearth abrogation, being theory pro- whether on prietary otherwise, function as herein or adds defined majority opinion force to the view that en- is an powers Legislature. croachment on the the function of courts to declare the is and law as it they not as like to would have it. Judicial restraint meticulously guarding against should be in exercised powers рrovision violation of the division of the Con- ought, impose upon stitution. This least, it- at imposes self upon the same restraints that it the other government by seeing divisions of to it that no claimed equity, appealing may infringes upon however be, principle fundamental Constitution. Legislature
Here the has not authorized the Board Regents proprietary enter into business, nor has Legislature abrogated immunity or limited the provided of the Board of from tort, or in what brought. manner and in what courts such suits shall be plaintiff’s These failures alone claim. defeat join J., J., C. this dissent. White, Nеwton, McCown, J., concurring. immunity
The doctrine of from tort liability in the United States has been considered and challenged for decades. As foundation articles Liability era, Borchard, see Tort, Government Immunity 1, 6, Yale L. J. and Hamo, Tort of Munici pal Corporations, Q. 4 Ill. L. 28, governmental-proprietary initially distinction de- veloped municipal corporations in connection with or quasi corporations state, as a means of constrict- ing broadening the area the area of lia- bility, was extended the state itself. See Annotation, dependent gov- Stаte’s tort proprietary function, nature 40 A. L. R. ernmental 2d 927. “governmental-proprietary”
The rationale behind public entity dichotomy *13 is in a is involved when governmental liability, function, it immune from tort proprietary in a function, involved it loses the but when immunity. “public, sovereign, po- of The terms cloak mandatory, legis- discretionary, state, essential, litical, interchangeably “govern- have been used lative” with “private, corporate, quasi-private, mental.” The terms nongovernmental, nonessential, ministerial, commercial, permissive” interchangeably “pro- used have been with prietary.” Legal Commentаry American See, Rebko, on Municipal Liability, the Doctrines of Tort 9 Law and Con- temporary Harper Problems, 214, 218; 2 & James, Torts, p. might § liability 1620. These terms 29.5, be called nonliability labels. years
During past judicial opinions the in increas- ing process whittling volume have shifted from a of sharper away including complete attack, to a much ab- rogation of doctrine in several states, which, in most by legislative instances, has followed See, reaction. Thoughts American Some Law of Governmental Liability, Rutgers (1966); L. Tort Rev. The Role Abolishing Immunity, of the Courts Governmental (1964), L. J. 888. Duke govеrnmental-proprietary
The distinction is unsatis- consequences factory. The complete immediate and abrogation doctrine, of the all with of its ramifications, unsatisfactory. The former, is likewise however, does case-by-case provide a modification of the doctrine of governmental pattern in the traditional solution. judicial here indicate
The dissents the basic conflict longer in the area of whether the old doctrine of governmental from tort obsolete, question only responsibility with but power thorough courts to reform it. For a dis- responsibilities leg- relative cussion courts and area, see The Peck, in this Role of islatures the Courts Legislatures Reform of Tort Law, 48 Minn. L. Rev. Supreme Court of Schaefer Illinois
Justice problem precedent policy expressed ef- most speaks past; fectively. policy “Precedent goal present future. The and the we seek proportion into takes account in due is a blend which past present. -and the needs of wisdom government responsible agencies of for the Two responsibilities proper each has other blend, but as well. increasing must deal the ever de- operations. It has tails of little time and job keeping for the little taste common law cur- busy adjudication courts are with the rent. of in- Inertia and the controversies. innate dividual conserva- lawyers work tism change.” *14 Chicago U. L. Rev. 3, majority opinion here does- not While constitute complete abrogation immediate entire doc- governmental immunity implica- in Nebraska, its trine suggest desirability tions action. joins in this concurrence. J., Spencer, v. Everett Muck, B.H. Wellnitz, appellant, appellee. 2d 1
Filed June 1967. No. 36500.