17 N.W.2d 380 | Iowa | 1945
State of Iowa and Iowa State Highway Commission brought this action at law against F.W. Fitch Company for damage to a highway bridge over a river on Primary Highway 69, alleging defendant's truck and trailer were negligently driven into a corner of the bridge. The petition contained no allegations of specific negligence.
The answer denied the allegations of negligence and damage, alleged the accident was caused by the negligence of the Highway Commission in placing a sharp turn in the approach to the bridge, due to which the truck struck the corner of the bridge while being carefully driven in a fog; and also alleged that neither the State nor the Highway Commission was empowered to maintain the action. Defendant also counterclaimed for damage to the cargo of the trailer.
Plaintiffs moved to dismiss said counterclaim, asserting the *210 same could not be maintained against either of them. Thereafter, upon application of defendant, the court made a separate adjudication of certain law points, under Rule 105 of the Rules of Civil Procedure, and at the same time sustained the motion to dismiss the counterclaim. From said adjudication and order this court granted appeals to defendant and plaintiffs. Defendant, having first filed notice of appeal, will be referred to as appellant, and plaintiffs as appellees.
[1] I. Bridges are a part of public highways. Subsection 5 of section 63, Code of Iowa, 1939. Authorities are substantially in accord that action will lie in a proper case against one who wrongfully or negligently injures a bridge or a highway. 1 Elliott on Roads and Streets, Fourth Ed., 98, section 77; 25 Am.Jur. 635, section 340; 8 Am. Jur. 972, section 84; 11 C.J.S. 1135, section 99; Township of Livingston v. Parkhurst,
"If the bridge, erected by the town, and which they are bound to maintain * * * is destroyed, either wantonly or negligently, by others, the town may, upon what we think are unquestionable principles of common law and common justice, commence their suit against the wrong-doer, and recover all such damages as they have sustained by his wrongful act * * *."
This common-law remedy is not necessarily superseded by statutes providing penalties or new remedies. Struble v. Republic Motor Truck Co.,
This bridge on Primary Highway 69 was constructed by Decatur county in 1921. In 1927 the powers and duties of county boards of supervisors with respect to the construction and maintenance of primary roads were transferred to Iowa State Highway Commission (Code, section 4755.33) and refunds *211
from the primary-road fund were made to Decatur county and other counties for their expenditures in building bridges. Chapter
When highways outside of cities or towns are established across property owned by others the fee title to the land usually remains in the adjoining landowners. The effect of such establishment is to give the public the privilege of travel thereon. The ownership of such easement is in the State, for the benefit of the general public. Although Decatur county constructed, maintained, and had the immediate control of the bridge, it did not own the same. The ownership was in the State, as trustee for the general public. The supreme control was in the State. The rights and powers of Decatur county therein were only those expressly delegated to it and its board of supervisors by statute, or implied as essential to the performance of such delegated duties. Prior to 1927 Decatur county had a qualified interest in the bridge, if we may use that expression, growing out of its powers and duties of construction and maintenance. Because of such duties, damage to the bridge then would have been damage to Decatur county. However, all rights, powers, and duties of Decatur county therein had been terminated before the accident here in question. Hence appellant's contention that this action should have been brought by Decatur county is without merit. Dickinson County v. Fouse,
[2] II. Iowa State Highway Commission is merely an agent of the State, acting for and on behalf of the State within the powers conferred upon the commission by statute. Long v. Highway Comm.,
[3] Among the powers and duties of the Highway Commission are the construction and maintenance of primary highways. The Commission has not been given the power to maintain suits *212 generally and prior to 1937 it was not empowered to bring any action to recover for damage to primary highways.
In 1937 the legislature enacted chapter 134, Acts Forty-seventh General Assembly, entitled Motor Vehicle Law. Said act is now chapter
"Liability for damage. Any person driving any vehicle, object, or contrivance upon any highway or highway structure shall be liable for all damage which said highway or structure may sustain as a result of any illegal operation, driving, or moving of such vehicle, object, or contrivance, or as a result of operation, driving, or moving any vehicle, object, or contrivance weighing in excess of the maximum weight in this chapter but authorized by a special permit issued as provided in this chapter. * * *
"Such damage may be recovered in a civil action brought by the authorities in control of such highway or highway structure."
The Highway Commission is in control of this bridge and its counsel contend said section empowers it to maintain this action. The petition charges the vehicle was negligently driven into a corner of the bridge. Section 5035.24 does not mention negligence. However, it is argued that chapter
Counsel for the Commission cite State Highway Comm. v. Stadler,
In the original Motor Vehicle Act, and in chapter
The first part of the section refers to "any illegal operation." The context indicates this includes any operation contrary to any of the requirements of the division captioned Size, Weight, and Load, not within the exceptions listed in section 5035.02, but that it does not include operation which may be negligent at common law or negligent because of noncompliance with other provisions of the Motor Vehicle Act. Nor does the language of the statute justify a contrary conclusion. The words "illegal" and "negligent" are not synonymous and we are not prepared to say they should be here so interpreted. Had the legislature intended the statute to include damage resulting from negligent operation such intent could have been expressed in appropriate language. It is our conclusion State Highway Commission is not empowered to maintain this action. The adjudication of the trial court upon this proposition is reversed. *214
[4] III. It is the general rule that, independently of any statutory provision, a state may institute a suit in any of its own courts, whether required by its pecuniary interests or the general public welfare. 49 Am. Jur. 292, section 80; 59 C.J. 299, section 458; Marshall Dental Mfg. Co. v. Iowa,
[5] IV. Appellant predicates error upon the order of the court dismissing its counterclaim. Appellant does not contend it could maintain an independent action of this kind against the State or the Highway Commission, but it asserts that when sued by the State or by one of its agencies it may maintain a counterclaim when the basis thereof grows out of the transaction in suit. Appellant's theory is that when a state voluntarily files a suit and submits its rights for judicial determination it waives any right to plead its immunity from suit in connection therewith.
The counterclaim is based upon an alleged tort. 49 Am. Jur. 288, 289, section 76, states: *215
"* * * the general rule is that the exemption of the state from liability for torts of its officers and agents does not depend upon the state's immunity from suit without its consent, but rests upon grounds of public policy which deny the liability of the state for such damages. It is based upon the sovereign character of the state and its agencies, and the absence of obligations on the part either of the state or such agencies, and not upon the ground that no remedy has been provided."
In the language of Manion v. State Highway Comm.,
"There is a distinction between sovereign immunity from suit and sovereign immunity from liability. The latter exists when the sovereign is engaged in a governmental function. The former may be waived without a waiver of the latter."
The decision in Post v. Davis County,
Hence the order dismissing the counterclaim was not erroneous. This conclusion renders unnecessary the consideration of appellant's theory of waiver of immunity from suit or of other propositions presented by appellees in support of the ruling and order.
[6] V. One element of appellees' claim was the cost of maintaining a detour while a temporary bridge was constructed. Appellees have appealed from the adjudication that such cost is not a proper element of damage. They cite no authorities in support of their contention and the proposition has never been determined by this court. Various expressions have been used by other courts in stating the amount allowable for damage to public bridges, such as cost of repairing, cost of rebuilding, amount necessary to repair or restore, expense incurred to rebuild *216
and repair, amount necessary to restore to former condition. State Highway Comm. v. Stadler,
The question of the expense of maintaining a temporary detour was not considered in any of the foregoing cases except State Highway Comm. v. Stadler, supra, which followed State Highway Comm. v. American Mut. L. Ins. Co.,
Under the circumstances we are constrained to hold that the cost of maintaining the detour is not a proper element of damage in this case. This accords with the adjudication of the trial court.
As hereinbefore noted, the adjudication of the trial court that Iowa State Highway Commission may maintain this action is reversed. Upon all other propositions the adjudication and order are affirmed. — Affirmed in part; reversed in part.
*217All JUSTICES concur.