Scates v. Board of Com'rs of Union City

265 S.W.2d 563, 196 Tenn. 274, 32 Beeler 274, 1954 Tenn. LEXIS 374

• Court: Tennessee Supreme Court
• Decided: February 11, 1954
• Status: Published

Opinions

Mr. Justice Tomlinson

delivered the opinion of the Court..

An automobile belonging to the municipality of Union City, Tennessee, while being driven over the streets of that town, came into collision with an automobile belonging to plaintiff-in-error, Charles Scates. The Board of Commissioners of Union City, being of the opinion that the collision was due to the negligence of Scates, brought suit against Scates to obtain a judgment for the damage done to the automobile. Scates was of the opinion that the collision was brought about by the negligence of the driver of the city’s automobile. Hence, he filed a cross-declaration, Code Section 8745, to obtain a judgment against Union City for the damage done to his automobile.

The pleadings disclosed it to be a fact that at the time of the collision this automobile of Union City was being used by the municipality in the exercise of a governmental function, as distinguished from a proprietary function. Therefore, the City demurred to the cross-declaration on the ground that it, the City, was immune from suit in thig matter. From the action of the Court sustaining the demurrer and dismissing his cross-declaration Scates has appealed.

Mr. Scates’ insistence is that Union City waived- its governmental immunity by suing him. Specifically, his insistence is that “when a sovereign sues in our courts to enforce a claim it so far takes the position of a private suitor as to agree by implication that justice may he done with regard to the subject matter and so submits itself to the jurisdiction it has invoked that defenses by way of set-off and of counter-claim are available against it”.

In support of his insistence, Scates cites several decisions of our Federal Courts, including decisions of the United States Supreme Court. However, in as much as the question stated is one as to the public policy of the sovereign affected, the answer to that queston must be determined by the Constitution and statutes, if any, and decisions of that sovereign, to wit, Tennessee.

Article I, Sec. 17 of the Tennessee Constitution provides that “Suits may.be brought against the State in such manner and in such courts as the Legislature may by law direct.” This constitutional provision “carries with it a positive implication that they shall not be brought otherwise or at all unless legislative authority therefor be affirmatively given”. Insurance Co. v. Craig, 106 Tenn. 621, 629, 62 S. W. 155, 157, and means that the State cannot be subjected to litigation at the suit of an individual unless there is a statute clearly and unmistakably disclosing an intent upon the part of the Legislature to permit such litigation. Quinton v. Board of Claims, 165 Tenn. 201, 214-215, 54 S. W. (2d) 953. Tennessee has no statute permitting suit against it for the negligence of its agents or officers.

A municipality is only an agent of the State when it is exercising a governmental function. Therefore, in the exercise of such a function, it has the same immunity from suit as does the State. Combs v. City of Elizabethan, 161 Tenn. 368, 365, 31 S. W. (2d) 691.

Since the immunity of the municipality, as an arm of the State, can be waived only by authority of the Legislature it necessarily follows that, in the absence of a legislative enactment, the officials of a municipality have no authority to directly waive such immunity. May such officials waive it as to a particular individual with reference to a particular incident by bringing suit to recover a judgment against that individual because of that particular incident? In short, can the municipal officials do indirectly that which they are not permitted to do directly? Oh principle, it would seem that such officials have no such authority.

In Moore v. Tate, 87 Tenn. 725, 11 S. W. 935, suit was brought for the State of Alabama to recover a judgment on an alleged indebtedness. The defendant sought to take advantage of the statute permitting the set-off plea,. Alabama demurred to that plea on the ground that it, as a State, “ ‘is not subject to suit, either original or by cross-action. ’ ’ ’ This Court sustained that demurrer, saying: ‘ ‘ The same considerations of public policy which prompted the legislature to prohibit suits directly against the state would lead the courts to hold that she should not be sued indirectly, under the general terms of the statute of set-offs, which do not expressly allow such suits. ’ ’ The statute permitting the filing of a cross-declaration does not expressly or by implication waive the immunity of the State or the immunity of an arm of the State from suit. The instant case falls, therefore, within the authority of Moore v. Tate, supra, and necessitates on precedent, as well as on principle, an affirmance of the judgment of the Circuit Court.

The judgment sustaining the demurrer and dismissing the cross-declaration will he affirmed with costs adjudged against the plaintiff in error and his surety.