Newman v. State ex rel. Board of Regents for the Oklahoma Agricultural & Mechanical Colleges , 490 P.2d 1079 ( 1971 )

BLACKBIRD, Justice.

Plaintiff in error’s son and ward, Jack Karns Newman, was injured in an automobile collision between the Volkswagen he was driving and a Ford Station Wagon driven by one Claude F. Jones, allegedly employed by the State of Oklahoma at Oklahoma State University. The collision occurred during the night of December 10, 1965, on a State Highway about 7 miles east of Stillwater.

In April, 1967, the First Session of the Thirty-First Oklahoma Legislature enacted its Senate Joint Resolution No. 19 (S.L. 1967, pp. 718-719, both inclusive), hereinafter referred to merely as “S. J. 19”, waiving this State’s immunity from suit by plaintiff in error for the recovery of any damages sustained in said collision by reason of the negligence of said University’s employees and agents.

When plaintiff in error (hereinafter referred to as “plaintiff”) thereafter instituted the present action, almost 5 months later, to recover the sum of $700,000.00 from the defendants in error, hereinafter referred to as “defendants”, as damages for her ward’s injuries, she alleged, among other things, that the collision was caused by the negligence of Jones and that Jones was acting within the scope of his employment at the University. Treating her action as a suit against the State of Oklahoma (among others), plaintiff attached a copy of S.J. 19 to her petition and plead that the State had thereby waived its immunity from it. Recognizing also the well-settled legal distinction between the State’s immunity from suit and its immunity from liability (33 A.L.R.3d 703, 768), plaintiff also attached to her petition a copy of the Twenty-Fourth Oklahoma Legislature’s Senate Joint Resolution No. 28 (S.L.1953, p. 508), hereinafter referred to merely as “S.J. 28”, and plead that the State had thereby waived its immunity from liability for the negligent acts of its employees.

The trial court sustained defendants’ general demurrer to plaintiff’s petition, in effect, holding that the action was not maintainable as a suit against the State and that the above cited Senate Joint Resolutions (by which the State had allegedly consented to subject itself to actionable accountability) were nullities, specifically declaring them unconstitutional. She thereupon elected to stand upon her petition without amendment; and, after her motion for a new trial was overruled, lodged the present appeal.

For reversal, plaintiff urges both that it is time for this Court to abolish “the doctrine” of State sovereign immunity from tort liability and that the Legislature has accomplished this, insofar as it extends to such liability for the acts of its employees, by S.J. 28. On the other hand, defendants argue that there is no law giving this Court legal basis or authority for overturning this State’s immunity from liability for the torts of its employees, and that S.J. 28 is inadequate as such a law.

We need not enter into a detailed discussion as to the various reasons plaintiff contends, on the one hand, that S.J. 28 is sufficient to waive, generally, the State’s immunity from liability for the torts of all of its employees, and that defendants contend, on the other hand, that S.J. 28 has been recognized as unconstitutional by not being incorporated in our permanent statute books. This would entail treating this Joint Resolution as a law, and might extend to determining whether it is of the unconstitutional variety because of the admittedly special nature of its second paragraph and Section 2 (pertaining, as it does, to the waiver of the State’s immunity from suit by one man, E. F. Christner), or whether, notwithstanding this, the rest of the Resolution (pertaining to a waiver of the State’s immunity from liability for the negligence of its employees) may be considered general in nature (under the criteria prescribed for determining whether laws are in compliance with, or in violation of, Art. S, § 59, of the Oklahoma Constitution) and severable from the Resolution’s constitutionally offensive part. Nor is this necessary because of the Trial Judge’s expressed views, for if his ruling on defendants’ demurrer was correct in result, the process by which he arrived at that determination need not control our decision. See Chaney v. Reddin, 201 Okl. 264, 205 P.2d 310, 8 A.L.R.2d 337, and City of Tulsa v. Thomas, 89 Okl. 188, 214 P. 1070.

Our decision is based upon the character of legislative joint resolutions. In an early case, this Court held that the capacity of such an enactment to alter or modify existing laws is restricted, under the Oklahoma Constitution, to such changes of a temporary character. See Oklahoma News Co. v. Ryan, 101 Okl. 151, 224 P. 969 (2nd syll.). This restriction has been recognized in the later cases of Stephens Produce Co. v. Stephens, Okl., 332 P.2d 674, and Ward v. State, 176 Okl. 368, 56 P.2d 136; and, for the purpose of determining whether legislative enactments effect a change in it, the common law doctrine of sovereign immunity from tort liability has been treated as the “existing law” of this State (in the absence of abrogation of the doctrine by express provisions of our statutes or Constitution) since as early as 1907. In this connection, notice the discussion in James v. Trustees of Wellston Twp., 18 Okl. 56, 90 P. 100, 13 L.R.A.,N.S., 1219, 11 Ann.Cas. 938, and State v. Fletcher, 168 Okl. 538, 540, 34 P.2d 595, 596.

Had plaintiff’s petition alleged facts showing that the vehicle Jones was driving was owned by Oklahoma State University, then this case might present a different issue in view of Tit. 70, O.S.1968 Supp., § 2115, but it alleges no such facts. Inasmuch as plaintiff’s petition contains no allegations to the contrary, we must assume that Jones’s employment is within the ambit of Oklahoma State University’s principal function, which is education. This Court early held that, in Oklahoma, the education of this State’s citizenship is a governmental function. See Consolidated School Dist. No. 1 v. Wright, 128 Okl. 193, 196, 261 P. 953, 955, 56 A.L.R. 152, 156, and other authorities cited in Dahl v. Hughes, Okl., 347 P.2d 208, 210.

As the enactment of S.J. 28 in 1953 can be regarded as no more than an attempt at changing existing law temporarily, and for the primary purpose of authorizing E. F. Christner to sue the State for the alleged wrongful death of his son, we hold that said Resolution was ineffective to abrogate the State’s immunity against the present suit of plaintiff, some 14 years later. Our view that this Resolution lacks the import and effect of a general law abrogating the State’s immunity to liability for the torts of its employees is not inconsistent with the view the Trial Judge evidently had, when, in announcing his ruling on defendants’ demurrer, he stated: “ * * * the Legislature of the State of Oklahoma has not passed any general Tort Claims Act and did not intend to do so in 1953 by that Resolution * * *

In accord with the foregoing, the ruling and judgment of the trial court is hereby affirmed.

BERRY, C. J., DAVISON, V. C. J., and WILLIAMS, JACKSON and LAVENDER, JJ., concur. IRWIN, J., concurs in result. HODGES and McINERNEY, JJ., dissent.