Untitled Texas Attorney General Opinion ( 1944 )

-E A'rrom GENE-
OF TEXAS
Avs- 11.-
GROVER SELLERS
Honorable D. C. Greer
State Highway Engineer
Austin, Texas
Dear Sir: Opinion No. O-5790
Re: State Highway Department
Liability for negligent opera-
tion of Ferry.
Your letter of January 6, 1944, addressed to the Attor-
ney General, has been received. The pertinent facts stated in
your letter are as follows:
'On Nov. 6, 19'13,the motor ferry 'Jefferson'
operated by the Texas Highway Department between
Galveston Island and Port Boliver was blown by a
storm into the cluster piling at the north side
of the entrance to the landing on the Bolivar
side. The Impact was great enough to cause all
vehicles parked and blocked on the deck of the
boat to move forward, resulting In damagetothree
vehicles. A claim has been flied with the Depart-
ment for damages to one of the motor vehicles Fn
the sum of $136.83 by the Cook Paint &Varnish
Company of Ft. Worth. ......Will you please ad-
vise me if the Texas Highway Department Is liable
to the Cook Paint & Varnish Company for the dam-
ages to the vehicle resulting from the Incident
outllnad above and If so what procedure must be
followed by the Cook Paint & Varnish Company to
effect collection of their claim?"
The application of the law ln regard to thls State of
facts hinges on the question as to whether or not the State,
by and through its agency the Texas Highway Department, was
performing a governmental function or.one merely industrial or
proprietary in character, In the operations of the ferry in
question.
In the case of State vs. Elliott, 212 S.W. 695, decided
In 1919 by the Galveston Court of Civil Appeals and in which a
Writ of Error was refused, It was held that the State in the
operation of a railroad was performing an lndustrlal or proprie-
tary function and not a strict governmental one, and thereby Was
Honorable D. C. Greer, page 2 O-5790
liable for damages for the injury of an employee. In this case
it was said:
'When a state embarks in an enterprise which
1% usually carried on by Individual persons or com-
panles, it voluntarily waives its sovereign character,
and is subject to like regulation with persons en-
gaged in the same calling. And it Is not true
ln any such broad sense as aipiliant contends that
a state cannot become liable, without contract, for
tortlous conduct of those representing it. Ordinarily
officers and agents performing duties prescribed by
law in the ordinary affairs of the government violate
those laws or exceed their authority when they per-
petrate wrongs. For such conduct no liability of the
state arises. But sometimes the officer or agent
acts for the state, as did those Fn charge of this
railroad, in doing the very things prescribed by the
law under which he acts, in doing which he commits
a wrong to another. . . . . The contention that the
state is liable in this case asserts nothing novel.
Other states have owned railroads, canals, and other
businesses, and have accepted the consequences of
their ownership of the Institutions and business,
generally by statute, as in the case of Georgia with
reference to its rallroads, and of New York in
reference to its canals. The declslons in those
states show that they have assumed full liability
for all such claims as we present here. The sugges-
tion In appellant's argument that the ownership and
operation of this railroad by the state constituted
a part of the ordinary conduct of governmental
affairs seem not to need extensive notice. It seems
too plain to require comment that the manager and
those in charge of this railroad were not engaged
in the performance of duties to the state incident
to the conduct of Fts penitentiaries and care for Its
convicts. Such an argument disregards all distfnc-
tions in government."
In the case of Brooks v. State, 68 S.W. (26) 534, de-
cided by the Austin Court of Civil Appeals Ln 1934, and in which
a Writ of Error was denied, lt was held that the State was not
liable for injuries received by an employee of the State Highway
Department while Fn the employ of said department, such Injuries
being caused by the negligence of a fellow-employee while they
both were engaged in repairing a state highway, the opinion
stating that:
- .
Honorable D. C. Greer, page 3 O-5790
“It is now settled that the location, dealgna-
tlon, construction, and maintenance of state hlgw-
wags by the highway department aa an agency of the
state Is a governmental function. It la likewise
settled that the state ia not liable for the torts
or negligence of its officers, agents, or servants
engaged in the performance of a governmental func-
tion, unless it has expressly assumed such liabil-
Appellant relies In large measure on
%‘caie*o; State v. Elliott (Tex. Civ. App.) 212
s.w.~695,6gg, wherein a recovery against the state
was affirmed for damages growing out of the opera-
tion by the state of a railroad. Thls recovery was
based clearly, we thLnk, upon the principle that
the operation of such enterprise was not a govern-
mental finctlon, but industrial or proprietary in
character; and the holding in that case is not in
derogation of the well-established rules relating
to strictly governmental function8 such as the one
here involved. It does not, therefore, control
the issues here presented."
In the case of Martin v. State, 88 S.W. (26) 131, It
was decided by the El Paso Court of Clvll Appeals Fn 1935 that
a highway worker injured by dynamite blast set off during lunch
hour, contrary to rule and custom, was not entitled to recover
against State and Highway Commission on theory of breach of con-
tractual duty to furnish safe place to work. This case and an
earlier case cited therein, State v. McKlnney, 76 S.W. (26) 556,
follow Brooks v. State, supra, and they all Involve actual re-
pair and maintenance of a highway and the injured partfes were
hurt by fellow-employees, but as the controlling factor is the
capacity In which the State acted the principle of law Involved
extends to the class of litigation involved hereln.
In 1933 by H.B. No. 196 of Gen. Laws, 43rd Leg. 1st
Called Session, the Legislature authorized the State Highway
Department to purchase or construct, and malntaln, operate and
control ferries on certain waterways where the ferries connect
designated.state highways, and the ferry in question is operated
under and by virtue of thFs authority. There is no expressed
assumption of liability on the part of the State in regard to
such power.
If the operation of this ferry by the State comes under
the term "maintenance of a highway", by reason of connecting the
two ends of the highway and allowing traffic to Continue across
same, then Lt would be reasonable to assume that in the operation
of the ferry the State is engaged in the discharge of a govern-
mental function. The Texas Supreme Court held Ln the Case Of
Honorable D.C. Greer, page 4 O-5790 i
Dallas County v. Plowman, 91 S.W. 221, in defining the word -
"maintenance', as used in a tax law, as follows:
"The purpose of the Legislature in making the
amendment was to increase the capacity of the County
to malntaln a system of public roads, and the word
'maintenance' must be held to include all of the
things necessary to be done to accomplish that pur-
pose."
The purpose of a highway being to allow persons to
travel under their own power and control from one place on it
to another with a minimum of difficulty, It certainly stands to
reason that anything bridging an Impassable gap in a hlghway,
whether an immovable bridge or a movable ferry, is necessary in
carrying out this purpose.
It is therefore the opinion of this department that the
State in operating such ferry was engaged in the maintenance of
its highway system which Is a governmental function, and It Is
not liable to the Cook Paint & Varnish Company for any damage
that may have been sustained by It due to the negzlgence of the
State's employees in operating the said ferry. This holding
renders unnecessary the answering of the last part of your
question.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By s/Robert L. Lattimore, Jr.
Robert L. Lattlmore, Jr.
Assistant
RLL:gm:wc
APPROVE) JAR 28, 1944
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Commfttee By s/AW Chairman