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June 28, 1983


Original Proceeding in Prohibition Preliminary Order Made Absolute.

Motion for Rehearing Overruled, Transfer Denied August 30, 1983.

Before Somerville, C.j., Presiding, Wasserstrom, Turnage, Clark, Manford, Kennedy, Lowenstein, JJ.

The opinion of the court was delivered by: Clark

On petition by the Missouri Division of Family Services, a preliminary order in prohibition issued to the Honorable James Moore, Associate Circuit Judge, *fn1 directing him to refrain from proceeding further in the case of James D. English v. Missouri Division of Family Services, et al., a suit in damages for wrongful garnishment. We now make the preliminary order absolute.

The facts of the underlying cause, to the extent pertinent here, are not in dispute. English was due a federal income tax refund for 1981. Relator intercepted that payment on the mistaken calculation that English owed child support on a judgment assigned to relator by English's former wife. Relator deducted $266.00 and sent the balance to English. This suit was commenced to recover the amount deducted and for other damages, both compensatory and punitive. At oral argument, counsel agreed that the mistake was rectified some time ago and payment of $266.00 has been made to English by relator. Damages for mental distress, humiliation and loss of reputation thus remain as the recovery claimed in the suit.

Relator moved the trial court to dismiss the cause on the ground of sovereign immunity. Respondent Judge overruled the motion expressing his opinion to be that § 207.020.1(1), RSMo Supp. 1982 constitutes a waiver of sovereign immunity as to all actions against the Division of Family Services. These proceedings in prohibition followed.

The gist of relator's contention is that the Division of Family Services as a subdivision of the executive branch of state government enjoys immunity from suit for damages in tort whether based on negligence or intentional wrong. If relator's position be sound, then English's petition does not and cannot lay before the trial court any cause upon which relief could be granted. A proper ground for prohibition is thus presented. State ex rel. City of Mansfield v. Crain, 301 S.W.2d 415 (Mo. App. 1957).

A decision by respondent Judge and the argument briefed here in support of that decision assume viable status to the doctrine of sovereign immunity at relevant time periods but contend as to the Division of Family Services that immunity has been waived by reason of the "sue and be sued" language of § 207.020.1(1), RSMo Supp. 1982. Case authority prior to September 12, 1977 was to the contrary. The following listed cases held that a statutory provision whereby a public body "may sue and be sued" does not authorize a suit against the public body for negligence. Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d 348 (Mo. 1964); Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499 (1941); Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063 (1941); Bush v. State Highway Commission of Missouri, 329 Mo. 843, 46 S.W.2d 854 (1932).

On September 12, 1977, the court decided Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977). That case represented a radical departure from prior law and adopted a judicial abrogation of the general doctrine of sovereign immunity. The opinion also expressly held a sue and be sued clause similar to § 207.020.1(1), (supra) , to be a waiver of any immunity from suit which might otherwise exist. The Jones case is foursquare in support of respondent's ruling in the present case. Jones, however, is no longer valid authority .

In an obvious response to the Jones decision, the legislature acted in 1978 to adopt H.B.1650, now codified at 537.600 et seq., RSMo 1978. That statutory enactment nullified the Jones decision and restored sovereign immunity to the status it occupied before September 12, 1977, subject to the exceptions set forth in that enactment. *fn2

In a recent opinion, Bartley v. Special School District of St. Louis County, No. 63901, decided April 26, 1983, the Missouri Supreme Court en banc held, "Under § 537.600, the Missouri legislature provided that sovereign tort immunity as it existed prior to the date of the Jones decision was to remain in effect * * *." From this we conclude that the line of precedential authority exemplified by Page v. Metropolitan St. Louis Sewer District, supra, controls, and a sue and be sued clause in the statute setting out the powers of the governmental agency cannot be construed to be a waiver of sovereign immunity. The trial Judge was therefore in error in ruling to the contrary as a basis to deny relator's motion for dismissal of the cause.

No contention is made that relator is not otherwise entitled to the immunity of the sovereign. Such immunity necessarily attaches because, (a) relator is a statutorily constituted division of the Missouri Department of Social Services ( § 660.010.7, RSMo Supp. 1982), (b) The Department of Social Services is a constitutionally mandated department of the executive branch (Article IV, § 37, Missouri Constitution) and (c) relator is therefore an agency or subdivision of the state. There being here no statutory waiver of that immunity apart from the asserted application of § 207.020.1(1), RSMo Supp. 1982, and that purported waiver having been judicially disavowed, it necessarily follows that relator is immune from suit for damages on the tort claim English asserts in the subject action.

In his brief, respondent appears to argue that this case is in some way unique. The contention is that the act of intercepting English's tax refund was an "intentional wrong" which distinguishes the case from an action for negligence. Respondent argues, without citation of any authority, that sovereign immunity extends only to negligence actions and not to all torts. This contention misses the mark in that it assumes sovereign immunity owes its existence to legislative or judicial pronouncements carving out of a condition of general liabilities those situations where immunity will prevail. To the contrary, it is the exceptions to immunity which exist only by express pronouncement.

It has repeatedly been held that sovereign immunity is simply the rule that the state cannot be sued in its own courts without its consent. State ex rel. Eagleton v. Hall, 389 S.W.2d 798 (Mo. banc 1965). Thus, it is the condition of waiver which finds expression in the statutes, immunity being the rule if there is no waiver. If ...

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