Berry v. Hinds County, 49135

• Decision Date: 30 March 1977
• Docket Number: No. 49135,49135
• Citation: 344 So.2d 146
• Parties: Judy BERRY and Donald A. Berry v. HINDS COUNTY, Mississippi.
• Court: Mississippi Supreme Court

Page 146

344 So.2d 146

Judy BERRY and Donald A. Berry v. HINDS COUNTY, Mississippi.

No. 49135.

Supreme Court of Mississippi.

March 30, 1977.

Young, Scanlon & Sessums, Pat H. Scanlon, Brad Sessums, Jackson, for appellants.

Watkins & Eager, Thomas H. Watkins, John M. Putnam, Jackson, for appellee.

Before PATTERSON, ROBERTSON and BROOM, JJ.

ROBERTSON, Justice:

This suit involves the doctrine of governmental immunity of a county from suit.

Suit was brought by Judy and Donald A. Berry against Hinds County, Mississippi, in the Circuit Court of the First Judicial District of Hinds County, to recover damages for personal injuries suffered by them when their automobile crashed into a collapsed bridge which spanned a large ditch on Longino Road in Hinds County. The accident happened about 6:30 p.m. on November 22, 1970, as the plaintiffs with thier children were riding in the family automobile.

A general demurrer was sustained to the declaration, and the plaintiffs declining to plead further, the judgment was made final and the declaration dismissed.

On appeal, the Berrys contend that the doctrine of governmental immunity should be abolished-that there is no valid reason for continuing this outmoded and antiquated doctrine. The appellants further contend that this doctrine of sovereign or governmental immunity was created by the courts and therefore should be abolished by them.

Appellants cite Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), as their most persuasive authority. In a very lengthy opinion, by a four-to-three vote, the Supreme Court of Pennsylvania reached this conclusion:

'We now hold that the doctrine of governmental immunity-long since devoid of any valid justification-is abolished in this Commonwealth.' 305 A.2d at 878.

This broad and all-encompassing ruling was made in spite of the fact that the suit was only brought against the Philadelphia Board of Public Education for injuries suffered by William Ayala, Jr. when his arm was caught in a shredding machine in the upholstery class of the Carrol School in the City of Philadelphia.

The appendix to the opinion Ayala lists eighteen states (including the District of Columbia) which have judicially abrogated the doctrine of governmental immunity. Pennsylvania, of course, should be added to the list, and, also, Alabama, which abrogated the doctrine as to counties (by a five-to-four vote) in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975). This makes a total of twenty states. Seven states are listed as having statutorily abrogated the doctrine.

One hundred years ago in the landmark case of Brabham v. Board of Supervisors of Hinds County, 54 Miss. 363 (1877), this Court stated its views on the doctrine of governmental immunity:

'The plaintiff in error sued the defendant in error to recover damages for the death of her husband, produced by the falling of a county bridge while he was crossing it with his wagon and team.

'If a county can be held liable for damages suffered in consequence of neglect to repair a county bridge in any case, it should be held so in this. At common law, a county could not be so held liable. No statute makes it liable. The 'demands,' 'accounts' and 'claims' contemplated in the statutes to be audited and allowed by boards of supervisors, and authorized to be sued on, if allowance is refused by the board, are manifestly such liabilities of the county as are provided for by some statute. A county can have no liability except as authorized, expressly or by necessary implication, by some statute. Counties are political divisions of the State, created for convenience. They are not corporation with the right to sue and be sued as an incident to their being, but are quasi corporations, invested by statute with certain powers, and subject to certain liabilities, and can neither sue nor be sued, except as authorized by statute. The right to maintain a suit like this against a county is not only outside of the contemplation of the statutes, but is opposed by every consideration of sound policy.' 54 Miss. at 364.

Over the years since Brabham, Mississippi has steadfastly adhered to this fundamental doctrine. Owens v. Jackson Municipal Separate School District, 264 So.2d 892 (Miss.1972); Lowndes v. County, District 5 v. Mississippi State Highway Commission, 220 So.2d 349 (Miss.1969); Board of Education of Forrest County v. Sigler, 208 So.2d 890 (Miss.1968); Board of Supervisors of Lee County v. Payne, 175 Miss. 12, 166 So. 332 (1936); Simpson County v. Kelly, 175 Miss. 596, 166 So. 532 (1936); Federal Land Bank v. Leflore County, Mississippi, 170 Miss. 1, 153 So. 882 (1934); McNulty v. Vickery, 126 Miss. 341, 88 So. 718 (1921); City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682 (1917).

In Monaco v. State of Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1933), the Supreme Court of the United States said:

'The 'entire judicial power granted by the Constitution' does not embrace authority to entertain such suits in the absence of the State's consent. (Citations omitted).

'Protected by the same fundamental principle, the States, in the absence of consent, are immune from suits brought against them by their own citizens or by federal corporations, although such suits are not within the explicit prohibitions of the Eleventh Amendment.' 292 U.S. at 329-30, 54 S.Ct. at 751, 78 L.Ed. at 1289.

In Board of Supervisors of Lee County v. Payne, 175 Miss. 12, 166 So. 332 (1936), this Court pointed out that counties and municipalities of the state are not on the same plane and that there are some fundamental differences between them. In Payne, we said:

'It is argued that counties and municipalities are upon the same plane, and should be held alike liable for a breach of a contract. The courts have universally made a distinction between counties and other municipal corporations, such as cities, towns, and villages. 'The principal ground upon which counties are not held liable for damages in actions for their neglect of public duty is that they are involuntary political divisions of the state, created for governmental purposes, and are organized without regard to the consent or dissent of the inhabitants. The theory upon which municipal corporations proper are held liable in such cases is that they are voluntary associations created and organized at the solicitation of, and with the free consent of, the inhabitants, under the laws of the state, and that the benefits accruing to he people by such incorporation compensate them for the liability. Another reason is that since the county is but a political subdivision of the state, a suit against the county is, in effect, a suit against the state, and that therefore an action will not lie without the consent of the legislature'.' 175 Miss. at 23, 166 So. at 335 (Emphasis added).

While it might be true that this doctrine was first enunciated by the English courts, still it came to this country as a part of the Common Law and early in the history of the United States was adopted as a sound and reasonable concept of the law.

The Legislature long ago began the process of chipping away at this doctrine of governmental immunity in appropriate areas. In 1914, the Legislature passed an act which provided:

'The board of supervisors of any county shall have the power, in their discretion, to allow damages sustained to stock and other property injured or destroyed while traveling along the public highways maintained by the county where such loss is caused by defects in a bridge, causeway or culvert in such highway. No such payment shall be allowed unless such defects in such bridge, causeway or culvert was the proximate cause of the injury and was not apparent or discoverable by the exercise of reasonable diligence, and no such payment shall be made unless such defect had existed for such a time that the failure to remedy or repair the same amounts to gross carelessness on the part of the county. Such payments shall be made from the county road and bridge funds, or from the road funds of the district where such accident occurred, as the circumstances render proper.

'A claim under section 19-13-51 for accidents occurring shall be made in writing, itemized and sworn to, and shall be filed within three months after such accident occurs, and shall remain on file with the clerk of the board of supervisors for sixty days before the first day of the term at which it comes up for hearing. Notice of its pendency shall be published in a newspaper published in the county at least one time before such claim comes up for hearing, and if there be no paper in such county, by posting notices at the courthouse and other public places.

'No payment shall be made hereunder except by a four-fifths recorded vote of all the members of the board of supervisors. Where the property...