City of Terre Haute v. Deckard

Decision Date17 April 1961
Docket NumberNo. 1,No. 19207,19207,1
PartiesCITY OF TERRE HAUTE, Indiana, Appellant, v. Audie Fay DECKARD, Appellee. *
CourtIndiana Appellate Court

Frank P. Crawford, Terre Haute, for appellant.

Robert H. Duffy, Terre Haute, James P. Savage, Clinton, for appellee.

RYAN, Judge.

This was an action instituted by the appellee against the City of Terre Haute, Indiana, to recover damages for personal injury and property damage which were allegedly sustained by the appellee when a motor vehicle which appellee was operating was struck from behind by a police car owned by the City of Terre Haute and which was being operated by a police officer employed by the City of Terre Haute. A fire truck had passed by the scene of this particular accident a few minutes before the accident occurred, and evidently the police car was at the time of the accident on its way to such fire. Trial was had by jury, which resulted in a verdict and judgment rendered thereon in favor of the appellee.

The appellant urges that the judgment should be reversed for three reasons. The first of these urged by the appellant is the assertion that the city had purchased a policy of insurance under the authority of § 39-1819, Burns' Ind.Stat.Ann., 1952 Replacement, and that the verdict of the jury was in excess of such policy limitations. This statute reads as follows '39-1819. State or municipal corporations--Liability and property damage insurance--Coverage--Limitations--Contracts for hire with private owners--Provisions in policies.--The state, or any municipal corporation thereof, is hereby empowered to purchase policies of insurance insuring the officers, appointees, agents and employees of the state or municipal corporation against loss or damage because of the liability imposed by law upon such officers, appointees, agents and employees for loss or damage resulting from bodily injury to, or death of, or property damage sustained by, any person or persons, caused by accident and arising out of the ownership, maintenance, hire, or use of any motor vehicle owned by the state or such municipal corporation, and any real or other personal property whatsoever, owned, hired, or used by the state or such municipal corporation, in the business of the state or such municipal corporation, and to pay the premiums thereon out of public funds. In no event shall the state or any municipal corporation thereof, be liable, in any case, in any amount in excess of the maximum amount of valid insurance in full force and effect and covering the particular motor vehicle or particular real or personal property involved in the accident causing such loss or damage: Provided, That wherever the state or any municipal corporation thereof enters into a contract for the hire or use of any automobile owned and operated by a private individual, such insurance, as set out above, shall be purchased by the owner of such automobile and funds for the payment thereof may be included in the contract for hire. No such policy of insurance shall be purchased by or issued or delivered to the state or to any municipal corporation thereof by any insurance carrier unless such carrier is duly authorized to transact such insurance business within the state of Indiana, and the policy so issued shall conform to the requirements of chapter 162, article IX, sec. 177 of the Acts of 1935 [§ 39-4309], nor unless there shall be contained within such policy a provision that if there arises or may arise a claim, suit or cause of action in relation thereto, such insurance carrier will not set up, as a defense, the immunity of the state or of such municipal corporation, but such insurance carrier shall be permitted to plead and interpose every other defense that would be available to the insured if such insured were a natural person or a private corporation. In no event shall the insurance carrier be liable, in any case, in any amount in excess of the maximum amount named in the policy of insurance.'

It should be noted that this statute empowers a municipal corporation not to purchase insurance for its own liability but merely to purchase policies of insurance insuring 'the officers, appointees, agents and employees of the state or municipal corporation'. Further, the statute seems to present a paradoxical situation since the second sentence states as follows:

'In no event shall the state or any municipal corporation thereof, be liable, in any case, in any amount in excess of the maximum amount of valid insurance in full force and effect * * *.'

The general rule is that a municipality is not liable for injuries resulting from the performance of a governmental function but that it may be liable for those arising from that of a proprietary function. In cases involving the use of a municipally owned automobile the question generally resolves itself largely upon the nature of the act being performed and the character and nature of the branch or department of the city to which the automobile has been assigned. In the case of fire and police departments the great weight of authority assigns such functions to the governmental side of the question. See Annotation 110 A.L.R. 1117.

This court in the case of Smith v. City of Gary, 1931, 93 Ind.App. 675, 178 N.E. 572, held that police officers, not being the servants or agents of a city, the municipality can not be held liable for the negligence of a police officer engaged in the public duty of protecting property. See also 18 McQuillan Municipal Corporations, § 13.81 (3d ed. 1950).

The statute upon which the appellant relies, and which we have quoted above, has previously been construed once before this court in the case of Hummer v. School City of Hartford City, 1953, 124 Ind.App. 30, 112 N.E.2d 891, 899, which involved an action for damages for personal injuries sustained by the appellant while a spectator at a basketball game which was conducted by the appellee. In holding that the purchase of insurance pursuant to such statutory authority did not require the conclusion that the municipal corporation's immunity from liability had been abrogated, so long as there was no express waiver of immunity, Judge Achor, speaking for the court, stated:

'* * * The statute neither modifies nor expressly provides a remedy which waives or circumvents the immunity of the municipal corporation which insures itself against liability.'

Judge Achor then went on to state that any waiver of governmental immunity by a school city must be read into the statute if at all by implication.

In refuting such...

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1 cases
  • City of Terre Haute v. Deckard
    • United States
    • Indiana Supreme Court
    • June 28, 1962
    ...the Appellate Court under Burns' § 4-215 (1946 Replacement), Acts 1933, ch. 151, § 1, p. 800, the Appellate Court's opinion appearing in 175 N.E.2d 141. Appellee brought this action against appellant City of Terre Haute to recover damages for personal injury and property damage allegedly su......

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