Coleman v. McNary

• Decision Date: 08 March 1977
• Docket Number: Nos. 38020 and 38391,s. 38020 and 38391
• Citation: 549 S.W.2d 568
• Parties: Emmett L. COLEMAN, Plaintiff-Appellant, v. Gene McNARY et al., Defendants-Respondents. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 568

549 S.W.2d 568

Emmett L. COLEMAN, Plaintiff-Appellant, v. Gene McNARY et al., Defendants-Respondents.

Nos. 38020 and 38391.

Missouri Court of Appeals, St. Louis District, Division Two.

March 8, 1977.

Rehearing Denied April 15, 1977.

Whitfield, Montgomery & Walton, Harold L. Whitfield, St. Louis, for plaintiff-appellant.

Donald J. Weyerich, Clayton, for defendants-respondents.

McMILLIAN, Presiding Judge.

Plaintiff Emmett L. Coleman appeals from an order entered by the circuit court of St. Louis County, Missouri, dismissing his suit against defendants, St. Louis County, Gene McNary, county supervisors, Jessee Horstman, Joe Cole, and Dorothy Wallace, agents and employees of St. Louis County. Plaintiff alleged the defendants tortiously interfered with a contractual agreement entered into by him with approximately twenty-five home buyers (Count I), and slandered and disparaged him (Count II).

The trial court sustained the defendants' motion to dismiss as to all defendants in Count I, and as to all defendants except Dorothy Wallace in Count II. On December 8, 1976, in response to a motion by defendants to dismiss plaintiff's appeal, we denied the motion as to Count I, and granted it as to Count II. While all the issues and parties had been disposed of in Count I, there still remained the charge against defendant Wallace in Count II. § 512.020 RSMO 1969; Cooper v. Barr, 413 S.W.2d 219, 221 (Mo.1967).

On this appeal the sole issue is whether the trial court erred in dismissing Count I on the grounds of sovereign immunity. We hold that it did not and affirm the judgment.

The defendants argue that the trial court did not err in granting the motion to dismiss because they acted in their representative capacities as agents of the county and, as such, were protected against all claims by sovereign immunity.

The plaintiff argues that St. Louis County is not protected by sovereign immunity in the present case because it was engaged in a proprietary rather than a governmental function. The fallacy of plaintiff's argument is that this distinction between a proprietary and governmental function determines whether a municipality, not a county is protected by sovereign immunity, with one exception, in all of the cases cited by the plaintiff to support his argument, the defendant was a city or town. In State v. Kopp, 330 S.W.2d 882 (Mo.1960), where the defendants included a city and the county zoning board, the court again reiterated that the distinction between proprietary and governmental functions for sovereign immunity purposes pertained to municipalities only. Id. at 889-90.

In addition, the Missouri courts have consistently distinguished between the two governmental entities and have been willing to abrogate the sovereign immunity doctrine only as to municipalities engaged in proprietary functions:

". . . (I)t is important to bear in mind the distinction between municipal corporations (in the strict and proper sense), such as cities, towns and villages, and quasi corporations, such as counties and townships. Municipal corporations exercise both governmental and proprietary (sometimes called corporate) functions. Their liability or nonliability in tort depends on the character of the particular function involved as being governmental on the one hand, or proprietary on the other." Cullor v. Jackson Township, Putnam County, 249 S.W.2d 393, 395 (Mo.1952).

In Wood v. County of Jackson, 463 S.W.2d 834 (Mo.1971), the court again pointed to the Missouri policy of treating counties and municipalities differently with regard to sovereign immunity and rejected an argument that such a policy was a denial of equal protection or due process.

In summary, it seems well established that while a municipality is protected only against claims which arise from the exercise of its governmental function, a county is protected against all claims by sovereign immunity. Because the defendants here are St. Louis County and its agents, they are protected by sovereign immunity.

The sovereign immunity of a county extends to its agents when they are acting in their representative capacities, Lloyd v. Garren, 366 S.W.2d 341 (Mo.1963). Here, the defendants Horstman, Cole, and Wallace were acting within their capacities as executives in the St. Louis Office of Community Development and the Meacham Park Project when the alleged torts occurred. Also, the defendants were sued in their representative capacities only, therefore, the sovereign immunity doctrine extends to them.

Although the doctrine of sovereign immunity has been heavily criticized by the Missouri Courts, it would not be appropriate for this court to modify the doctrine. The Missouri Supreme Court has stressed repeatedly that this is a task the legislature rather than the courts should perform, O'Dell v. Sch. Dist. of Independence, 521...