Conner v. Crawford County, No. 11061

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: BILLINGS
• Citation: 588 S.W.2d 532
• Decision Date: 09 October 1979
• Docket Number: No. 11061
• Parties: Lawrence F. CONNER, Plaintiff-Appellant, v. CRAWFORD COUNTY, Defendant-Respondent.

Page 532

588 S.W.2d 532 Lawrence F. CONNER, Plaintiff-Appellant,
v.
CRAWFORD COUNTY, Defendant-Respondent. No. 11061. Missouri Court of Appeals, Southern District, Division Three. Oct. 9, 1979.

Michael J. Pitzer, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for plaintiff-appellant.

Eugene B. Overhoff, Cuba, for defendant-respondent.

BILLINGS, Presiding Judge.

Plaintiff Lawrence F. Conner's petition for damages for defendant Crawford County's alleged negligent maintenance of a county road in 1975 was dismissed by the trial court because of defendant's sovereign immunity from tort liability. We affirm.

Plaintiff filed suit in 1975 and defendant filed its motion to dismiss, contending plaintiff's petition failed to state a cause of action because of the doctrine of sovereign immunity. Thereafter, and while the motion to dismiss was pending, our Supreme Court decided Jones v. State Highway Commission,

Page 533

557 S.W.2d 225 (Mo. banc 1977), and three companion cases ¹ and ruled the doctrine of sovereign immunity was abolished Prospectively, except as to the four cases decided that day, "as to all claims arising on or after August 15, 1978".

Defendant's motion to dismiss was ruled in early 1978 after plaintiff unsuccessfully argued that Jones should be applied retroactively and a failure to do so would deny him equal protection of the law and deny him due process under the Missouri Constitution and the United States Constitution. Plaintiff sought review of the trial court's ruling by our Supreme Court by taking his appeal there but that Court, by order transferred the appeal here "in which jurisdiction is vested."

Here, plaintiff urges this Court to apply Jones retroactively and says that a failure to do so will result in denying him his constitutional rights. He argues that the tortious conduct in Jones occurred in 1972 and by our Supreme Court's abrogation of sovereign immunity as to Jones and the three plaintiffs in the companion cases, the Court bestowed substantive rights on Jones and the other three plaintiffs and to withhold the same substantive right from him results in "a clear unequal application of the law and a denial of the right of due process and equal protection of the law as guaranteed by the Constitution."

We are bound by the decisions of our Supreme Court and it is our duty to follow and apply its decisions. The alleged negligence for which plaintiff sought recovery against Crawford County...