Flowers v. Board of Com'rs of Vanderburgh County, 29976

• Decision Date: 06 July 1960
• Docket Number: No. 29976,29976
• Citation: 168 N.E.2d 224,240 Ind. 668
• Parties: Peggy Jane FLOWERS, Appellant, v. BOARD OF COMMISSIONERS OF THE COUNTY OF VANDERBURGH, Vanderburgh County Park Board, Appellees.
• Court: Indiana Supreme Court

Page 224

168 N.E.2d 224

240 Ind. 668

Peggy Jane FLOWERS, Appellant, v. BOARD OF COMMISSIONERS OF THE COUNTY OF VANDERBURGH, Vanderburgh County Park Board, Appellees.

No. 29976.

Supreme Court of Indiana.

July 6, 1960.

Sydney L. Berger, Evansville, Ford Gale Lacey, Boonville, for appellant.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellees.

LANDIS, Judge.

This cause reaches us on transfer from the Appellate Court under Burns' § 4-215, ¹ the Appellate Court's opinion appearing in 160 N.E.2d 217.

Appellant brought suit against appellees, Board of Commissioners of the County of Vanderburgh and the Vanderburgh County Park Board, to recover damages for personal injuries sustained while skating at a rink in a county owned park and allegedly caused by the negligence of appellees in operating for profit said skating rink, to which the general public was admitted only after payment of an admission fee.

Appellees' answer set up that appellees were subdivisions or instrumentalities of the state and therefore were immune from tort liability for negligence. Appellant filed reply denying appellees' governmental immunity from tort liability and alleging that the operation of said roller skating rink was not a governmental function but was an undertaking for profit and that appellees charged an admission fee. Appellant further alleged appellees were estopped from raising the defense of governmental immunity because they had obtained insurance pursuant to Burns' § 39-1819 (1952 Replacement), ² which prohibits said insurance carrier from writing such a policy of insurance unless it waives setting up the defense of governmental immunity. Appellees demurred to the reply contending their sovereign immunity extended to 'proprietary profit-making functions' as well as to governmental functions. The trial court sustained appellees' demurrer and this appeal is from the judgment thereon.

Appellant contends on this appeal (1) that appellees are not immune from tort liability for the negligent operation of a skating rink for profit, the same being a proprietary function, and (2) that appellees are estopped from raising the defense of governmental immunity under Burns' § 39-1819, supra.

The statutes of this state provide that county commissioners '* * * shall be considered a body corporate and politic by the name and style of 'The Board of Commissioners of the County of _____'; and as such, and in such name, may prosecute and defend suits, and have all other duties, rights and powers incident to corporations, not inconsistent with the provisions of this act.' Burns' § 26-606. ³

With reference to (1) it is the wellsettled general rule throughout the United States that while a county is not liable, in the absence of statute for torts committed by it in the exercise of its governmental functions, it is nevertheless liable for torts committed in a proprietary capacity. See: 20 C.J.S., Counties, § 215.

We have not been cited any decisions of this state which hold to the contrary although there are of course many cases holding that a county is not liable in tort for its acts in performing a governmental function. Board of Commissioners of Jasper County v. Allman, Adm'r, 1895, 142 Ind. 573, 42 N.E. 206, 39 L.R.A. 58; Summers v. Board of Commissioners of Daviess County, 1885, 103 Ind. 262, 2 N.E. 725, 53 Am.Rep. 512; Board of Comrs. of Greene County v. Usrey, 1943, 221 Ind. 197, 46 N.E.2d 823. As to civil cities, there is numerous authority in this state distinguishing governmental functions from proprietary functions and holding civil cities liable for torts occurring in the performance of proprietary functions. See: City of Logansport v. Public Service Comm., 1931, 202 Ind. 523, 177 N.E. 249, 76 A.L.R. 838; Sherfey v. City of Brazil, 1938, 213 Ind. 493, 13 N.E.2d 568.

The foregoing statute provides for the filing of suits by and against counties and we see no valid reason why the well-settled rule holding civil cities liable for damages for torts occurring in the performance of their proprietary functions should not be applied to counties.

It should also be noted that this Court in the case of Haag v. The Board of Comm'rs of Vanderburgh Co., 1878, 60 Ind. 511, 28 Am.Rep. 654, upheld the right of an injured person to obtain relief in an action for abatement of a nuisance. It has been argued that as a nuisance is a tort, ⁴ this case establishes the liability of the county for torts in the exercise of a proprietary function.

In the case before us the facts alleged in appellant's reply are deemed admitted for the purposes of appellees' demurrer, ⁵ and in the memorandum to such demurrer appellees have contended their sovereign immunity applied to proprietary profit-making functions as well as to governmental functions.

Under such a state of facts it is our view that the doctrine of sovereign immunity is not applicable as this is obviously a case of a county in the exercise of a proprietary or corporate function.

We shall now consider appellant's contention (2) that appellee is estopped to raise the question of sovereign immunity in view of Burns' § 39-1819, supra, which provides:

'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...