Flowers v. Board of Comr's of County of Vanderburgh, 19062

• Decision Date: 04 August 1959
• Docket Number: No. 19062,No. 2,19062,2
• Citation: 160 N.E.2d 217
• Parties: Peggy Jane FLOWERS, Appellant, v. BOARD OF COMMISSIONERS OF COUNTY OF VANDERBURGH, Vanderburgh County Park Board, Appellees. *
• Court: Indiana Appellate Court

Page 217

160 N.E.2d 217

Peggy Jane FLOWERS, Appellant, v. BOARD OF COMMISSIONERS OF COUNTY OF VANDERBURGH, Vanderburgh

County Park Board, Appellees. ^*

No. 19062.

Appellate Court of Indiana, Division No. 2.

Aug. 4, 1959.

Rehearing Denied Oct. 14, 1959.

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

Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, for appellees.

SMITH, Judge.

This action was brought by the appellant against the appellees to recover damages for personal injuries allegedly sustained by the appellant while skating at a rink located in a county-owned park, known as Burdette Park located in Vanderburgh County, Indiana.

The issue presented by this appeal arises upon a demurrer of the appellees addressed to appellant's reply to appellees' second paragraph of answer. Appellees' second paragraph of answer avers in substance that the appellees were, at all times involved, subdivisions or instrumentalities of the State of Indiana, created solely for the public benefit and purpose; and, therefore, were immune from tort liability and not liable for the injuries allegedly sustained by the appellant growing out of the alleged negligent operation of a skating rink located in a public county park owned by Vanderburgh County and operated by the appellees.

The reply of the appellant to appellees' second paragraph of answer, in substance, denied that the appellees were immune from tort liability; that, in the operation of the county park, the appellees were engaged in the exercise of a proprietary function; that the appellees waived the defense of governmental immunity by failing to demur to appellant's complaint; that appellees are estopped from raising the defense of governmental immunity because they obtained insurance pursuant to the provisions of § 39-1819, Burns' 1952 Repl.; that this action is being defended by an insurance carrier who is estopped from raising the defense of governmental immunity; and that such defense so raised in the second paragraph of answer was not authorized by the appellee.

Appellees' demurrer challenges the sufficiency of the reply of the appellant to avoid appellant's second paragraph of answer. The court sustained appellees' demurrer but failed to render a final judgment. Under date of December 12, 1957 a nunc pro tunc entry was made in the Warrick Circuit Court correcting the judgment entry; and under date of December 19, 1957, this Court granted appellant's motion for writ of certiorari correcting the transcript filed herein to include a recital of the corrected final judgment. From this judgment this appeal was taken.

The errors assigned for reversal are (1) the court erred in sustaining the demurrer of the appellees to the appellant's reply, and (2) the court erred in entering a judgment for the appellees.

The main question involved in this appeal is whether appellees are liable under the law to appellant for the injuries suffered in the manner alleged in the complaint.

The law appears to be well settled, as a general proposition, that a county is not liable any more than the State would be liable for the negligence of its agents or officers, in the absence of a statute creating liability. Board of Commissioners of Jasper County v. Allman, 1895, 142 Ind. 573, 42 N.E. 206, 39 L.R.A. 58; McDermott v. Board of Commissioners of County of Delaware, 1915, 60 Ind.App. 209, 212, 215, 110 N.E. 237; Hummer v. School City of Hartford City, 1953, 124 Ind.App. 30, 40, 42, 112 N.E.2d 891, 897; Article 4, Section 24 of the Constitution of the State of Indiana. The Hummer case involved an action for damages for personal injuries against the School City of Hartford City. The action was based on personal injuries allegedly sustained by the appellant while a spectator at a basketball game conducted by the school city. In that decision this Court said:

'* * * Furthermore, the general principle of governmental immunity from tort liability has been uniformly applied by our courts in a long line of cases affecting counties and townships. See cases cited in 4 Callahan's Indiana Digest, Counties, 221, and 14 Callahan's Indiana Digest, Townships, 175.'

It thus appears that the court in the Hummer case recognized that the rule of governmental immunity had been applied for a number of years by the courts of Indiana in cases affecting counties. In support of the Hummer decision, we find that the principle of governmental immunity, as applied to counties and their boards, has been followed by the Supreme Court of Indiana in the cases of Board of Commissioners of Jasper County v. Allman, supra; and McDermott v. Board of Commissioners of Delaware County, supra.

The appellant, however, urges that the defense of governmental immunity was improperly raised in that it was raised by appellant's second paragraph of answer whereas it should have been raised by demurrer to the complaint; and therefore, the appellees have waived the defense of governmental immunity. It seems apparent that the question presented with respect to governmental immunity is a question that has to do with the subject of the action. In substance, the defense of governmental immunity poses the question that there is no action which can be maintained against the appellees for tort liability, and the courts, therefore, do not have jurisdiction to entertain such an action. The defense of governmental immunity from tort liability, raised by the appellees in their second paragraph of answer, challenges the jurisdiction of the trial court over the subject of the action, and it is, therefore, our opinion that such defense is not waived by failure of the appellees to demur to the complaint. See, § 2-1011, Burns' 1946 Repl.; Bracht v. Conservation Commission, 1948, 118 Ind.App. 77, 76 N.E.2d 848; State ex rel. Indiana Dept. of Conservation v. Pulaski Circuit Court, 1952, 231 Ind. 245, 108 N.E.2d 185; Ford Motor Company v. Department of Treasury, 1944, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389; Kawananakoa v. Polyblank, 1907, 205 U.S. 349, 27 S.Ct. 526, 51 L.Ed. 834; Article 4, Section 24, Constitution of the State of Indiana. This Court cannot agree with appellant's contention that the defense of governmental immunity raises the objection that the complaint does not state facts sufficient to constitute a cause of action.

It is the further contention of the appellant that, since appellees obtained insurance, as provided in § 39-1819, Burns' 1952 Repl., the defense of governmental immunity cannot be raised due to the fact that an insurance carrier is defending this action and is precluded, by the provisions of this section of the Act, from raising such a defense. The language of this section is as follows:

'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 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. * * * 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 * * * 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. * * *'

Regardless of whether or not the allegations in appellant's reply to the effect that a policy of insurance was in effect insuring the officers of the appellees against loss or damage resulting from bodily injury to the appellant, it appears that this action was brought against the Board of Commissioners of the County of Vanderburgh and the Vanderburgh County Park Board. There is no personal liability sought as against the individual officers of the county for which the procurement of insurance may be justified under the statute above quoted. In the Hummer case, the court in substance said that this statute only presumes to authorize the purchase of insurance insuring officers, appointees or employees against loss or damage because of the liability imposed by law upon such officers. There appears to be no charge in the complaint, in the case at bar, charging any individual officer, appointee or employee of the appellees with negligence. This action was brought against the board of commissioners and the county park board as units and not as individuals; and, therefore, acting as such there is no liability. Appellant's contention seems adequately treated and disposed of by the following specific language found in the case of Hummer v. School City of Hartford City, supra:

'The above cases, although not controlling upon this court as to the construction to be placed upon our statute, are nevertheless persuasive that the common law rule of governmental immunity from tort liability is not waived by a municipal corporation merely as the result of the procurement by it of liability insurance under a statute authorizing the purchase of insurance insuring the officers, appointees, agents and employees of such municipal corporation. Such is the conclusion of this court.

'As a final contention, it is urged by appellant that, as alleged in the complaint, the immunity of appellee was waived by the fact that the insurance carrier 'is defending and will continue to defend this action on behalf of defendant (appellee).' It is true that the statute (§...