Jones v. Knight

• Decision Date: 11 July 1979
• Docket Number: No. 51154,51154
• Citation: 373 So.2d 254
• Parties: Ernest JONES v. Kevin KNIGHT et al.
• Court: Mississippi Supreme Court

Page 254

373 So.2d 254

Ernest JONES v. Kevin KNIGHT et al.

No. 51154.

Supreme Court of Mississippi.

July 11, 1979.

Rehearing Denied Aug. 1, 1979.

Corr, Carlson & Fleming, George C. Carlson, Jr., Sardis, for appellant.

A. F. Summer, Atty. Gen. by Donald Clark, Jr., Sp. Asst. Atty. Gen., Jackson, for appellees.

En Banc:

BROOM, Justice, for the Court:

Sovereign immunity is the chief issue of this case appealed from the Circuit Court of the Second Judicial District of Yalobusha County, which court sustained the defendants' demurrer. Defendants (appellees) are Kevin Knight, individually and in his official capacity as a Mississippi Park Commission ranger, the Mississippi Park Commission, its director, and its members in their individual and official capacities.

According to Jones' declaration on June 20, 1976, the defendant, Kevin Knight, while performing his duties as ranger for the commission on state park grounds, unlawfully assaulted and battered the plaintiff, appellant Jones. Each defendant demurred. From the order of the lower court sustaining the demurrer, Jones appeals, urging that the doctrine of sovereign or governmental immunity is archaic and antiquated, and should now be abrogated by this Court.

The gist of the allegations contained in the declaration is that appellant Jones was assaulted, et cetera, when he went upon the Mississippi State Park grounds at Enid Reservoir, intending to locate and reserve a place for himself and others to have a picnic. Other allegations are: Knight, as agent, servant and employee of the park commission, directed verbal abuse and nasty language at Jones, and then suddenly and without any cause or provocation or warning, sprayed him with "mace", thereby injuring him. Paragraph 7 of the declaration charges:

The aforesaid willful, malicious, intentional, unprovoked and unlawful assault and battery upon the person of Plaintiff proximately caused or contributed to the injuries and damages suffered by Plaintiff; therefore, Plaintiff now charges Defendant, Kevin Knight, individually, and in his official capacity as a Mississippi Park Commission Ranger, with the following specific unlawful acts or omissions:

(a) Committing a willful, malicious, intentional, unprovoked and unlawful assault and battery upon the person of Plaintiff;

(b) Spraying, unlawfully and unnecessarily, a riot control substance known as "mace", in the face of Plaintiff, at point blank range;

(c) Leaving Plaintiff completely incapacitated after committing the actions described in (a) and (b) thereby causing Plaintiff to suffer further damages and injuries.

Also, Paragraph 10 of the declaration states, in part, as follows:

Plaintiff now charges that the aforesaid willful, malicious, intentional, unprovoked and unlawful assault and battery upon his person, by Defendant, Kevin Knight, individually and in his official capacity as a Mississippi Park Commission Ranger . . . proximately caused or contributed . . . .

The declaration charged that the other defendants (park officials) employed the ranger-defendant Knight, knowing him to be unqualified, of a violent nature, and without proper training, and it otherwise sought to hold them liable for the acts of the ranger, defendant Knight.

It is undisputed that the Mississippi Park Commission is an agency of the State of Mississippi pursuant to Mississippi Code Annotated § 55-3-31 (1972), et sequitur, and that the commission by statute had vested in it control of the state parks within the state. No statute has been found or cited to the effect that the sovereign immunity of the commission was waived in any manner. In his brief, appellant Jones concedes "that in past decisions of this Court it has been stated that an arm or agency of the state could not be sued except by express statutory or constitutional authority. Smith v. Doehler Metal Furn. Co., 195 Miss. 538, 15 So.2d 421 (1943)." Appellant recognizes Reed v. Evans, 342 So.2d 290 (Miss.1976), and Berry v. Hinds County, 344 So.2d 146 (Miss.1977), both of which recent cases upheld the doctrine of governmental immunity. As to all of the defendants except Kevin Knight, the thrust of appellant Jones' argument is that this Court now should abrogate the doctrine, and grant him a trial on the merits as to all of the defendants who were sued because they were members of, or were either agents or director of, the park commission. The lower court obviously thought that the doctrine of sovereign immunity was applicable and, on that basis, sustained the demurrer as to all defendants. We must affirm now (except as to Kevin Knight, the park ranger) unless this Court decides to abrogate the doctrines of immunity of public officials and sovereign immunity and overrule our long line of cases up to and including the 1977 case of Berry v. Hinds County, supra. Our decision in Rev. W. L. Jagnandan v. Mississippi State University, 373 So.2d 252 (Miss.1979), also upheld sovereign immunity.

Much can be said in favor of abrogating the doctrine of sovereign immunity, but we consider the subject one which should be addressed by the legislature. Abrogation may be accomplished by decision of this Court, but we are not in position to logically decide from what source state funds would be supplied in satisfying a judgment (in the event such be awarded the plaintiff against the Mississippi Park Commission). State agencies are operated within budgetary limits, and legislation is prerequisite to the inherent budgetary problems which a judgment against a state agency would create. We think that before sovereign immunity is struck down, legislative action should be taken to designate funds for payment of judgments. As Justice Robertson wrote in Berry v. Hinds County, supra:

Long ago, we held, in State Highway Commission v. Gully, 167 Miss. 631, 145 So. 351 (1933) "A general statutory grant of authority to sue a governmental subdivision or agency Does not create any liability, and suit may be maintained thereunder Only for such liability as is authorized by statute, expressly or by necessary implication. City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Brabham v. Board of Supervisors of Hinds County, 54 Miss. 363, 28 Am.Rep. 352. At the time these cases were decided, the statute provided that any county might sue or be sued by its name, section 3484, Rev.Code 1871, section 309, Code 1906; and it was expressly held in each of these cases that there can be no liability against the state or its political subdivisions or agencies unless it is expressly or impliedly created by statute." 167 Miss. at 647, 145 So. at 354. (Emphasis added).

Of course, the courts, as well as the legislature, have the undoubted right to abrogate the doctrine of governmental immunity. We are of the opinion, however, that the legislature is in a better position to limit and restrict claims that can be asserted and to provide the ways and means for the paying of such claims (either by taxation or appropriation), if it should see fit to do so. Therefore, we decline to abolish the doctrine of governmental immunity at this time by judicial decision.

Abrogation of sovereign immunity strongly appeals to the sentiments of us all, but, if it were done as sought by the appellant, it would leave every state agency, institution, or branch of government vulnerable to tort suits. We think abrogation, if ever accomplished, should be accompanied by legislation alluded to by Justice Robertson in Berry v. Hinds County, supra.

The posture of the defendant-appellee, Kevin Knight, the individual defendant whom appellant Jones charged with assaulting and battering him, differs from the other defendants' posture. Scrutiny of the declaration, insofar as defendant-appellee Kevin Knight is concerned, leads us to conclude that from the declaration it cannot be said with confidence that any immunity doctrine extends to him. Accordingly, appellant Jones should be given an opportunity to put on proof concerning the actions of the appellee, Ranger Knight, on the occasion in question. Then, upon the proof, the lower court should decide whether or not Knight is shielded by the immunity of public officials doctrine, or whether a case is made out sufficient to go to the jury on the issue of the alleged liability of Kevin Knight, individually. Davis v. Little, 362 So.2d 642 (Miss.1978).

Accordingly, we conclude that the lower court properly sustained the demurrers of all of the defendants-appellees except as to Kevin Knight. As to him, all members of this Court agree that this cause must be reversed and remanded for presentation of proof and trial on the merits. We hold that the doctrine of sovereign immunity applies so as to exonerate the park commission, and that the demurrer was rightly sustained as to all parties defendant except Knight.

AFFIRMED AS TO ALL PARTIES EXCEPT KEVIN KNIGHT;

REVERSED AND REMANDED AS TO KNIGHT.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER and LEE, JJ., concur.

PATTERSON, C. J., and BOWLING, J., dissent.

COFER, J., took no part.

BOWLING, Justice, dissenting:

I dissent from the majority opinion holding that this Court should not abolish the out-of-date principle of governmental immunity. In my humble opinion, it is time for our State to follow the lead of a majority of other states on this question. I certainly do not believe in change just for the sake of changing something. I am not a crusader for change unless it is a change for improvement. I believe, however, that all such questions should be analyzed carefully and that we should not be the last so to do.

For those non-legal persons who might read this governmental immunity is a principle under which state agencies and state political subdivisions are not held responsible for injuries caused by them to others the same as an ordinary person, association, corporation or other private entity.

I hasten to explain and so that it may be fully understood that this does not mean...