Klepinger v. Board of Com'rs of Miami County, s. 767--A--23

Decision Date26 July 1968
Docket NumberNos. 767--A--23,No. 2,767--A--24,s. 767--A--23,2
Citation143 Ind.App. 155,239 N.E.2d 160,15 Ind.Dec. 92
Parties, 143 Ind.App. 178 Shirley KLEPINGER, Appellant, v. The BOARD OF COMMISSIONERS OF the COUNTY OF MIAMI: Lewis Wilson, Elmer Miller, Earl Glassburn, Commissioners, Appellee. Wayne KLEPINGER, Appellant, v. The BOARD OF COMMISSIONERS OF the COUNTY OF MIAMI: Lewis Wilson, Elmer Miller, Earl Glassburn, Commissioners, Appellee
CourtIndiana Appellate Court

Bayliff, Harrigan & Cord, by J. Conrad Maugans, Kokomo, for appellants.

Russell J. Wildman, George R. Landgrave, Peru, for appellee.

SMITH, Justice.

This appeal involves an action brought by the appellant, Shirley Klepinger, against the appellee, The Board of Commissioners of the County of Miami, to recover damages for personal injuries sustained by her when the motor vehicle which she was operating struck an open trench left across a bridge floor that was being repaired by the appellee, The Board of County Commissioners of Miami County.

The appellant alleged in her complaint that the appellee was negligent in leaving a trench open across the entire width of said bridge throughout the day of April 10, 1966, when the appellee knew, or should have known, that persons in motor vehicles using said highway and bridge could be injured and their motor vehicles damaged when striking said trench; and, in failing to warn approaching motorists that there was an open trench across the bridge.

The appellee filed an answer in affirmation and denial pursuant to Rule 1--3 of the Rules of the Supreme Court of Indiana; and also filed a motion for summary judgment based upon the theory of governmental immunity, the county being uninsured.

Upon the issues thus joined, this cause was submitted to the court for trial. The trial court sustained the appellee's motion for summary judgment and a judgment was rendered accordingly.

Thereafter, the appellant filed a timely motion for a new trial, which motion is as follows:

'1. The decision of the court is contrary to law.

'2. The decision of the court is not sustained by sufficient evidence.

'3. The court erred in sustaining defendants' Motion for summary judgment.

'4. The court erred in its conclusion of law 'that the defendant is entitled to a judgment as a matter of law."

In support of the motion for a new trial the appellant filed a memorandum which reads as follows:

'1. The decision of the court is contrary to law in the following particulars:

'a. The court's decision was founded on the erroneous findings that 'the defendant is entitled to a judgment as a matter of law.'

'b. Sovereign immunity is not available as a defense to a county in Indiana when the county's liability is based on negligent acts and omissions of officers, employees or agents committed in performing proprietary or ministerial functions. Flowers v. Board of Commissioners of the County of Vanderburgh, et al (1960), 240 Ind. 668, 168 N.E.2d 224 'c. Counties are liable for damages on the same basis as civil cities for torts occurring in the performance of proprietary functions and under the facts in this case, had the defendant been a civil city, the law is clear that the defendant would have been liable in damages. Flowers v. Board of Commissioners of the County of Vanderburgh, et al, supra; The City of Goshen v. Myers (1889), 119 Ind. 196, 21 N.E. 657.

'2. The decision of the court is not sustained by sufficient evidence in the the following particulars:

'a. The affidavits submitted by the defendants in support of their motion for summary judgment did not comply with the requirements of Burns Indiana Statute(s) Annotated § 2--2524(e) in that they did not set forth facts as would be admissible in evidence and did not set forth any facts in regard to the allegations set forth in defendants' motion for summary judgment.'

Appellant's motion for a new trial was overruled, and from this ruling this appeal followed.

Appellant's assignment of errors is as follows:

'The appellant avers that there is manifest error in the judgment and proceedings in this cause, which is prejudicial to appellant, in this:

'1. The Court erred in overruling appellant's motion for a new trial.

'2. The decision of the Court is contrary to law.

'3. The decision of the Court is not sustained by sufficient evidence.

'4. The Court erred in sustaining defendants' motion for summary judgment.

'5. The Court erred in its conclusion of law 'that the defendant is entitled to a judgment as a matter of law."

The appellant maintains in her assignment of error No. 1, that the court erred in overruling appellant's motion for a new trial, and urges the following three propositions of error in said assignment:

1. The decision of the court is contrary to law.

2. The court erred in sustaining defendant-appellee's motion for summary judgment.

3. The court erred in its conclusion of law that the defendant-appellee is entitled to a judgment as a matter of law.

Inasmuch as substantially the same question is raised in this case by all three propositions of error, we are grouping and discussing them together in this opinion.

The essential question of law is whether appellee county is immune from suit, assuming that the facts pleaded in the appellant's complaint are true.

The appellant objects to the decision of the court as being contrary to law because it is based on a faulty premise to the effect that an uninsured county enjoys governmental immunity from suit for damages for torts committed in the performance of all functions, including proprietary and corporate functions. Because this is a false premise according to the contention of the appellant insofar as proprietary functions are concerned, and because the appellee was engaged in a proprietary function when negligently causing damage to appellant, the court erred in sustaining appellee's motion for summary judgment; and erred in its conclusion of law that the appellee was entitled to a judgment as a matter of law.

The appellee filed its motion for summary judgment under the provisions of Burns' Indiana Statutes Annotated § 2--2524, which reads in part as follows:

'(b) * * * A party against whom a complaint, counter-claim or cross-complaint is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

'(c) * * * The motion shall be served at least ten (ten) days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (Emphasis supplied.) * * *'

It is the contention of the appellant that the appellee's motion for summary judgment did not contradict nor deny any of the allegations of appellant's complaint. It alleged:

'1. Plaintiff's cause of action is against a body of the Government possessing sovereign power.

'2. Plaintiff's cause of action is in tort, predicated on negligence of the defendant as a body of the Government.

'3. The defendant had no insurance coverage, insuring defendant against a risk of the kind and character described in plaintiff's complaint.

'4. Plaintiff's cause of action seeks damages for negligence of the defendant's officers, agents and employees, and the defendant being a sovereign power, and not being insured against a risk such as is alleged in plaintiff's complaint, is not liable in damages for the negligence of its officers, agents, and employees.'

It is the further contention of the appellant that the facts alleged in appellant's complaint are required to be accepted as true for the purposes of this appeal. See Pittsburgh Hotels Ass'n v. Urban Redevelopment Authority of Pittsburgh (D.C.Pa.1962), 202 F.Supp. 486 (aff'd 3 Cir., 309 F.2d 186) (Interpreting F.R.Civ.P. 56 which is similar to Indiana's Summary Judgment Statute). That there is no 'genuine issue as to any material fact', and the sole dispute is a question of law.

The appellant urges that under Burns' Indiana Statutes Annotated § 26--606 it has been held by our Supreme Court that counties in Indiana are liable for damages for torts occurring in the performance of proprietary functions. Flowers v. Board of Commissioners of the County of Vanderburgh et al., supra. The Flowers case involved an action brought by the appellant against appellees to recover damages for personal injuries sustained by the appellant while skating at a rink operated in a county-owned park where skating was permitted upon the payment of an admission fee. The language that the court used in the Flowers case which is applicable to this appeal, is as follows:

'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. (Emphasis supplied.)

'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.

'With reference to (1) it is the well settled general rule throughout the United States that while a county is not liable, in the...

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