Maffei v. Incorporated Town of Kemmerer

• Citation: 338 P.2d 808,80 Wyo. 33
• Decision Date: 21 April 1959
• Docket Number: No. 2843,2843
• Parties: Lela Irene MAFFEI and Lela Irene Maffei, Guardian Ad-Litem of Charles Albert Maffei, Carol Irene Maffei and John Jay Maffei, Minors, Appellants (Plaintiffs below), v. INCORPORATED TOWN OF KEMMERER, Wyoming, Appellee (Defendant below).
• Court: United States State Supreme Court of Wyoming

Page 808

338 P.2d 808

80 Wyo. 33

Lela Irene MAFFEI and Lela Irene Maffei, Guardian Ad-Litem of Charles Albert Maffei, Carol Irene Maffei and John Jay Maffei, Minors, Appellants (Plaintiffs below), v. INCORPORATED TOWN OF KEMMERER, Wyoming, Appellee (Defendant below).

No. 2843.

Supreme Court of Wyoming.

April 21, 1959.

Lee S. Nebeker, Green River, and Richard L. Bird, Jr., and C. J. Frost, Salt Lake City, Utah, for appellants.

Edgar J. Herschler, Kemmerer, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Plaintiffs alleged the town brought about the death of their husband and father through negligence of its police officer in directing deceased to assist him in the pursuit of a felon without warning deceased of the dangerous nature of the pursuit and that defendant's procuring liability insurance which required the insurer not to deny liability on account of municipal immunity except upon written request of the town (which was not made) waived the town's municipal immunity. When defendant's demurrer was sustained plaintiffs elected to stand upon their pleading. The case was dismissed and plaintiffs appeal.

By claiming there was a waiver of municipal immunity, the plaintiffs tacitly conceded the town did possess an immunity. Notwithstanding, we will discuss that matter at some length. In addition appellants ask us to decide: (1) If the insurance company was estopped to plead immunity; (2) if plaintiffs have an action as third-party beneficiaries under the insurance contract; (3) if the immunity question could be raised by demurrer.

The appellee says a cause of action was not stated because: (1) There was a failure to plead whether the town was acting in governmental or proprietary capacity; (2) in the absence of statute, the town is immune from liability when exercising its governmental function; and (3) the town cannot waive its immunity by procurement of insurance.

As many of these various contentions will be discussed as are deemed best suited to disposition of the case.

Although our decision in Savage v. Town of Lander, 77 Wyo. 157, 164, 165, 309 P.2d 152, 153, 154, indicated that good pleading requires alleging the capacity in which the town acted, the facts set forth in the instant case sufficiently disclosed the town had acted in a purely governmental capacity and appellants do not assert otherwise. This being so, the further statement in the Savage case has bearing:

'Any analysis of an action for personal injury against a town must be considered in the true legal perspective governing the tort liability of a municipality--as distinguished from a private corporation or an individual. The law on this subject is too well settled to admit of serious controversy. A municipal corporation has a dual nature or capacity, one public, and the other private, and exercises twofold functions and duties. The rule is generally recognized that in the absence of statutory provision there can be no recovery against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of a function which is essentially governmental in character. * * *' This last sentence, which merely voiced a well-recognized rule of law, undoubtedly committed us to acceptance of the doctrine of municipal immunity, absent a statutory provision to the contrary. Now, this appeal directly challenges us to renounce this generally recognized doctrine of municipal immunity and to judicially declare that what is said to be a modern and better public policy is the law of this State. This we may not do.

In the first place, appellants cite us no authorities directly in point to support their contention. The only case in point we have discovered to support the theory that a court is privileged to repudiate the general rule giving immunity to towns from liability for tort is Hargrove v. Town of Cocoa Beach, 1957, Fla., 96 So.2d 130, 60 A.L.R.2d 1193. There it was claimed that any recession from the court's prior decisions holding municipal corporations immune from liability for torts of police officers and making the towns liable for such torts under the doctrine of respondeat superior must come from legislative rather than from judicial action. The court was of divided opinion but the majority in direct and forceful language rejected the thought. The majority decision, however, would be much more persuasive were it not that we believe the learned court proceeded upon an unfirm premise. The opinion writer at page 132 in 96 So.2d and at page 1196 in 60 A.L.R.2d said:

'Tracing the rule [doctrine of municipal immunity] to its ultimate progenitor we are led to the English case of Russel v. Men of Devon, 2 T.R. 667, 100 Eng.Rep.R. 359 (1788). * * *'

The court then stated:

'Assuming that the immunity rule had its inception in the Men of Devon case, and most legal historians agree that it did, it should be noted that this case was decided in 1788, some twelve years after our Declaration of Independence. Be that as it may, our own feeling is that the courts should be alive to the demands of justice. We can see no necessity for insisting on legislative action in a matter which the courts themselves originated.' (Emphasis supplied.) Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 132, 60 A.L.R.2d 1193, 1196.

We interpret these expressions as meaning the Florida court considered the doctrine of municipal immunity originated by virtue of pronouncement made in Russell v. The Men of Devon, 2 T.R. 667, 100 Eng.Rep.R. 359. We believe that assumption is not justified because of what was said in the opinion in the Devon case, which was an action in which an individual sought recovery against the inhabitants of a county for injuries sustained because of alleged negligence of the county. In the major opinion at 2 T.R. 673, 100 Eng.Rep.R. 362 it was said:

'* * * there is no law or reason for supporting the action; and there is a precedent against it in Brooke: though even without that authority I should be of opinion that this action cannot be maintained.' (Emphasis supplied.)

To the same effect the concurring opinion said at 2 T.R. 673, 100 Eng.Rep.R. 363:

'* * * However there is no foundation on which this action can be supported; and if it had been intended, the Legislature would have interfered and given a remedy, as they did in the case of hue and cry. Thus this case stands on principle: but I think the case cited from Brooke's Abridgment is a direct authority to shew that no such action could be maintained; and the reason of that case is a good one, namely, because the action must be brought against the public.' (Emphasis supplied.)

While we have been unable to find the full report of the case abridged by Brooke, the language used by the opinion writers in the Devon case clearly indicates that antecedent to Russell v. The Men of Devon, supra, a previous judicial pronouncement had recognized the doctrine of municipal immunity. We do find, however, in II Holdsworth's History of English Law, 3d ed., p. 545, a reference stating the author of Brooke's Abridgments died in 1558. So it is clear the early decision Brooke abridged was made before that year.

We have also procured from the Lawyers Co-operative Publishing Company a photographic reproduction of the digest of the case as it appears in the editor's 1586 edition of Brooke's 'La Graunde Abridgment', as well as a photographic reproduction of the report itself as it appears in the 1680 edition of Year Book, Easter 5 Edward IV 2, pl. 24. Both of these seem to be written in medieval French. A careful and studied translation of these documents coincides substantially with the meaning ascribed to them by one of counsel in the Devon case, 2 T.R. 669, 100 Eng.Rep.R. 360, who represented it to be as follows:

'* * * if an highway be out of repair, by which my horse is mired, no action lies, 'car est populus et surra reforme per presentment;' which must be understood to mean, that, as the road ought to be repaired by the public, no individual can maintain an action against them for any injury arising from their neglect.'

Section 16-301, W.C.S.1945, says the Common Law of England prior to the fourth year of James I (1607) 'shall be the rule of decision in this state.' Thus by statute the doctrine of municipal immunity became the rule of decision in our State and it is only by statute that the doctrine should be abrogated.

Under these circumstances we are not free to accept the Florida court's theory as stated in Hargrove v. Town of Cocoa Beach, supra, and abolish the doctrine by judicial decree. Nor are we prepared to go along with the Florida court's assumption that the 1788 judicial recognition of the common law of England amounted to a court-originated doctrine. It seems more logical to conclude the doctrine was already a part of the common law, engrafted therein through long usage and custom.

In 38 Am.Jur., Municipal Corporations, § 573, p. 265, it is said:

'Following the decision in Russell v. Devon County, it became a settled principle of the common law that an individual could not maintain an action against a political subdivision of the state for injury resulting from negligence in the performance of any governmental function. * * *'

We cannot say the statement is inaccurate, although it might well be noted that the opinions in the Devon case only gave recognition to a principle which had been applied in an earlier decision rendered at least prior to 1558 in which the same doctrine was announced.

In the same volume of 38 Am.Jur., Municipal Corporations, § 620, pp. 317-319, instances are given where the doctrine of municipal immunity has been upheld. These included saying at page 319:

'* * * Likewise, a municipal corporation is not liable for a personal injury incurred by a citizen who was called upon by police officers to assist them in making an arrest. * * *'

At page 320,...