Marshall v. City of Green Bay

• Decision Date: 08 January 1963
• Parties: John E. MARSHALL and Helen A. Marshall, Plaintiffs-Appellants, v. CITY OF GREEN BAY, a municipal corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 715

118 N.W.2d 715

18 Wis.2d 496

John E. MARSHALL and Helen A. Marshall, Plaintiffs-Appellants, v. CITY OF GREEN BAY, a municipal corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

Jan. 8, 1963.

Robert P. Stebbins, Green Bay, for appellants.

Welsh, Trowbridge, Bills, Planert & Gould, Green Bay, for respondent.

HALLOWS, Justice.

The plaintiffs advance four grounds why the complaint states a cause of action: (1) They were as diligent in pursuing their claims and in challenging governmental immunity as were the plaintiffs in Holytz v. City of Milwaukee, supra, and should receive equal treatment, (2) the reason for the prospective application of the abolition of governmental immunity does not apply because the defendant has liability insurance, (3) the maintenance and operation of the toboggan hill outside of the corporate limits of the city was a proprietary function and independent of the Holytz Case the city is liable for negligence, and (4) and defendant has waived its immunity by the purchase of insurance to the extent of the policy limits and is estopped from asserting the defense of governmental immunity. The defendant argues since the decision in the Holytz Case is to be applied prospectively only as of July 15, 1962, it has no application to the instant case and the law of this state at the time of the alleged accident forecloses recovery.

In abolishing governmental immunity for torts, we advisedly made the new rule prospective only and postponed the effective date for a short period of time after the date of the decision. We did make an exception to the prospective effect of the new rule by making it applicable to the case in which it was announced. The same judicial method or technique of making a prospective ruling applicable to the case at bar was used when this court abolished charitable hospital immunity. Kojis v. Doctors Hospital (1961), 12 Wis.2d 367, 107 N.W.2d 131, 292. Applying a prospective new rule of law to the case in which it was announced was justified in both instances on pragmatic grounds in the normal judicial process of adjudication. It is true the plaintiffs in this case raised the issue of governmental immunity and were diligent in pursuing their claims prior to the decision in Holytz, and on similar grounds we have allowed recovery in instances where this court has overruled a previous doctrine and has limited its retroactive application. Olson v. Augsberger (1962), Wis., 118 N.W.2d 194. Consistent with the Blackstonian theory of jurisprudence that an appellate court declares the law which it discovers and later decisions which seem to change the law do not do so but only declare the true rule which always was the law, there is some merit in claiming any judicial change in the law must necessarily be retroactive.

The plaintiff admits when a case is overruled a line must be drawn somewhere and no matter where it is drawn some hardships are inevitable. In abolishing governmental immunity and making the new rule effective prospectively only, this court was conscious it was not announcing the law as it had been or that the prior cases were erroneous. The same view was taken by this court in the Kojis Case, Bielski v. Schulze (1962), 16 Wis.2d 1, 114 N.W.2d 105 and McConville v. State Farm Mut. Automobile Ins. Co. (1962), 15 Wis.2d 374, 113 N.W.2d 14. In making those rules as it did, this court not only decided the cases but laid down rules of law for future guidance. It has been commented that in doing so this court made judicial law and so it did. Because of the nature of the governmental immunity rule, we are not inclined to give retrospective application to the new rule. On the problem of prospective overruling, see Levy, Realist Jurisprudence and Prospective Overruling, 109 University of Pennsylvania Law Review (1960), p. 1; The Legal Process, p. 172. ¹

The next question is whether the operation by a municipality of a toboggan hill outside of its corporate limits is a governmental or a proprietary function. The appellant contends a municipality cannot perform a governmental function outside of its corporate limits and necessarily the maintenance and operation of the toboggan hill was proprietary. The identical issue was considered and resolved adversely to the plaintiffs in Cegelski v. City of Green By (1939), 231 Wis. 89, 285 N.W. 343. We are not inclined to overrule that case.

The final issue is whether the defendant waived its immunity by contracting for liability insurance covering the acts complained of and providing the insurer would not raise the defense of governmental immunity. We approach this problem as we would if the Holytz Case had not been decided.

In Pohland v. City of Sheboygan (1947), 251 Wis. 20, 27 N.W.2d 736, a toboggan slide case, the court held among other things a city had no power to make an indemnity contract unless necessary for its protection and construed a general indemnity contract as extending only to liability which was beyond the reach of the immunity. This was the first case to decide the question of waiver against contentions of the plaintiff. We must overrule Pohland on this point. The power of a city to waive its tort immunity need not rest upon an express grant of statutory authority. The immunity granted municipalities from tort liability was created by case law basically and primarily to protect public funds and property. Such immunity can be waived by the municipality when it has secured that purpose by insurance and believes a waiver to be advantageous or desirable. We find no merit so far as tort liability is concerned in the doctrine that 'the king can do no wrong' and therefore a municipality by waiving its immunity gives up part of its sovereignty.

An incorporated city has sufficient autonomy that inherent in and incidental to the city's power to operate and maintain a toboggan slide outside of its corporate limits for public recreation, although such activity has been considered a governmental function, is the power to compensate members of the public who are injured in the use of such facilities through its negligence and that of its servants. This is but recognizing a humanitarian duty to the public as part of the city's welfare functions and power. If, as stated in Pohland, such insurance may be justified to protect the city against the expense of defending baseless actions, there is as much reason to use public funds to pay premiums for insurance to protect the city from liability which it recognizes ought to exist.

In the case at bar, it is apparent the city intended to step down from its pedestal of immunity. The policy of insurance was a contract between the city and the insurer. Its terms as alleged in the complaint provided the insurer would defend any action for damages against the city based...