McConnell v. St. Louis County, 44512

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: SMITH; PUDLOWSKI; KELLY; PUDLOWSKI
• Citation: 655 S.W.2d 654
• Parties: Virginia R. McCONNELL, Plaintiff-Respondent, v. ST. LOUIS COUNTY, Missouri and Robert E. Emerick, Defendants-Appellants.
• Docket Number: No. 44512,44512
• Decision Date: 14 June 1983

Page 654

655 S.W.2d 654 Virginia R. McCONNELL, Plaintiff-Respondent,
v.
ST. LOUIS COUNTY, Missouri and Robert E. Emerick,
Defendants-Appellants. No. 44512. Missouri Court of Appeals,
Eastern District,
En Banc. June 14, 1983.
Motion for Rehearing and/or Transfer to
Supreme Court Denied Aug. 1, 1983.
Application to Transfer Denied
Sept. 20, 1983.

Page 655

Ben Ely, Jr., Victoria Spann Sheehan, St. Louis, for defendants-appellants.

Rene E. Lusser, St. Louis, for plaintiff-respondent.

SMITH, Presiding Judge.

Defendant appeals from a judgment against it of $65,000 based on a jury verdict. The judgment was affirmed by a panel of this court and a motion for rehearing thereafter granted before an expanded panel. We now reverse the judgment in part.

The lawsuit arose from a one-bus accident occurring during a "Fall Foliage" outing sponsored by the defendant, St. Louis County. Mrs. McConnell was one of 40 persons who made claims as a result of the accident. She subsequently died from causes unrelated to the accident and her executrix was substituted as plaintiff. Her suit was brought against defendant and Robert Emerick, the bus driver, who was discharged in bankruptcy prior to trial. ¹ Defendant confessed liability and offered to confess judgment for $20,300.90 which was rejected by plaintiff. That figure constituted the amount remaining of defendant's $800,000 liability insurance policy not already distributed to other claimants through settlement. The amount remaining was stipulated to by the parties.

On appeal defendant raises two issues. The first is that the judgment should have been entered for $20,300.90 because of the restrictions of Sec. 537.610, RSMo 1978, imposing a maximum liability of $800,000 on St. Louis County. The second point involves the correctness of a damage instruction. Because we agree with defendant's first contention and because it offered before trial to confess judgment for $20,300.90 we need not reach the second contention.

Plaintiff contends that Secs. 537.600 and 537.610 are not applicable here because the accident occurred while the county was exercising a proprietary rather than a governmental function.

In Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), the Supreme Court abolished the doctrine of sovereign immunity prospectively for torts occurring "on and after August 15, 1978." The General Assembly responded to that decision by enacting Secs. 537.600-537.650. Sec. 537.600 provides that: "Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977 [the date of Jones, supra ], except to the extent waived, abrogated or

Page 656

modified by statutes in effect prior to that date, shall remain in full force and effect; ...." Prior to Jones, the courts held that municipalities were not protected by sovereign immunity for torts arising from their proprietary functions but were protected from such torts arising from their governmental functions. This distinction was not applicable to the state and its political subdivisions which were fully protected under the immunity doctrine for their tortious acts. Wood v. County of Jackson, 463 S.W.2d 834 (Mo.1971) [1, 2]; Payne v. County of Jackson, 484 S.W.2d 483 (Mo.1972). We specifically so held as to St. Louis County in Coleman v. McNary, 549 S.W.2d 568 (Mo.App.1977). See also, Connor v. Crawford County, 588 S.W.2d 532 (Mo.App.1979). Pre-Jones, school districts were treated as political subdivisions for immunity purposes. Rennie v. Belleview School District, 521 S.W.2d 423 (Mo. banc 1975) ; Smith v. Consolidated School District No. 2, 408 S.W.2d 50 (Mo. banc 1966) [4-6]. The governmental-proprietary distinction drawn as to municipal corporations, but not as to political subdivisions, created the anomalous situation that a plaintiff's right of recovery for the same tortious conduct depended on whether the tortfeasor was a municipality or a political subdivision such as a county. See, Wood v. County of Jackson, supra (Finch, J., Concurring). Nevertheless, the governmental-proprietary distinction was not applied pre-Jones to political subdivisions of the state.

Following passage of 537.600-537.610, the case of State ex rel. Allen v. Barker, 581 S.W.2d 818 (Mo. banc 1979), came before the court. That case involved an activity which could arguably fit either the governmental or the proprietary function as defined in municipality cases. The entity involved, however, was a school district, where theretofore the nature of the function made no difference. The court, seizing upon the language of Sec. 537.600, concluded that the reinstatement of pre-Jones law served to reinstate also the governmental-proprietary dichotomy. The court did not address the line of pre-Jones cases holding such dichotomy of function was inapplicable when determining immunity of political subdivisions other than municipalities. The court in Barker remanded the case to give the plaintiff an opportunity to amend the petition "to aver sufficient facts to bring the cause within the [proprietary] exception to the general doctrine of immunity." Barker does not specifically overrule any of the pre-Jones cases. Following Barker, three appellate decisions in reliance upon Barker have concluded that the immunity of a school district is to be determined with reference to the governmental-proprietary distinction. Allen v. Salina Broadcasting, Inc., 630 S.W.2d 225 (Mo.App.1982); Johnson v. Carthell, 631 S.W.2d 923 (Mo.App.1982); Fowler v. Board of Regents, etc., 637 S.W.2d 352 (Mo.App.1982).

From Barker, Allen, Johnson and Fowler, plaintiff argues that all sovereign immunity is now determined by reference to the governmental-proprietary function test. We cannot interpret those cases so broadly. At most they serve to bring school districts into the fold with municipalities. But in the absence of an express statement that such a test is also to apply to counties, or an express overruling of the pre-Jones cases regarding counties, we are unable to conclude that Barker and its progeny intended such a sweeping result. We find it especially difficult to reach such a conclusion in view of the statutory language reinstating sovereign immunity as it existed prior to Jones. Prior to that decision, St. Louis County was immune from the suit brought by the plaintiff and we do not find that Barker changes that immunity. Plaintiff's right of recovery rests upon Sec. 537.600 and .610 to which we now turn.

Sec. 537.600 creates two situations in which sovereign immunity is waived, i.e.: (1) operation of motor vehicles and (2) condition of property. Plaintiff's cause of action is clearly within the first situation. In Bartley v. Special School District of St. Louis County, 649 S.W.2d 864 (Mo. banc 1983), the Supreme Court held that in addition to those...