Payne v. Jackson County

• Decision Date: 25 September 1972
• Docket Number: No. 2,No. 55738,55738,2
• Citation: 484 S.W.2d 483
• Parties: Ralph E. PAYNE and Wanetta Payne, Appellants, v. COUNTY OF JACKSON, Missouri, et al., Respondents
• Court: Missouri Supreme Court

Page 483

484 S.W.2d 483

Ralph E. PAYNE and Wanetta Payne, Appellants, v. COUNTY OF JACKSON, Missouri, et al., Respondents.

No. 55738.

Supreme Court of Missouri, Division No. 2.

Sept. 25, 1972.

Jack A. Cochran, and Julius M. Oswald, Blue Springs, for appellants.

Jim Tom Reid, County Counselor, Lee S. Shapiro, Asst. County Counselor, Kansas City, for respondent County of Jackson.

WILLIAM H. BILLINGS, Special Judge.

Plaintiffs sued Jackson County, Missouri, and the drivers of two automobiles for the wrongful death of their teenage son who was a passenger in one of the motor vehicles. The negligence charged against Jackson County was in failing to erect a stop sign at the intersection where the two vehicles collided, and, in failing to inspect for stop signs which had been removed or destroyed at the intersection.

Jackson County's motion to dismiss was sustained by the trial court because of governmental immunity. Following a premature appeal of this order, plaintiffs compromised their claims against the two individuals and dismissed them from the suit. Plaintiffs now prosecute this appeal urging wholesale abolition of the doctrine of sovereign immunity in this state. This we judicially decline to do and affirm the judgment of dismissal.

Plaintiffs first contend this doctrine is not the public policy of Missouri. We disagree. In In Re Rahn's Estate, Mo., 316 Mo. 492, 291 S.W. 120, this court stated (l.c. 124): '. . . it is not the function of the judiciary to create or announce a public policy of its own . . . as such policy is found to be expressed in the Constitution, statutes, and judicial decisions of the state . . ..'

The Missouri Constitution and statutes are silent on the matter of sovereign immunity but the judicial decisions of this court have declared in no uncertain terms that this doctrine is the public policy in this state. This court en banc in November, 1966, in Smith v. Consolidated School District No. 2, Mo., 408 S.W.2d 50, declared the doctrine of sovereign immunity was 'one of fixed public policy' in Missouri. The court noted that the courts of Missouri had for more than a century held that political subdivisions of the state are not subject to liability in suits for negligence.

In Cullor v. Jackson Township Putnam County, Mo., 249 S.W.2d 393, the court observed some weakening of this doctrine in some jurisdictions but in reaffirming the rule in Missouri and denying recovery, said (l.c. 397): 'But there has been no such change in public policy of this state in that regard, either through statutory enactment or constitutional revision. . . ..' Also see Glenn v. Department of Corrections, Mo., 434 S.W.2d 473 (1968).

Plaintiffs, in seeking review of the doctrine of sovereign immunity and its abolition by judicial fiat, cite cases from Arizona, Florida, Michigan, Illinois, Colorado, California, Minnesota, Wisconsin, Kansas, Nebraska, Indiana, Kentucky and Rhode Island in support of their contention we should judicially bury the doctrine. The identical California, Florida, Illinois, Michigan, Minnesota and Wisconsin cases were cited as authorities to this court by the plaintiffs in Fette v. City of St. Louis, Mo., 366 S.W.2d 446. In upholding the rule of sovereign immunity the court rejected these authorities and said (l.c. 447): 'The view we have taken, stated in Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080, 1084, and recently restated in Gillen v. City of St. Louis, Mo., 345 S.W.2d 69, 73, is as follows: 'This whole doctrine of governmental immunity has been increasingly criticised. However, such nonliability is based not merely on the ancient view that the king can do no wrong, as frequently suggested; but also upon the principle that public officers have no authority to bind the sovereign (the whole people) except such as is given them by specific constitutional and statutory provisions. The general rules of respondeat superior cannot be applied to them without opening up unlimited possibilities for wasteful and dishonest dissipation of public funds. While the complexity of modern government may require a relaxation of present rules of absolute nonliability, undoubtedly this is a matter for the Legislature (which must authorize the collection and disbursement of public funds) to provide in the interest of more complete justice to the individual but under strict regulations and with very definite limitations to protect the public interest.' See also Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485, and cases therein cited. (Our emphasis.)

'We think the above-cited recent Minnesota case, (Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795) shows why this is properly a matter for the legislature. . . . The court stated the following suggested proposals that the legislature might adopt to meet the situation created by its abrogation of the doctrine (118 N.W.2d l.c. 804): '(1) A requirement for giving prompt notice of the claim after the occurrence of the tort, (2) a reduction in the usual period of limitations, (3) a monetary limit on the amount of liability, (4) the establishment of a special claims court or commission, or provision for trial by the court without a jury, and (5) the continuation of the defense of immunity as to some or all units of government for a limited or indefinite period of time.'

'If such legislation is required by the abrogation of this doctrine, and we think it is, it is our view that the whole matter should be left to the legislature. From the review of cases from other states in the opinion in the Minnesota case, we note that after the California decision, hereinabove cited: 'The California legislature promptly declared a moratorium on this and other claims similarly situated.' (118 N.W.2d l.c. 800). Likewise, it is stated that after the Illinois decision above cited: 'The Illinois Legislature responded promptly by reinstating tort immunity with respect to a number of subdivisions of government.' (118 N.W.2d l.c. 801.) All this confirms our view that whatever is done to change the doctrine of governmental immunity should be done by the legislature and not by the courts. (We have a precedent for legislative action in the Federal Tort Claims Act, U.S.C.A. Title 28, Chap. 171, Secs. 2671--2680, which has been followed in some states. See Annotation, 60 A.L.R.2d 1199.) It will be necessary to use public funds to settle claims or pay judgments and only the legislature can...