Pruett v. City of Rosedale, 53222

• Decision Date: 10 November 1982
• Docket Number: No. 53222,53222
• Citation: 421 So.2d 1046
• Parties: Keith PRUETT v. CITY OF ROSEDALE, Mississippi.
• Court: Mississippi Supreme Court

Page 1046

421 So.2d 1046

Keith PRUETT v. CITY OF ROSEDALE, Mississippi.

No. 53222.

Supreme Court of Mississippi.

Nov. 10, 1982.

W. Allen Pepper, Jr., Cleveland, for appellant.

Walls, Buck & Irving, Tyree Irving, Greenville, for appellee.

En Banc.

BOWLING, Justice, for the Court:

This cause involves the abolition of the judicially created principle of sovereign immunity. The appeal is from the Circuit Court of Bolivar County. Appellant Keith Pruett filed his tort action against the City of Rosedale contending he was injured through the negligence of the city. Appellee, the city, filed a demurrer which was sustained by the trial court. Both parties admitted that this action of the lower court was for the reason that the city was immune from tort suit involving the particular activities claimed to have caused appellant's injuries. In their briefs and oral argument before this Court, both parties only argued whether or not the city of Rosedale, a political subdivision of the state, was immune from suit under the sovereign immunity doctrine.

We say at the outset that we think the time has come to abolish the judicially created concept of sovereign immunity with certain qualifications. These qualifications shall be hereinafter discussed and listed specifically in the summary of the opinion.

To fully understand the import of our actions here, we need briefly to look at the history of "sovereign immunity." The doctrine For a good many years now, state after state has decided that the principle that the King [state] can do no wrong is not a legal principle that should receive a blanket application in modern times. There are many examples of the inequities involved in this principle. Under modern times, it is disadvantageous to both members of the public and members of the sovereign state. For the layman, an appropriate example would be where a conservation officer while on business for the state and operating an uninsured state vehicle, in the process of trying to apprehend a violator, and for some negligent reason, lost control of the state vehicle and injures an innocent person, both the injured person and the state employee are in deep trouble. All the state has to do is say, "we are the sovereign king and you do not have a claim for your injuries received through no fault of yours." Furthermore, the state employee is subject to a personal suit and the entire matter would have a great chance of ruining two persons, both the state employee and the innocent member of the public.

                was developed in England many years before this country came into being.  The basis of the doctrine was "the King can do no wrong."   The Revolutionary War was then fought for the purpose of severing our control by the mother country, including the King, who could do no wrong.  Although the founding fathers disagreed with many of the activities of the English ruling powers, the basic laws later adopted by this state, as well as all others except one, were founded on the British law.  This foundation carried over into it the sovereign immunity existing in Britain.  We shall not lengthen this opinion by going into the reasons why, except to say that the governmental and business situations at the beginning of this country were such that the founding fathers thought sovereign immunity at that time was proper
                

We could continue and give many examples of why the absolute sovereign immunity doctrine is out of date in modern society and modern legal concepts. The inequity of the situation is articulated by examining our safety responsibility law which requires insurance coverage of all vehicles operated by persons, firms, co-partnerships, associations, etc., but expressly provides that such requirements do not apply with respect to any motor vehicle owned by the State of Mississippi or any subdivision of this state. The injustice of this legal prohibition as explained in the above set out example is obvious.

We hasten to say that the legislature has authorized a certain few of the agencies and political subdivisions to carry insurance and also abolished the immunity of the sovereign to the limit of the insurance carried. We would have hoped that this action by this time would have been extended to protect all citizens who might be injured by the sovereign, but this has not been done. This leaves us to say as we shall hereinafter discuss in more detail, that in our opinion, the control and policing of sovereign immunity is a legislative responsibility and not that of the judiciary. The sovereign immunity doctrine is a creature of the judiciary. We are of the opinion that it should not be so; but that as said above, the details of handling the question is legislative rather than judicial. As has been said by many of the states' highest courts, the judicial branch is leaving the matter to the legislative branch. It was judicially created and necessarily should be judicially abrogated.

Research reveals that practically all of the states have abrogated and abolished the sovereign immunity doctrine. The vast majority has done so completely, some have retained certain prohibitions. There are only six [including Mississippi] which have not taken any action or have not clarified their positions. Our sister states of Louisiana, Alabama and Florida have abolished the immunity of the sovereign. The Supreme Court of Louisiana in Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Co., Inc., 273 So.2d 19 (La.1973), in abolishing immunity mentioned three basic reasons: (1) that it was manifestly unfair to the injured persons; (2) that it tends toward governmental irresponsibility; and (3) it is an unnecessary exception to the policies of the state as set Governmental responsibility is needed more today than ever. There is hardly any sector of private life and activity free from governmental intervention. The myriad State agencies and their employees almost defy inventory, to say nothing of control by the people whom they purport to serve. It has not been the policy of the legislature to permit employees of agencies to injure, intentionally or carelessly, private citizens. It is and should be the policy of the State, enforced through its courts, to require boards and agencies to act responsibly, or be subject to answer in court.

forth in its constitution. The Louisiana Court stated:

In connection with a study of the Louisiana opinion, we note Article III, Section 24, Mississippi Constitution 1890, which reads as follows:

All courts shall be open; and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice shall be administered, without sale, denial, or delay.

The Alabama Supreme Court in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), in abolishing the doctrine of sovereign immunity said:

We do not overrule old case law lightly or flippantly. But, where precedent can no longer be supported by reason and justice, we perceive it our duty to reexamine, and if need be, overrule court made law.

The Supreme Court of Florida in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (1957), said:

The immunity theory has been further supported with the idea that it is better for an individual to suffer a grievous wrong than to impose liability on the people vicariously through their government. If there is anything more than a sham to our constitutional guarantee that the courts shall always be open to redress wrongs and to our sense of justice that there shall be a remedy for every wrong committed, then certainly this basis for the rule cannot be supported.

It would be enlightening to quote from all of the vast majority of states that have abolished sovereign immunity but this would make this opinion entirely too long. We think, however, a quote from a few recent opinions would be helpful. The Supreme Court of New Mexico in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), quoted the Supreme Court of Illinois in Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 21-22, 163 N.E.2d 89, 94 (1959) by stating:

"It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, 'the King can do no wrong,' should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs...." Likewise, we agree with the Supreme Court of Florida that in preserving the sovereign immunity theory, courts have overlooked the fact that the Revolutionary War was fought to abolish that "divine right of Kings" on which the theory is based. (Citations omitted).

The Supreme Court of Minnesota, in abolishing the doctrine, stated in the case of Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975):

While we are not compelled to follow the example of other courts, we are persuaded by their logic and adopt their conclusion. One of the paramount interests of the members of an organized and civilized society is that they be afforded protection against harm to their persons, properties, and characters. The logical extension of that interest is that, if harm is wrongfully inflicted upon an individual in such a society, he should have an opportunity Two of the most recent states to abolish sovereign immunity are Missouri and Pennsylvania. The Supreme Court of Missouri in the case of Jones v. State Highway Commission, 557 S.W.2d 225 (1977), said the following:

to obtain a reasonable and adequate remedy against the wrongdoer, either to undo the harm inflicted or to provide compensation...