Snyder v. Mouser, 470A70

• Decision Date: 07 September 1971
• Docket Number: No. 2,No. 470A70,470A70,2
• Citation: 149 Ind.App. 334,272 N.E.2d 627,26 Ind.Dec. 657
• Parties: Mabel SNYDER, Administratrix of the Estate of Robert J. Snyder, Deceased, Appellant, v. Louise MOUSER and the County Department of Public Welfare of Sullivan County, Indiana, Appellees
• Court: Indiana Appellate Court

Page 627

272 N.E.2d 627

149 Ind.App. 334

Mabel SNYDER, Administratrix of the Estate of Robert J Snyder, Deceased, Appellant, v. Louise MOUSER and the County Department of Public Welfare of Sullivan County, Indiana, Appellees.

No. 470A70.

Appellate Court of Indiana, Division No. 2.

Sept. 7, 1971.

Dix, Patrick, Ratcliffe & Adamson, Terre Haute, for appellant.

Cox, Zwerner, Gambill & Sullivan, Terre Haute, for appellees.

WHITE, Judge.

The County Department of Public Welfare of Sullivan County, (hereinafter County Department) and Louise Mouser, a County Department caseworker, placed a minor ward in the home of Mr. and Mrs. Robert J. Snyder. The ward is alleged to have had 'homicidal propensities' known to defendants. While living in the Snyder home the ward shot and killed Mr. Snyder. Mrs. Snyder, as administratrix of her husband's estate, brought this action for wrongful death against County Department and the caseworker alleging the death was proximately caused by defendants' negligent failure to warn decedent of the ward's 'homicidal propensities.' The trial court dismissed plaintiff's amended complaint on the separate motions of the defendants and this appeal followed the overruling of plaintiff's motion to correct errors. That motion indicates that the dismissal was based on a trial court holding that both defendants were immune to civil liability for the negligence alleged in the amended complaint.

As to the caseworker's claim of immunity, the answer is simple. IC 1971, 12--1--4--3 (formerly Ind.Acts 1936 (Spec.Sess.), Ch. 3, § 29, p. 12), Ind.Ann.Stat. § 52--1128 (Burns 1964), provides:

'Neither the members of the state or county board, the administrator nor the several officers and employees of the state or county departments shall be personally liable, except to the state of Indiana or the county for any official act done or omitted in connection with the performance of their respective duties under the provisions of this act.'

The complaint alleges that at all times pertinent, defendant Mouser was a caseworker of the defendant County Department and was in the scope and course of her employment and official duties as such. This is tantamount to alleging that she was either an officer or an employee of the County Department and that her allegedly negligent omissions were official acts omitted. The language of the statute requires no interpretation or construction. It clearly proscribes personal liability (except to the state or county) for any official act omitted.

The statute comes to us without challenge as to its validity, ¹ and we accept it at its face value. Indeed, plaintiff concedes the statute's grant of immunity to the caseworker by stating in her reply brief:

'The protection provided under Burns 52--1128 to the administrator or the employees of the State or County Welfare Departments insofar as personal liability is concerned does not prohibit the bringing of an action to determine their wrong doing. It simply prohibits the enforcement of a personal judgment against the particular wrongdoer who is acting in his official capacity.'

Plaintiff has cited no authority, and we are confident none exists, to support her implied suggestion that one immune from enforcement of a judgment for damages for certain alleged wrongdoing may nevertheless be prosecuted civilly for that alleged wrongdoing merely to obtain a judicial declaration that there was wrongdoing. On the contrary, it is well settled that the absence of a justiciable controversy relieves courts of the futile function of deciding abstract issues. ²

As to the County Department's claim of immunity, defense counsel concede that the sovereign immunity of cities and counties, as well as the distinction (for immunity purposes) between their governmental and proprietary functions, has been abolished. ³ The County Department contends, however, that it is not merely a county department but that it is in reality an agency of the State of Indiana. Further, that Perkins v. State (1969), Ind., 251 N.E.2d 30, 18 Ind.Dec. 555, 561, makes it clear that the immunity of the State of Indiana for injurious acts committed in the exercise of governmental functions has not been abolished. ⁴

There is merit to defendant County Department's argument that it is an agency of state government, but no present merit to the consequence ascribed thereto. The idea is neither ancient nor modern. It was enshrined as law in Indiana from 1895 to 1967.

There is a line of late nineteenth century Indiana cases which hold counties liable for negligence in bridge maintenance. Board of Commissioners of Jasper County v. Allman (1895), 142 Ind. 573, 595, 42 N.E. 206, 212, overruled those cases on the ground 'that counties, being subdivisions of the state, are instrumentalities of government and exercise authority given by the state, and are no more liable for the acts or omissions of their officers than the state.' Judge Monks who wrote that opinion later wrote State ex rel. Board of Com'rs of County of Hendricks v. Board of Com'rs of County of Marion (1908), 170 Ind. 595, 85 N.E. 513, in which he said:

'A county is an involuntary corporation, organized as a political subdivision of the state by the Legislature, the sovereign power, solely for governmental purposes. Such subdivisions are instrumentalities of government, exercising the powers delegated by the state and acting for the state. As the state is not liable for the acts or omissions of its officers, a county is not liable for the acts or omissions of its officers in relation to such functions, because they belong to the state. Board (etc.) v. Mowbray (1903), 160 Ind. 10, 12, 66 N.E. 46, and authorities cited; Board (etc.) v. Allman (1895), 142 Ind. 573, 42 N.E. 206, 39 L.R.A. 58, and cases cited; Cones v. Board (etc.) (1894), 137 Ind. 404, 37 N.E. 272, and cases cited; Board (etc.) v. Daily (1892), 132 Ind. 73, 31 N.E. 531; Smith v. Board (etc.) (1892), 131 Ind. 116, 30 N.E. 949; Morris v. Board (etc.) (1892), 131 Ind. 285, 31 N.E. 77; White v. Board (etc.) (1891), 129 Ind. 396, 28 N.E. 846; Summers v. Board (etc.) (1885), 103 Ind. 262, 2 N.E. 725, 53 Am.Rep. 512.' (Emphasis added.)

A variation of that same rationale rendered incorporated cities and towns immune as to their involuntary functions in which they acted as agencies of the state government, ⁵ but held them liable for the manner in which they used their property in matters of purely local concern in which they acted voluntarily. ⁶

The significant distinction between counties, and townships, school corporations (i.e., public quasi corporations), on the one hand and incorporated cities and towns on the other hand, was that the former were considered to be involuntary corporations and the latter to be voluntary corporations. As the foregoing quotation indicates, it was assumed that those involuntary corporations were 'organized * * * solely for governmental purposes.' Thus all their functions were conclusively presumed to be governmental functions and, as such, were clothed with governmental immunity. ⁷ As in the law of respondeat superior, the status of counties as agencies of the State arises out of the power of control, not out of the exercise of that power. ⁸ Nothing in any of the reported cases in which counties, towhships or school corporations have been accorded governmental immunity as agencies of the state has ever suggested that the quantum of state level control provided for by statute, or actually exercised, has any bearing at all on the agency status or on the local unit's immunity. For instance until Brinkman v. City of Indianapolis, supra, n. 3, city police activities were always immune, but as Arnett v. State (1907), 168 Ind. 180, 182, 80 N.E. 153, demonstrates, statutory authority for actual control of city police by state officers has varied greatly in different times. The fact, if it be a fact, that welfare statutes authorize a greater quantum of state control than is presently authorized for most other county boards and county officers (but perhaps less control than the statutes in Arnett authorize the state to exercise over some city police forces) is no ground for any distinction as to tort liability or state agency, as between county welfare departments and other departments of county government.

Although County Department is a state agency, just as every county office, board, commission, and department is, it is also quite obviously a county department ⁹ in more than merely its name. It is administered by a county board of public welfare ¹⁰ whose members are county residents appointed by local judges ¹¹ and a 'county director' who must be a county resident, if possible, appointed by the board subject to state board removal powers, ¹² and its welfare activities are confined to the county. ¹³

The dismantling of the state agency theory of county governmental immunity began with Flowers v. Board of Commissioners of County of Vanderburgh (1960), 240 Ind. 668, 168 N.E.2d 224, which held a county liable for its tort in connection with a proprietary function (operating an admission charging skating rink in a park). In so doing it 'disapproved' inconsistent statements in Hummer v. School City of Hartford City (1953), 124 Ind.App. 30, 112 N.E.2d 891, which of course included the statement (124 Ind.App. at 42, 112 N.E.2d 891) to the effect that all involuntary units of government, including counties, enjoy governmental immunity from all tort liability, including torts in connection with proprietary activities. (see p. 630, n. 7.)

The next step was taken in Brinkman v. City of Indianapolis (1967), 141 Ind.App. 662, 231 N.E.2d 169, which held that a city was liable for the torts of its police officers under the doctrine of respondeat superior. That holding is completely inconsistent with the rationale of county governmental immunity since it is based on a repudiation of the doctrine which had accorded governmental immunity to...