State ex rel. Wartick v. Teel
| Decision Date | 22 September 1987 |
| Docket Number | No. 15142,15142 |
| Citation | 737 S.W.2d 258 |
| Parties | STATE of Missouri, ex rel. Karen WARTICK and Paul Duane Wartick, Relators, v. Honorable Charles E. TEEL, Respondent. |
| Court | Missouri Court of Appeals |
Greg B. Carter, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for relators.
Chuck D. Brown, Joplin, for respondent.
The relators Karen Wartick and Paul Duane Wartick are defendants in a personal injury action pending in the Circuit Court of Jasper County. By this original proceeding in mandamus the relators seek an order directing reinstatement of their third-party petition for indemnification or contribution against the City of Joplin. This court issued its preliminary order.
The following facts are established by the record. The plaintiffs in the underlying personal injury action are Adrienne Hall, four years of age, and Burt Doug Hall and Louise Hall, her parents. By the third amended petition, Adrienne Hall alleges she was seriously injured on June 29, 1984, when a stone pillar fell upon her. By Count I she seeks recovery upon allegations that the stone pillar was upon relators' property; that it was in a deteriorated condition and constituted an "attractive nuisance." By Count II, her parents assert a derivative claim upon the same basis. By Counts III and IV those parties assert similar claims upon the basis of the relators maintaining a dangerous condition adjacent to a public way.
In a third-party petition against the City of Joplin the relators alleged the stone pillar was located upon a public alley of the city. They further alleged "the City, in complete derogation of its primary and non-delegable duty to keep the alley in a safe condition for travel and to keep it free from nuisances and defects, failed, omitted and neglected to maintain, repair, remove, barricade or safeguard said pillar." As stated, in the event of an adverse judgment against them, the relators sought indemnification or contribution by the city. The city filed a motion to dismiss the third-party petition. The trial court found the city was not insured against the liability asserted against it. On that basis it sustained the city's motion to dismiss the third-party petition. The relators' motion to reinstate the third-party petition was denied.
The relators contend that by virtue of Rule 52.11 they are entitled to seek indemnification or contribution by their third-party petition against the city. The respondent contends such relief is barred by the doctrine of sovereign immunity. The respondent cites the fact the city's motion to dismiss established that it had no liability insurance applicable to that claim. The respondent emphasizes the fact the injury occurred before the 1985 amendments to § 537.600. The respondent's basic argument in the brief is as follows:
This statute was construed by the Missouri Supreme Court in Bartley v. Special School District of St. Louis County, 649 S.W.2d 864 (Mo. banc 1983), to restrict the waiver of sovereign immunity to only those conditions mentioned in subparagraphs (1) and (2) of Section 537.600 and then only to the extent that the public entity had acquired insurance, or was self-insured, to indemnify it for damages alleged to have been caused.
On that basis, the respondent concludes that, as the city had no applicable liability insurance, the relators' claim asserted in their third-party petition was barred.
The recent history of the doctrine of sovereign immunity in Missouri is well known.
In 1977, the Missouri Supreme Court decided that because of the governmental/proprietary distinction, '[a] "maze of inconsistency" has developed in suits against cities, producing "uneven and unequal results which defy understanding." ' The Supreme Court then prospectively abolished sovereign immunity, and gave the legislature an opportunity to reinstate it. Jones v. State Highway Commission, 557 S.W.2d 225, 229 (Mo. banc 1977).
2 Mo. Local Government Law § 9.4 (Mo.Bar 2d ed. 1986). The legislature responded by the enactment of §§ 537.600 to 537.650. Bartley, relied upon by the respondent, held the following:
By enacting §§ 537.600--.650 the Missouri legislature intended to reestablish the doctrine as it existed prior to Jones [v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977) ] with any exceptions to its status being provided in those sections enacted. ... In following these basic guidelines, we find that the only exceptions to the doctrine as it existed prior to Jones are those contained in § 537.600(1) and (2)--operation of motor vehicles and condition of property--as modified by § 537.610, when insurance has been acquired.
Bartley v. Special School District of St. Louis County, supra, at 870. The effects of the 1985 amendments to § 537.600 have included the following. "The express waivers of immunity for operation of motor vehicles and for dangerous conditions of property are absolute waivers whether or not the entity was functioning in a governmental or proprietary capacity and whether or not the entity is covered by liability insurance." 2 Mo. Bar Government Law § 9.6.
Whether or not those amendments are in whole or in part retroactive, see Cates v. Webster, 727 S.W.2d 901 (Mo.1987) and State ex rel. Missouri Highway and Transportation Commission v. Appelquist, 698 S.W.2d 883 (Mo.App.1985), is not decisive. The purpose of the two exceptions contained in § 537.600 is to waive immunity in the instances therein specified when, before Jones, such immunity would have been recognized. For example, the operation of a motor vehicle by a state employee, or the dangerous condition of state property. Cf. State ex rel. New Liberty v. Pratt, 687 S.W.2d 184 (Mo. banc 1985); Page v. Metropolitan St. Louis Sewer District, 377 S.W.2d 348 (Mo.1964); McConnell v. St. Louis County, 655 S.W.2d 654 (Mo.App.1983). By waiving immunity in the instances therein specified, the two exceptions contained in § 537.600 do not create sovereign immunity where it did not exist before Jones.
Bartley is not authority to the contrary because it dealt with a governmental act of a school district. "Prior to 1977, the state and other governmental agencies, such as school districts, townships and sewer districts, were generally immune from claims." 2 Mo. Local Government Law § 9.4. Also see Beiser v. Parkway School Dist., 589 S.W.2d 277 (Mo. banc 1979). The doctrine of sovereign immunity extended to governmental functions of municipalities but not to proprietary functions. Oberkramer v. City of Ellisville, 650 S.W.2d 286, 295 (Mo.App.1983) (emphasis added). Also see State ex rel. New Liberty v. Pratt, supra.
However, despite the difficulties with the governmental-proprietary distinction, the General Assembly by enactment of § 537.600 ... reinstated '[s]uch sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, ...' the date of the opinion in Jones, supra. Hence the distinction is still viable and must be applied.
State ex rel. Allen v. Barker, supra (emphasis added). Also see Gabbett v. Pike County Memorial Hospital, 675 S.W.2d 950 (Mo.App.1984). It is not necessary to consider the application of the governmental and proprietary distinction as applicable to a school district. See Allen v. Salina Broadcasting, Inc., 630 S.W.2d 225 (Mo.App.1982); 2 Mo. Local Government § 9.6. It is clear the distinction between governmental and proprietary functions is applicable to the doctrine of sovereign immunity in respect to municipalities. Before Jones, the duty of the city with respect to its streets and alleys was a proprietary function. Myers v. City of Palmyra, 355 S.W.2d 17 (Mo.1962), 92 A.L.R.2d 791 (1963). It yet is. Davis v. City of St. Louis, 612 S.W.2d 812 (Mo.App.1981). Cf. Larabee v. City of Kansas City, 697 S.W.2d 177 (Mo.App.1985); Allen v. Salina Broadcasting, Inc., supra. On June 29, 1984, the doctrine of sovereign immunity did not extend to a breach of that duty.
Under Rule 52.11(a) after the passage of 10 days following the filing of a defendant's answer, leave of court must be obtained by motion with notice to all parties for the filing of a third party petition. This requirement indicates that the filing of a third party petition after the 10 day period is not a matter of right. Rather, appeal must be made to the discretion of the trial court.
State ex rel. Peavey Co. v. Corcoran, 714 S.W.2d 943, 945 (Mo.App.1986). The relators did not file their third-party petition within ten days after they filed their original answer. They suggest they filed it upon discovery of the location of the pillar. The respondent does not deny that suggestion. Whether or not the belated discovery of the location of the pillar caused the filing of the third-party petition to be a matter of right need not be considered. The respondent does not contend the third-party petition was dismissed on a discretionary basis.
The purpose of third party practice is to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence to obtain consistent results from identical or similar evidence and to accomplish ultimate justice for all concerned with economy of litigation and without prejudice to the rights of another.
State ex rel. Laclede Gas Company v. Godfrey, 468 S.W.2d 693, 698 (Mo.App.1971). "The teaching of Godfrey is that an appellate court will intervene by extraordinary writ where the action of the trial court results in a subversion of the desirable purpose of a procedural rule for no discernible reason." State ex rel. Peavey Co. v. Corcoran, supra, at 945. That principle is applicable where...
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