State v. Daley
| Decision Date | 26 September 1972 |
| Docket Number | No. 771A128,771A128 |
| Citation | 153 Ind.App. 330,287 N.E.2d 552 |
| Parties | STATE of Indiana, Appellant (Defendant Below), v. Lydia J. DALEY, Administratrix of the Estate of Melvin H. Daley, Deceased, Appellee (Plaintiff-Below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellant.
Young & Young, Thomas J. Young, Lila J. Young, Indianapolis, Paul Smith, Webb, Webb, Smith, Pearce & Barr, Noblesville, for appellee.
CASE SUMMARY--This is an appeal by the defendant-appellant State of Indiana (the State) in a wrongful death action brought by plaintiff-appellee Lydia J. Daley (Daley) which resulted in a jury verdict of $400,000 for the death of her husband, Melvin H. Daley (the Deceased). We affirm.
FACTS--On August 19, 1966, the Deceased was driving a truck along Interstate Highway 65 in Indiana when a State employee, operating a State slope mower on the berm of Interstate Highway 65, suddenly swerved without warning directly into the Deceased's path. The Deceased lost control of his truck, which then collided with a bridge abutment, causing his death.
At the time of his death the Deceased was 34 years of age, with a normal life expectancy for his age (36.59 years), in good health, and had no physical impairments. The evidence showed that he was a good husband, father, and provider and joyfully participated in family life with his wife and two children.
During most of his employable years, the Deceased drove trucks as an occupation. For a few years he held jobs which permitted him to be home each night. At the time of his death he was again employed as a truck driver by a company which limited its business to short distance, specialized hauling.
At the time of his death the Deceased had been employed by his employer for about three months at an average weekly salary of $225.00. His average taxable income for the four complete years of 1962--1965, inclusive, was $4,746.95.
His employer testified that the Deceased was an 'extraordinary employee' and that he was a
The employer further testified that the nature of the hauling done by his company required special handling and that his company paid several percentage points above actual scale at the time of the fatal accident. Because it was special type work, the company always compensated its drivers accordingly.
The Deceased was a member of the Teamsters Union as were other employees of this particular company.
The uncontroverted testimony of an expert economist, Professor Roberts of Butler University, computed the Deceased's earnings from the date of his death until his retirement at age 65 to be in excess of $400,000 had the Deceased lived his life expectancy. By way of summary Professor Roberts' figures were:
1. Total earnings lost from the date of
death (August 1966) to retirement at
age 65 based on the Deceased's projected
annual earnings for the year
1966 and an expected 5% yearly
wage increase for every year worked
thereafter: $916,000
2. Deduction for union dues, leaving: $913,000
3. Deduction for the possibility of an
early death during employment years
based on mortality tables, leaving: $795,000
4. $795,000 discounted to a present
value, leaving: $459,000
The case was tried before a jury which returned a verdict of $400,000 for Daley and judgment was entered accordingly on February 3, 1971.
The State now appeals.
ISSUE ONE. Is the State immune from liability for damages arising out of the negligent operation of its slope mower along a State highway?
ISSUE TWO. Did the trial court commit reversible error by entering judgment against the State for an amount in excess of the policy limits of the applicable liability insurance of the State?
ISSUE THREE. Are the damages awarded Daley in the amount of $400,000 so excessive as to be contrary to law?
As to ISSUE ONE, the State contends that highway construction, maintenance, and repair are government functions, are not proprietary in nature, and that the operation of a slope mower on the highway constitutes highway maintenance and such government activity is immune from tort liability. Also, various policy considerations are urged by the State for retention of the doctrine of sovereign immunity.
Daley's reply is, inter alia, that immunity of the State for careless operation of its motor vehicles is contrary to the basic concepts underlying the field of tort law; that it is illogical to grant immunity to the State and not to other political subdivisions of the State; that highway maintenance is a proprietary function which is exempt from sovereign immunity; and that policy considerations are inappropriate to judicial determination. Daley further takes the position that the doctrine of sovereign immunity is a creature of the common law and since it is inconsistent with modern conditions should be totally abrogated in the negligence area under consideration in conformity with the law of other states.
As to ISSUE TWO, the State interprets Ind.Ann.Stat. § 39--1819 (Burns 1965), I.C. (1971) 27--7--4--2 (hereafter the Insurance Statute), as clearly limiting any liability of the State to the amount of the policy limits. As the value of the liability insurance policy in this case is $15,000, any judgment in excess thereof is not within the limits of the liability insurance policy.
Daley's response is that this statute was enacted thirty years ago, at a time when the State was generally immune from liability for all of its activities, and the only purpose of the statute was to authorize the purchase of a liability insurance policy and to waive existing immunity to the extent of the insurance coverage. No immunity remains for the State to waive so the Insurance Statute is obsolete--and inapplicable.
As to ISSUE THREE, the State contends that the damages allotted in this case are so excessive as to be contrary to law because the facts show nothing to support a verdict of such magnitude.
Daley asserts that the evidence is clearly adequate to support the jury verdict which is reasonable in view of the uncontroverted evidence.
ISSUE ONE--It is our opinion that the State is not immune from liability for damages arising out of the negligent operation of its slope mower along a State highway.
This case was argued on March 8, 1972, but our decision was judiciously postponed until the Indiana Supreme Court handed down its decision in the pending cases of Campbell v. State and Knotts v. State (consolidated) (Ind.1972), 284 N.E.2d 733, which directly relate to Issue One and unquestionably govern our decision in this case. Campbell and Knotts were shortly followed by State v. Turner (Ind.App.1972), 286 N.E.2d 697, which also discussed the doctrine of sovereign immunity for tort liability of the State in the area of maintenance and repair of State highways. There is no need for us to repeat or elaborate on the excellent treatment of this subject in those cases.
In Campbell and Knotts, Chief Justice Arterburn traces the history of the judicially created doctrine of sovereign immunity in Indiana from the first limitation placed on the doctrine in 1889 to its present eviscerated state, and decided the remains of the doctrine insofar as it granted the State of Indiana immunity from tort liability arising out of maintenance and repair of public highways, should be afforded a decent burial. His graveside words were:
'Finding no basis for the continuation of the doctrine of sovereign immunity as applicable to the state any more than it is applicable to municipal corporations and counties, we hold that such a defense by the state is not available to any greater extent than it is now available to municipal corporations and counties of this state.'
The facts of the case before us do not distinguish it in any significant way from Campbell and Knotts and Turner. The negligence in Campbell was failing to paint double lines on a state highway in the appropriate no passing zone and failure to erect no passing signs. In Knotts the negligence consisted of failure to repair a crosswalk. Turner differed only slightly in that the negligent act complained of involved negligent operation of a state highway truck.
Our conclusion must be as Judge Lybrook wisely commented in Turner:
'As a result of Campbell, supra, the State of Indiana is no longer immune from liability for damages caused by its negligence in situations such as the case at bar.'
ISSUE TWO--It is our opinion that the trial court did not err in entering judgment against the State for an amount in excess of the policy limits of the applicable liability insurance policy.
We need tarry only momentarily to dispose of the State's argument that the Insurance Statute prohibits recovery in excess of the policy limits of $15,000. The Turner decision, with which we agree, specifically disposed of this exact question with this perceptive observation:
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