State v. Turner

• Decision Date: 31 August 1972
• Docket Number: No. 172A47,172A47
• Citation: State v. Turner, 286 N.E.2d 697, 153 Ind.App. 197 (Ind. App. 1972)
• Parties: STATE of Indiana et al., Appellants, v. Herschel TURNER, Appellee.
• Court: Indiana Appellate Court

Page 697

286 N.E.2d 697

153 Ind.App. 197

STATE of Indiana et al., Appellants, v. Herschel TURNER, Appellee.

No. 172A47.

Court of Appeals of Indiana, First District.

Aug. 31, 1972.

Rehearing Denied Sept. 22, 1972.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellants.

Clelland J. Hanner, Rockville, Jerdie D. Lewis, Terre Haute, for appellee.

LYBROOK, Judge.

This appeal arises from a negligence action, wherein appellee was awarded a jury verdict for $150,000.00, as damages for personal injuries sustained when the vehicle he was driving collided with a State Highway truck.

Appellants' Motion to Correct Errors alleges that the trial court erred in entering judgment against the State for three reasons; (1) The State is immune from liability for damages arising from governmental functions, (2) The judgment violates Article 4, § 24 and Article 10, § 3 of the Constitution of the State of Indiana, and (3) In the alternative, the State's liability is limited to the policy limits of the applicable liability insurance policy, by IC 1971, 27--7--4--2; Ind.Ann.Stat. § 39--1819 (Burns 1965).

On October 5, 1967, appellant Clawson was driving an empty dump truck as an employee of the appellant Indiana State Highway Commission, an agent of the State of Indiana. While traveling on U.S. Highway 41 in Parke County he collided with a vehicle operated by appellee Turner, who sustained severe personal injuries as the proximate result of the collision.

Appellants' first issue concerns the Doctrine of Sovereign Immunity. Since this case was argued, ¹ the Indiana Supreme Court decided appellants' first contention in Campbell v. State (1972), Ind., 284 N.E.2d 733. The Court reviewed the leading cases dealing with the doctrine, pointing out its gradual erosion. Flowers v. Board of Commissioners (1960), 240 Ind. 668, 168 N.E.2d 224, abolished the defense of immunity for counties engaged in proprietary functions, Brinkman v. City of Indianapolis (1967), 141 Ind.App. 662, 231 N.E.2d 169, abrogated the doctrine as it applied to cities, Klepinger v. Board of Commissioners (1968), 143 Ind.App. 155, 239 N.E.2d 160, (Transfer denied) removed the immunity of counties by abolishing the governmental-proprietary distinction, and Perkins v. State (1969), 252 Ind. 549, 251 [153 Ind.App. 199] N.E.2d 30, held that the State was liable for negligently causing injuries while acting in a proprietary capacity.

Campbell v. State, supra, swept away the last vestige of this outmoded common law doctrine, by removing the immunity of the State while performing a governmental function. The Court concluded by saying:

'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.'

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. Therefore, appellants' first contention fails.

Appellants' next proposition concerns Article 4, § 24, Constitution of Indiana, which reads:

'Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.'

Appellants point out that under the above provision the Legislature may provide for suit against the State but that in fact our Legislature has not done so.

Appellants' second contention was concisely dealt with in Perkins v. State, supra, wherein the Court said:

'There is no plain, unequivocal statement in the Constitution that the State of Indiana shall be immune against suits imposing a liability for damages; only an inference might be drawn from the above section. As we read this section it occurs to us that the framers of the Constitution assumed that at common law the State was immune from suit and authorized the legislature to modify such liability to the extent it may see fit, providing that no private acts or special acts were passed for the benefit of some individual.'

Appellants contend that the trial court's entry of judgment against the State also violates Article 10, § 3 of our State Constitution which states that: 'No money shall be drawn from the Treasury, but in pursuance of appropriations made by law.' We are not immediately concerned with the manner of enforcing this judgment, but it is well settled that this court, like the other courts of this State, possesses an array of inherent powers sufficient to enforce its final judgments. Article 1, § 12 of the State Constitution provides:

'All courts shall be open; and every man, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.'

Appellants finally contend that the trial court erred in entering judgment against the State and its agency in the full amount of the verdict since the same was in excess of the limits of their liability insurance policy and violated the express statutory provisions of IC 1971, 27--7--4--2; Ind.Ann.Stat. 39--1819 (Burns 1965 Replacement). The applicable portion of this statute reads as follows:

'The state, or any municipal corporation thereof, is hereby empowered to purchase policies of insurance insuring the officers, appointees, agents and employees of the state or municipal corporation against loss or damage because of the liability imposed by law upon such officers, appointees, agents and employees for loss or damage resulting from bodily injury to, or death of, or property damage sustained by, any person or persons, caused by accident and arising out of the ownership, maintenance, hire, or use of any motor vehicle owned, by the state or such municipal corporation, and any real or other personal property whatsoever, owned, hired, or used by the state...