Stokes v. Kemper County Bd. of Sup'rs

• Decision Date: 06 March 1997
• Docket Number: No. 94-CA-00949-SCT,94-CA-00949-SCT
• Parties: James C. STOKES v. KEMPER COUNTY BOARD OF SUPERVISORS and James Wilson.
• Court: Mississippi Supreme Court

Page 391

691 So.2d 391

James C. STOKES v. KEMPER COUNTY BOARD OF SUPERVISORS and James Wilson.

No. 94-CA-00949-SCT.

Supreme Court of Mississippi.

March 6, 1997.

Christopher D. Hemphill, Colom & Colom, Columbus, for Appellant.

Henry Palmer, Palmer Wright & Williamson, Meridian, for Appellee.

EN BANC.

PRATHER, Presiding Justice, for the Court.

INTRODUCTION

The present case calls upon this Court to apply the law relating to sovereign immunity and to the immunity of public employees acting within the course and scope of their duties as said law existed on December 10, 1991. The present case involves a suit against James Wilson, an employee of Kemper County, and the Kemper County Board of Supervisors for an auto accident which, the plaintiff contends, was caused by Wilson's negligent driving.

Although these issues have been of some controversy in this Court and the state Legislature, it is clear that, in 1991, legislative sovereign immunity served to bar the plaintiff's action against the Kemper County Board of Supervisors in the present case. However, it is equally clear that the Wilson is not personally immune from liability in the present case based on either the doctrines of sovereign immunity or public official immunity. Accordingly, this Court affirms the ruling of the trial court in dismissing the suit against the Kemper County Board of Supervisors, but reverses the ruling dismissing the action against James Wilson in his individual capacity and remands for trial solely with regard to the cause of action against Wilson.

STATEMENT OF THE FACTS AND CASE

On December 10, 1991, James C. Stokes ("Stokes") was injured in a collision between his vehicle and a truck owned by Kemper County which was driven by James G. Wilson ("Wilson"). Stokes contends that the collision occurred when Wilson negligently drove his truck into the path of Stokes' vehicle. The parties agree that Wilson was an employee of Kemper County acting within the course and scope of his duties at the time of the accident. Stokes filed suit against Wilson personally and against the Kemper County Board of Supervisors, but his case was dismissed by a summary judgment in favor of the defendants on August 24, 1994, based on a ruling that the case was barred by sovereign immunity. Stokes timely appealed from said ruling.

I. Is the Kemper County Board of Supervisors protected by the doctrine of sovereign immunity from a negligence action that arose on December 10, 1991?

The Kemper County Board of Supervisors is clearly protected by the doctrine of sovereign immunity from a negligence action arising on December 10, 1991. This Court abolished judicial sovereign immunity in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), but sovereign immunity was replaced by a legislative immunity set forth in Miss.Code Ann. § 11-46-6, which statute purported to continue sovereign immunity as it existed prior to Pruett. In Part I of Presley v. Miss. State Highway Comm., 608 So.2d 1288 (Miss.1992), this Court held § 11-46-6 to be unconstitutional in light of the fact that it purported to revive law by reference, but a plurality of four justices held in Part II that the holding applied only prospectively. On September 16, 1992, the state Legislature convened a special session and enacted a statute which had the same effect as § 11-46-6, but without the constitutionally offensive provisions regarding the incorporation of law by reference.

In Churchill v. Pearl River Basin Development District, 619 So.2d 900 (Miss.1993), this Court held that, in light of the fact that a mere plurality of this Court in Presley had held that the statute applied only prospectively, the holding in Part II therefore had no precedential value. In Morgan v. City of Ruleville, 627 So.2d 275 (Miss.1993), this Court reaffirmed that Part I of Presley was the only part of said opinion with precedential value, but emphasized that said fact served as no basis for applying Part I of Presley retroactively. Thus, the end result in Morgan was that this Court noted that nothing in Presley served to hold legislative sovereign immunity unconstitutional prior to the Presley holding. In Robinson v. Stewart, 655 So.2d 866 (Miss.1995), this Court removed any doubt regarding the retroactive application of Presley, holding that:

What observers should note is our consistency in refusing to apply Presley retroactively, as opposed to the means in which we achieved our end. What we have stated indirectly we now state directly. Presley has no retroactive application.

In light of this unambiguous holding by a majority of this Court, Stokes' argument that this Court should decide on a case-by-case basis whether the Presley holding should apply retroactively is clearly without merit.

It is somewhat curious that Stokes elected to sue the Board of Supervisors in the present case. A member of the Board of Supervisors was not driving the truck in question at the time of the accident, and it is clear that Stokes is seeking to sue the county under general respondent superior law based on the fact that the driver of the truck in question was a county employee driving a county vehicle. Indeed, Stokes' petition contains no allegations of negligence on the part of the Board of Supervisors, but merely states that Wilson negligently failed to yield the right of way and that Wilson's negligence "is imputed to his employer, Kemper County, Mississippi."

It seems likely that Stokes sued the Board of Supervisors rather than the county itself in order to have this case decided under the case law applicable to public official immunity rather than the harsher sovereign immunity case law. It is clear, however, that the present case does not involve any actions by the Board of Supervisors, and this case is properly considered to be an attempt to sue the county itself.

Kemper correctly states that this Court should not apply the distinction between governmental and proprietary functions applicable to municipalities in the present case, noting that:

the Kemper County Board of Supervisors qualifies as a state subdivision, which permits it to escape from the governmental-proprietary distinction applied to municipalities.

This issue is complicated by this Court's misstatement in dicta in Winters v. Lumley, 557 So.2d 1175, 1177 (Miss.1989), wherein this Court stated that:

As stated, the Board of Supervisors was sued in its official capacity, which also was tantamount to a suit against Washington County. The immunity of Washington County rests upon whether the function of cleaning the highway was a governmental or proprietary function.

Contrary to this statement in Winters, Kemper County is correct in stating that the proprietary/governmental distinction does not apply to counties, but only to municipalities. This Court corrects this misstatement in Winters herewith. This Court recently noted in Mississippi Transportation Commission v. Rector, 663 So.2d 601 (Miss.1995) that:

Rector tries to argue that if Presley is prospective then MTC is still not immune from suit because it does not have immunity for proprietary acts. This argument fails since the distinction between governmental and proprietary functions are applied only to municipalities and not to the state itself. See Strait v. Pat Harrison Waterway Dist., 523 So.2d 36, 40 (Miss.1988).

Id. at 602.

The fact that Kemper County enjoyed the protection of sovereign immunity in 1991 or the alleged tort in question is illustrated by the case of McGoldrick Oil Company v. Greene County, 446 So.2d 594 (Miss.1984), which contained a fact pattern similar to that in the present case. In McGoldrick, the plaintiff's mobile oil rig collided with a dump truck owned and operated by Greene County and was totally destroyed in the collision. The plaintiff alleged that the collision was caused by the negligent operation of Greene County's dump truck, and the circuit court in McGoldrick granted summary judgment to Greene County on the basis of sovereign immunity. McGoldrick appealed to this Court, but his sole assertion on appeal was that the doctrine of sovereign immunity was unconstitutional. McGoldrick, 446 So.2d at 595. Thus, the appellant in that case did not contest that sovereign immunity protected Greene County for an alleged tort identical to the one in the present case, but merely argued that the doctrine itself was unconstitutional.

In summary, it is clear that, in 1991, sovereign immunity protected Kemper County against the present lawsuit and that the circuit judge was correct in granting summary judgment in favor of the Board of Supervisors. The summary judgment ruling in favor of Kemper County is therefore affirmed.

II. Is James G. (Greg) Wilson, an employee of Kemper County, protected by the doctrine of sovereign immunity from a negligence action that arose on December 10, 1991 ?

Although the trial judge correctly ruled that the doctrine of sovereign immunity served to protect Kemper Count in the present case, it is clear that the trial judge was in error in ruling that sovereign immunity served to provide Wilson with personal immunity from the suit in question. Sovereign immunity as it existed in 1991 protected the State and municipalities, but not individuals, against liability. In response to this proposition, Kemper cites Miss.Code Ann. § 11-46-7(2), which provides that:

An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee's duties.

This is indeed the correct state of the law today, but the aforementioned statutory provision was passed as part of the Legislature's 1993 sovereign immunity legislation and represents a departure from the law as it existed in 1991.

The only immunity offered to individual...