Thomas v. Hilburn, 91-CA-01238-SCT

• Decision Date: 27 April 1995
• Docket Number: No. 91-CA-01238-SCT,91-CA-01238-SCT
• Citation: 654 So.2d 898
• Parties: Charlie L. THOMAS, Jr. and the City of Jackson, Mississippi v. L. Breland HILBURN.
• Court: Mississippi Supreme Court

Page 898

654 So.2d 898

Charlie L. THOMAS, Jr. and the City of Jackson, Mississippi v. L. Breland HILBURN.

No. 91-CA-01238-SCT.

Supreme Court of Mississippi.

April 27, 1995.

Terry Wallace, Jackson, for appellant.

Aubrey E. Nichols, Gholson Hicks Nichols & Ward, Columbus, for appellee.

Before HAWKINS, C.J., and McRAE and JAMES L. ROBERTS, Jr., JJ.

McRAE, Justice, for the Court:

In a wrongful death action brought against the City of Jackson, L. Breland Hilburn was awarded damages in the amount of $300,000.00 by a jury of the Hinds County Circuit Court on October 14, 1991 for the loss of his father, L.B. Hilburn, who died on November 1, 1987, as a result of injuries sustained when a City of Jackson tow truck driven by Charlie Thomas collided with his car. The City of Jackson contends that the circuit court erred in ruling that the City's operation of a garage and wrecker service is a proprietary function and thus not immune from tort liability; that the circuit court abused its discretion in refusing to grant a continuance sought by the City; and finally, that the jury's award of damages was excessive in light of the evidence presented. Finding that the City's operation of a service garage and towing service for its vehicles is a proprietary function and that the verdict was not excessive, we affirm the judgment below.

I.

On October 26, 1987, a City of Jackson tow truck driven by Charlie Thomas collided with L.B. Hilburn's car at the intersection of Bailey Avenue and Maple Street in Jackson, Mississippi. ¹ Seventy-five year old Hilburn sustained injuries to his chest, where he had hit the steering wheel, as well as facial cuts and bruises and hematomas on his hand and lower leg. He was admitted to the Mississippi Baptist Medical Center for observation and discharged on October 28, 1987. Dr. Holland M. Addison, the original treating physician, examined Hilburn again on October 30. On November 1, 1987, Hilburn collapsed at home. He was transported to the Baptist Hospital, where efforts to revive him were unsuccessful. The autopsy indicated that Hilburn died as a result of the blow to the chest from the steering wheel which "resulted in fatal aortic tear on a well-healed, old, dissecting aortic aneurysm."

At the time of the accident, Charlie Thomas was employed by the City of Jackson as a mechanics' helper and tow truck driver for the City of Jackson Public Safety Garage. Just prior to the accident, Thomas and the tow truck had been dispatched to pull a police car onto the pavement from where it had become stuck in the grass. In his deposition, ² Thomas responded affirmatively to the questions, "So, you were asked to go pick up a police car and bring it back to the station to work on it?" and "And you had the police vehicle behind your wrecker at this time?" However, neither the testimony of his supervisor, Officer Jimmie Jones, the accident report, nor photographs taken at the accident scene indicate that the tow truck was pulling the police car at the time of the collision.

Thomas stated that just prior to the accident, he had made a detour to the Precinct 3 station on personal business. Initially, he indicated that he had stopped to talk with someone to get his opinion on a personal matter. He then stated that that stop was made on another date; on the day of the collision, he had stopped at Precinct 3 to use the restroom.

L. Breland Hilburn filed this wrongful death action against the City and Thomas, its employee, on November 6, 1989 in the Circuit Court of Smith County. He alleged that Thomas' negligence was the sole proximate cause of the accident which ultimately claimed his father's life. In response to the City's motion and pursuant to Miss.Code Ann. Sec. 11-45-2 (1972), requiring initiation of suit against a municipality in the county in which it is located, the Smith County Circuit Court ordered the case transferred to Hinds County.

The City raised the defense of sovereign immunity, asserting that at the time of the accident, the City and its employee were engaged in a governmental function and further, that since the City had not purchased liability insurance, it had not waived its immunity. Hilburn moved for partial summary judgment on the issue of the City's sovereign immunity defense. Finding that the City's operation of its own garage and towing service is a proprietary function, and not a governmental function, and further, that the legislative scheme of sovereign immunity was void and unconstitutional as it existed at the time of the accident, the special circuit court judge granted Hilburn's motion. This Court denied the City's motion for interlocutory appeal on the circuit court's order.

After hearing the evidence presented on October 14, 1991, the jury found in favor of Hilburn and awarded $300,000.00 in damages. The City of Jackson and Thomas filed a Motion for J.N.O.V. or in the Alternative for Remittitur or Alternatively for a New Trial. The motion was denied by the special circuit court judge.

II.

The City of Jackson first contends that the special circuit court judge, in granting Hilburn's motion for summary judgment, erred in finding that the City's operation of its own maintenance garage and towing service was a proprietary function and thus not subject to the protection afforded by governmental immunity. Relying on White v. City of Tupelo, 462 So.2d 707 (Miss.1984), the City argues that its duty to maintain its fire and police vehicles makes the operation of a city garage and towing service a governmental function. We disagree.

A city or municipality is immune from suit when the injury stems from the performance of a governmental function; however, the city does not enjoy such immunity when it is responsible for an injury arising from the performance of a proprietary function. Morgan v. City of Ruleville, 627 So.2d 275, 279 (Miss.1993); Webb v. Jackson, 583 So.2d 946, 952 (Miss.1991). As we noted in Morgan, the line between governmental and proprietary functions has been best drawn in Anderson v. Jackson Municipal Airport Authority, 419 So.2d 1010 (Miss.1982). In Anderson, the Court explained:

The classifications are broad, very general, and the line between the two is quite frequently difficult to define. Nevertheless, there are certain activities which courts choose to call "governmental" for which no liability is imposed for wrongful or tortious conduct. These are activities or services which a municipality is required by state law to engage in and perform.

On the other hand, there are activities in which a municipal corporation engages, not required or imposed upon it by law, about which it is free to perform or not. Such activities the courts call "proprietary or corporate." This Court has judicially construed other permissible "public and governmental" activities to be "corporate or proprietary."

419 So.2d at 1014-1015 (emphasis added). The Anderson Court further enumerated those municipal activities which have been determined to be governmental as distinguished from proprietary functions. ³ In holding that the operation of a swimming pool was a proprietary function, the Court in Morgan resolved the dichotomy between governmental and proprietary functions by stating simply, "[p]roprietary activities are those which, while beneficial to the community and very important, are not vital to a City's functioning. (Zoo, football stadium)." Id. at 279.

In those few jurisdictions where courts have been asked to determine whether the operation of a garage and/or towing service for city vehicles is a governmental or proprietary function, the general rule is that it is a proprietary function:

It has been quite generally held in the cases which have arisen that the operation of a garage for the repair and maintenance of municipal vehicles is, regardless of the function the vehicles themselves may be engaged in, a proprietary function, such as will render the municipal corporation liable for injuries resulting from the operation, maintenance, or repair of vehicles by the employees of the garage.

Annotation, Operation of Garage for Maintenance and Repair of Municipal Vehicles as Governmental Function, 26 ALR2d 944, 945

(1952) (emphasis added). See generally, Dallas v. City of St. Louis, 338 S.W.2d 39, 41 (Mo.1960) (operation of garage for maintenance and repair of garbage trucks a proprietary function despite settled Missouri law that collection of garbage is a governmental function); Oklahoma City v. Foster, 118 Okla. 120, 247 P. 80 (1926) (operation of garage used to repair police cars and motorcycles "was in no manner governmental in its character, but was wholly corporate."); City of Houston v. Schilling, 150 Tex. 387, 392, 240 S.W.2d 1010, 1013 (1951) (although collection of garbage a governmental function, operation of garage to repair garbage trucks "not a governmental function nor a necessary element of a governmental function so as to relieve the city from liability for the negligent acts of those employed in such garage.").

While no state law imposes a duty upon the City to operate its own garage or towing service and the operation of a garage and/or towing service is more akin to those activities we acknowledged in Morgan and Anderson as being proprietary rather than governmental functions, the City asserts that these are governmental functions. It relies on White v. City of Tupelo, 462 So.2d 707 (Miss.1984), and Jackson v. Smith, 309 So.2d 520 (Miss.1975), to support its argument that the "retrieval of disabled vehicles for maintenance " is a governmental function. In the case sub judice, Thomas, a city garage employee, was returning to the garage in his tow truck after having pulled a police car out of the mud and back onto hard pavement. The record provides no evidence that Thomas was towing the police car at the time of the accident or, as the City suggests in its brief, that the vehicle was being retrieved for maintenance. Even if it were, it would be...