O'Dell Ex Rel. O'Dell v. School District of Independence

521 S.W.2d 403

• Court: Supreme Court of Missouri
• Decided: March 10, 1975
• Docket: 57474
• Status: Published

Opinions

DONNELLY, Chief Justice.

This is an action for damages involving the governmental immunity rule.

Plaintiffs’ petition against the School District of Independence, Missouri, alleges that on February 3, 1971, Harry O’Dell, Jr., while a student at William Chrisman Senior High School, and while participating in wrestling practice, was injured when a physical education coach applied an illegal wrestling hold on him.

Plaintiffs’ petition was dismissed by the trial court and plaintiffs appealed.

In their brief, plaintiffs come directly to the point and “assign as error the ruling of this court that the doctrine of governmental immunity from the consequences of negligence applies to school districts and other units of government, thereby depriving them and other injured persons of the basic right to recover damages for negligence from the state and its subdivisions.”

On September 10, 1973, in Watson v. Kansas City, 499 S.W.2d 515 (Mo. banc 1973), the doctrine of governmental immunity came under oblique scrutiny in this Court. In Watson, Judge Finch filed a concurring opinion in which he again expressed his belief “that in an appropriate case we should reexamine the doctrine of governmental immunity.” On March 14, 1974, the instant case was recognized as an appropriate case for such reexamination and it was transferred from Division One of this Court to the Court en Banc on the Court’s own motion. On July 22, 1974, Rennie et al. v. Belleview School District et al., 521 S.W.2d 423, was transferred from Division Two of this Court to the Court en Banc. Both cases were heard September 24, 1974, by the Court en Banc.

The two most recent frontal attacks in this Court on the doctrine of governmental immunity were made in Smith v. Consolidated School District No. 2, 408 S.W.2d 50 (Mo. banc 1966), and Payne v. County of Jackson, 484 S.W.2d 483 (Mo.1972). In Smith, this Court declined to abolish the doctrine, and said (1. c. 54):

.“For more than a century the courts of Missouri have uniformly held generally that political subdivisions of the state are not subject to liability in suits for negligence. Reardon v. St. Louis County, 36 Mo. 555; Clark v. Adair County, 79 Mo. 536; State ex rel. Jordon v. Haynes, 72 Mo. 377; Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306; Lamar v. Bolivar Special Road District, Mo.Sup., 201 S.W. 890; Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168; Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063; Cullor v. Jackson Township, Putnam County, Mo. Sup., 249 S.W.2d 393. School districts are political subdivisions of the state. Art. 10, § 15, Constitution of Missouri, V.A.M.S., § 70.210, RSMo 1959, V.A.M. S. As such, school districts have long been held immune from liability in tort for negligence. Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050; Krueger v. Board of Education of City of St. Louis (Banc), 310 Mo. 239, 274 S.W. 811, 40 A.L.R. 1086; Dick v. Board of Education of City of St. Louis, Mo.Sup., 238 S.W. 1073. Our holdings have been so uniform that nothing is to be gained by restating the reasons for and against the doctrine of sovereign immunity.”

In Payne, the Court relying primarily on Cullor v. Jackson Township, Putnam County, 249 S.W.2d 393 (Mo.1952), Fette v. City of St. Louis, 366 S.W.2d 446 (Mo.1963), and the Smith case, supra, declined to abolish the doctrine, and said (484 S.W.2d 483, 486):

“We are not unaware that the doctrine of sovereign immunity continues to be under bitter assault and violent attack by some writers and law review commentators. We also recognize that in some jurisdictions the immunity doctrine has been abrogated in whole or part by courts or legislatures. In 18 jurisdictions which have judicially undertaken to weaken or abolish such immunity a quick retreat was thereafter taken by several of the courts and in seven of these jurisdictions the legislatures enacted comprehensive legislation. 56 Iowa Law Review 930-993 (1971).

“Plaintiffs say the doctrine is ‘illogical and unjust doctrine, universally deplored . . . an aged survivor of Legal History, born in antiquity and kept viable only by stare decisis and inertia’ and that the trend since our decision in Cultor has been for the courts to take the lead in restricting or wholly abolishing the doctrine. We believe that instant plaintiffs overlook the reasons for the doctrine that were again spelled out in Cullor and Smith by this court. Plaintiffs’ contentions also fail to consider that in the jurisdictions referred to a careful state by state analysis is necessary to determine the extent of abrogation, including: the governmental entitites affected; the nature and meaning of exceptions to liabili-ty, the impact of new law on prior statutes and decisions, the retroactive effect of new law; and, subsequent court decisions and legislative acts in such jurisdictions.

"As we observed in the Fette and Smith cases, the abolition of the doctrine of sovereign immunity opens up a Pan-dor’s box of complex and possible chaotic problems that we, in the exercise of judicial restraint, believe the legislature to be better equipped to solve than the judiciary.”

It is generally agreed that the first diminution in stature of the doctrine of sovereign immunity came in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), in which the Court abolished sovereign immunity as to municipalities in Florida, declaring that “[T]o continue to endow this type of organization with sovereign divinity appears to us to predicate the law of the Twentieth Century upon an Eighteenth Century anachronism.” Other state courts proceeded to follow the leadership given by Florida. Most, if not all, are noted in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). Although our own research does not fully agree with the categorization of jurisdictions in Ayala, the jurisdictions listed therein purporting to follow the Hargrove case are generally noteworthy, in our opinion, for at least three reasons: (1) the zeal with which each strives to surpass the eloquence of its predecessors in damning the doctrine of sovereign immunity; (2) their unquestioning assumption that “the historical roots of the governmental immunity doctrine are found in the English case of Russell v. Men of Devon, 2 T.R. 667, 100 Eng.Rep. 359 (1778),” Ayala, supra, 1. c. 879; and (3) their reasoning that “the doctrine of governmental immunity — judicially imposed — may be judicially terminated.” Ayala, supra, 1. c. 885.

We believe it would serve no useful or proper purpose for us to question the reasoning employed by the opinions cited in Ayala, supra. It is sufficient to say that the views they, and the Ayala opinion, express conflict with the public policy of Missouri, as articulated in our Constitution, in our statutory law, and in our judicial decisions.

The common law of England was adopted in Missouri by an act of the Third Territorial Assembly on January 19, 1816. The Act read, in part, as follows:

“1. The common law of England, which is of a general nature, and all statutes made by the British parliament in aid of or to supply the defects of the said common law, made prior to the fourth year of James the First, and of a general nature, and not local to that kingdom, which said common law and statutes are not contrary to the laws of this territory, and not repugnant to, nor inconsistent with the constitution and laws of the United States shall be the rule of decision in this territory, until altered or repealed by the legislature, any law, usage, or custom to the contrary notwithstanding, . . . .” (Emphasis supplied.)

In 1825, the italicized language, supra, was deleted by the legislature (RSMo 1825, p. 491), and the remainder has been carried forward to the present. It is now a part of § 1.010, RSMo 1969, V.A.M.S. “When Missouri came into the Union of the states under its first Constitution, it brought with it the common law which it had adopted as a territory in 1816.” Elks Investment Co. v. Jones, 187 S.W. 71, 74 (Mo.1916). “The statute by which we adopted the common law of England specifically includes only the common law in force prior to the fourth year of the reign of James the First, * * * which was the year 1607, * * Osborne v. Purdome, 244 S.W. 2d 1005, 1011 (Mo. banc 1951).

The first question presented is: what was the “general nature” of the common law of England with reference to sovereign immunity prior to the year 1607? We are indebted to the Supreme Court of Wyoming, and its research reflected in Maffei v. Incorporated Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808, 810, 811 (1959) for the answer to the question. The members of the Court in Wyoming were inhibited by a statute similar in wording to the 1816 version of Missouri’s § 1.-010, supra. The Wyoming court noted the Hargrove case, supra, and said:

“We interpret these expressions as meaning the Florida court considered the doctrine of municipal immunity originated by virtue of pronouncement made in Russell v. The Men of Devon, 2 T.R. 667, 100 Eng.Rep.R. 359. We believe that assumption is not justified because of what was said in the opinion in the Devon case, which was an action in which an individual sought recovery against the inhabitants of a county for injuries sustained because of alleged negligence of the county. In the major opinion at 2 T.R. 673, 100 Eng.Rep.R. 362 it was said:

“ ‘ * * * there is no law or reason for supporting the action; and there is a precedent against it in Brooke: though even without that authority I should be of opinion that this action cannot be maintained.’ (Emphasis supplied.)

“To the same effect the concurring opinion said at 2 T.R. 673, 100 Eng.Rep.R. 363:

“ ‘ * * * However there is no foundation on which this action can be supported; and if it had been intended, the Legislature would have interfered and given a remedy, as they did in the case of hue and cry. Thus this case stands on principle: but I think the case cited front Brooke’s Abridgment is a direct authority to shew that no such action could be maintained; and the reason of that case is a good one, namely, because the action must be brought against the public.’ (Emphasis supplied.)

“While we have been unable to find the full report of the case abridged by Brooke, the language used by the opinion writers in the Devon case clearly indicates that antecedent to Russell v. The Men of Devon, supra, a previous judicial pronouncement had recognized the doctrine of municipal immunity. We do find, however, in II Holdsworth’s History of English Law, 3d ed., p. 545, a reference stating the author of Brooke’s Abridgements died in 1558. So it is clear the early decision Brooke abridged was made before that year.”

We have done additional research and have concluded (1) that prior to Sir Robert Brooke’s La Graunde Abridgement in 1573, the “general nature” of the common law of England was that an action could not be maintained for negligence against the public; and (2) that this principle of the common law was applied by the judges in Russell v. The Men of Devon in 1788 in an action upon the case against the men dwelling in the county of Devon. We cannot agree with the proposition that the doctrine of sovereign immunity originated with Men of Devon.

We believe and hold that the common law adopted in Missouri when it came into the Union of states was that an action cannot be maintained for negligence against the public.

In Reardon v. St. Louis County, 36 Mo. 555, 562, 563 (1865), this Court, as did the court in Men of Devon, applied this principle of the common law and accepted the concept that entities, “created by the Legislature for purposes of public policy, are not responsible for the neglect of duties enjoined on them unless the action is given by the statute.” In Cochran v. Wilson, 287 Mo. 210, 223, 229 S.W. 1050, 1053, 1054 (1921), this Court applied the same concept to school districts, and classified them as “instrumentalities engaged in the performance of governmental functions, and hence subject to the same rules as to nonliability for negligence as other subdivisions of the State charged with the performance of like duties.” These, and other, opinions of this Court, in treating the question presented here, have consistently reflected what is said in Art. I, § 1 of our Constitution, V. A.M.S., by which the people of Missouri declared:

“That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.” (Emphasis supplied.)

The question then becomes: having determined that the common law adopted in Missouri when it came into the Union of states was, and has continued to be, that an action cannot be maintained for negligence against the public, (1) does this Court have the power to abrogate such doctrine; and (2) if so, should we do so?

It would seem arguable that, with the deletion in 1825 of the words “until altered or repealed by the legislature,” from the Act of 1816, supra, the legislature intended to give the courts some flexibility in our applications of what is now § 1.010. However, we need not, and should not, definitively answer that question in this case. It is enough to say that, if we have such power, we decline to assert it in this case involving so fundamental a doctrine as sovereign immunity.

Many of those who urge abolition of the doctrine of sovereign immunity attribute its origin to the theory that “the King can do no wrong,” and then proceed to discredit the doctrine by noting “the fact that the Revolutionary War was fought to abolish that ‘divine right of kings’ on which the theory is based.” Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 94 (1959). We consider such exhortations irrelevant. In Missouri, the people are sovereign. The immunity is theirs. By adoption of our Constitution, the people of Missouri assented to be governed and established the terms of the grant. They authorized the creation of governmental entities for the performance of tasks considered essential to their general welfare. In our view, in order that such entities remain viable, it must be recognized that the immunity of the sovereign people must pass to those governmental entities which serve the public interest. It is vigorously argued that allowing a cause of action against the state and its subdivisions would not injuriously affect their viability and their capacity to adequately and efficiently serve the public. We express no view on this question because we believe it is a question so fundamental as to require determination by the people or their representatives in the General Assembly.

There are other factors which suggest the exercise of judicial restraint in this case.

In Missouri, unlike most other states, we must recognize that the doctrine of sovereign immunity, as demonstrated above, is legislative-made (under § 1.010), and not court-made. This factor gives rise to judicial inhibitions not present when the law in question is court-made (Cf. Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969)). Historically, judges of this Court have exhibited much reluctance when urged to strike down legislative-made law unless it is found to violate the Constitution.

In 1959, the General Assembly enacted a statute (§ 71.185, RSMo 1969, V.A.M.S.) which deals with the liability of municipalities, and which reads as follows:

“1. Any municipality engaged in the exercise of governmental functions may carry liability insurance and pay the premiums therefor to insure such municipality and their employees against claims or causes of action for property damage or personal injuries, including death, caused while in the exercise of the governmental functions, and shall be liable as in other cases of torts for property damage and personal injuries including death suffered by third persons while the municipality is engaged in the exercise of the governmental functions to the extent of the insurance so carried.

“2. In all suits brought against the municipality for tort damages suffered by anyone while the municipality is engaged in the exercise of governmental functions, it shall be unlawful for the amount of insurance so carried to be shown in evidence, but the court shall be informed thereof and shall reduce any verdict rendered by a jury for an amount in excess of such insurance to the amount of the insurance coverage for the claim.” (Emphasis supplied.)

In 1969, the General Assembly enacted statutes (§ 105.800-105.850, Laws 1969), which extended the provisions of chapter 287, RSMo, V.A.M.S. (the workmen’s compensation law) to state employees. Section 105.850 reads as follows:

“Nothing in sections 105.800 to 105.850 shall ever be construed as acknowledging or creating any liability in tort or as incurring other obligations or duties except only the duty and obligation of complying with the provisions of chapter 287 RSMo.” (Emphasis supplied.)

In 1971, the General Assembly enacted a statute (§ 226.092, Laws 1971), which authorizes the state highway commission to provide liability insurance for employees, and which reads as follows:

“The state highway commission is authorized, when considered by it to be in the public interest, to acquire and to pay for, as part compensation to the employee involved, liability insurance covering the operation of state-owned vehicles involved in the performance of operations of the commission. The immunity in tort actions of the state and the state highway commission shall not be in any way affected by this section.” (Emphasis supplied.)

In 1973, the General Assembly enacted statutes (§ 34.260-34.275, Laws 1973), which directed the state purchasing agent to procure motor vehicle and marine liability insurance covering the operation of state-owned vehicles and vessels by state employees in the course of their employment. Section 34.275 reads as follows:

“Nothing in sections 34.260 to 34.275 is intended to nor shall it be construed as a waiver of sovereign immunity or th'e acknowledgment or creation of any liability on the part of the state for personal injury, death, or property damage.” (Emphasis supplied.)

We consider the continued reenactment of § 1.010, supra, and the enactments of 1959, 1969, 1971, and 1973, noted above, as positive statements by the General Assembly of its view that the general concept of sovereign immunity should be retained in Missouri. We cannot say, under these circumstances, as concluded in other states, that the Missouri legislature has remained idle and unresponsive to this very important issue.

In the face of all this, should this Court abrogate the doctrine of sovereign immunity generally or, in particular, as applied to school districts ? We think not.

Plaintiffs finally assert that the doctrine of sovereign immunity denies them equal protection of the law and due process, and that the “Tort Defense Fund” (§ 105.710, Laws 1973) denies them equal protection of the law. The “Tort Defense Fund” was created to provide a limited form of indemnification to certain state officers, employees, and members of the National Guard against judgments awarded against them.

We are of the opinion that plaintiffs’ assertion is without merit. Persons who seek recovery for negligence against a private tort-feasor and persons who seek recovery under the “Tort Defense Fund” are different classes of persons from those who seek recovery for negligence against the state or its political subdivisions. They are not similarly situated and they may be treated differently. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Krause v. State of Ohio, 31 Ohio St.2d 132, 285 N.E.2d 736 (Ohio 1972).

The judgment is affirmed.

HOLMAN, J., concurs. MORGAN, J., concurs in separate concurring opinion filed. HENLEY, J., concurs and concurs in separate concurring opinion of MORGAN, J- FINCH, J., dissents in separate dissenting opinion filed. SEILER and BARDGETT, JJ., dissent and concur in separate dissenting opinion of FINCH, J.