DENVER BUICK, INC., а Colorado corporation, Appellant (Plaintiff below), v. Minnie C. PEARSON, County Clerk, Albany County, Wyoming, Appellee (Dеfendant below).
No. 3799
Supreme Court of Wyoming
Feb. 27, 1970
Alfred M. Pence, of Pence & Millett, Laramie, for appellee.
Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.
Mr. Justice McINTYRE delivered the opinion of the court.
This is a suit to recover damages sustained as a result of defendant‘s alleged negligencе in issuance of a Wyoming certificate of title for a stolen car, which plaintiff bought. The lawful owner later reclaimed the car from plaintiff.
Defendant, Minnie C. Pearson, filed a motion for summary judgment and plaintiff, Denver Buick, Inc., filed a cross-motion for summary judgment. Summary judgment was rendered in favor of defendant and plaintiff has appealed.
The sole issue in the case, insofar as our review of the action of the trial court is сoncerned, is whether the county clerk and her deputy are cloaked with governmental immunity in the perfоrmance of a statutory duty such as the issuance of a Wyoming certificate of title. If they are, then summary judgment for defendant was proper. If they do not come under governmental immunity in the performance of such a duty, then there should have been a trial on the issue of negligence.
In our opinion, authorities suppоrt the conclusion that the issuance of a certificate of title to a motor vehicle by a cоunty clerk, pursuant to
The cоunty clerk is a public officer. In that capacity such officer performs statutory duties of a governmental nature. The specific duty performed in the instance we are concerned with was governmentаl as distinguished from ministerial.
When duties are imposed upon a public officer, such аs a county clerk, by law rather than by some appointing power, such duties are usually governmental and not ministerial. Wolf v. Fidelity & Deposit Co. of Maryland, 174 Kan. 402, 256 P.2d 862, 865 (1953). See also 14 Am.Jur., Counties § 50, p. 217; and 62 C.J.S. Municipal Corporations § 545, p. 1008.
Having concluded, as we do cоnclude, that the performance of the statutory duty of issuing a certificate of title by a county clerk is а governmental function as distinguished from one that is ministerial, we need to pass upon the question of whether а county clerk, in the performance of such a duty, is entitled to the sovereign immunity of the state, from liability for alleged negligent acts.
The general rule is that, in the absence of a statute imposing liability, an officer is nоt liable for defaults or negligent acts of himself or deputies in the performance of governmental duties imposed by statute. Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309, 312 (1946). And see Wolf, 174 Kan. 402, 256 P.2d 862, 865; and 43 Am.Jur., Public Officers, § 273, p. 85.
In the Price case, our court approved, on the theory of immunity, dismissal of an action for аlleged negligent operation of a snowplow. The action was against the State Highway Commission, its superintendent, and an employee of the commission.
Later, in Osborn v. Lawson, Wyo., 374 P.2d 201, 203 (1962), we pointed out that the action against the snowplow driver, in Price, should not have been dismissed if the driver was not immune the same as the highway commission. We then reaffirmed thаt the driver was in fact immune to the same extent as the commission. We also said the operation of snowplows was a duty performed for the public and held such operation a governmental duty rather than ministerial.
In Osborn (p. 205), we indicated it did not matter whether we considered the driver of a snowplow an officer or an employee. We said the highway commission itself had immunity; and it would be highly anomalous to hold the operator not immune when he followed instructions of the commission. The conclusion reached in Osborn and now appliеd in the case presently dealt with is that, if the branch of state government involved is immune, the person performing the governmental act for such branch of state government is also immune. See Packard v. Voltz, 94 Iowa 277, 62 N.W. 757, 758 (1895).
For what it may be worth, in the evеnt members of the legislature or those who have to do with recommending legislation are interested in the matter, we think we should repeat what was said in Bondurant v. Board of Trustees of Memorial Hospital, Wyo., 354 P.2d 219, 222 (1960), about in-
This court said in the Bondurant opinion that it is aware of such inequities. The court also said it was cognizant of the fact that such inequitiеs tend to be more numerous with increasing governmental activities. Nevertheless, as pointed out in Bondurant, the rule by whiсh state agencies are immune from tort liability while acting in a governmental capacity is so well established in this state that any change must be effected by the legislature rather than by the courts.
Affirmed.
Mr. Justice McEWAN, concurring.
I concur in the result but wish tо make it clear that I do so only because the appellant made no contention that suit against a county clerk for negligent issuance of a motor vehicle certificate of title has been authorized by law.