219 N.W.2d 760 | Neb. | 1974
Lead Opinion
This is an action for damages arising out of a conveyance of land by the plaintiff to the City of Lincoln, Nebraska. A demurrer of the city was sustained, and the plaintiff elected to stand on his amended petition. The plaintiff appeals from an order dismissing the action as to the city.
The amended petition alleged the city falsely represented to the plaintiff that it required 6 lots owned by him for the purpose of constructing an arterial street, known as the Northeast Radial, and a paving repair facility; that in fact the city did not intend to construct a paving repair facility upon the land to be obtained from him but intended to locate the proposed paving repair facility on other property; that the city wanted a part of his property for the purpose of exchanging it for other land owned by the Abel Investment Company and the
The amended petition alleged a transaction which had been induced by fraud. The plaintiff did not seek rescission but prayed for damages. Such an action against a city is barred by the Political Subdivisions Tort Claims Act.
The common law rule of governmental immunity has not been completely abrogated in Nebraska. Webber v. Andersen, 187 Neb. 9, 187 N. W. 2d 290. The Political Subdivisions Tort Claims Act limits the tort actions which may be brought against political subdivisions. § 23-2401, R. R. S. 1943; Webber v. Andersen, supra. It excludes actions for misrepresentation and deceit. § 23-2409 (5), R. R. S. 1943. See, also, Jones v. United States, 207 F. 2d 563; United States v. Neustadt, 366 U. S. 696, 81 S. Ct. 1294, 6 L. Ed. 2d 614.
The demurrer was properly sustained. The judgment of the District Court is affirmed.
Affirmed.
Concurrence in Part
dissenting in part and concurring in part.
If the allegations of the plaintiff’s amended petition are true, as they must be assumed to be for the purposes of the demurrer, then he is entitled to some relief even though it is not the relief for which he prays. The City of Lincoln concedes in its brief that if he proves the al
I would remand the cause with leave to the plaintiff to amend his prayer to ask to have the conveyance set aside and to pray for any consequential damages he may have suffered. This he is entitled to do under the provisions of section 25-854, R. R. S. 1943. If he declines to do so then his petition should be dismissed.