The appellants, Mrs. Mattie Peeples and Mrs. Henrietta Jackson, are the mother and administratrix, respectively, of Millie Ann Peeples, who was killed when a stolen car being chased by Atlanta Police Officer M. S. McCrary collided with her car. Appellants filed this wrongful death action against the police officer and the City. The City filed a motion to dismiss or in the alternative for partial summary judgment as to any liability over the amount of self-insurance, and that appellants’ prayer for punitive damages be dismissed. The trial court, after “having reviewed the record and the briefs on file, and after hearing argument of counsel,” gave judgment for the City and dismissed the City “as a party defendant.” This appeal followed. The City has filed a motion to dismiss, arguing the trial court’s judgment was not one subject to direct appeal but was reviewable only via certificate of immediate review. Held:
1. The City of Atlanta was one of two parties being sued. “The entry of a judgment [including dismissal] as to one or more but fewer than all of the claims or parties is not a final judgment under Code Ann. § 6-701 (a) 1 [now OCGA § 5-6-34 (a)] and lacks res judicata effect unless the trial court makes an express direction for the entry of the final judgment and a determination that no just reason for delaying the finality of the judgment exists.”
Culwell v. Lomas & Nettleton Co.,
Under OCGA § 9-11-12 (b), “[i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in” OCGA § 9-11-56. Subsection (c) of this statute also treats motions for judgment on the pleadings in the same manner. Although the present motion to dismiss is not couched in terms either that the complaint failed to state a claim, or prayed for judgment on the pleadings, in effect, the relief requested is the same because the claim of immunity is based on the wording of the *889 complaint and matters outside of the pleadings were considered by the court in reaching its decision.
A motion grounded on a claim of sovereign immunity is one in bar — the same as a claim of the running of the statute of limitations. This court has held that “[s]ince the bar of the statute of limitation appears on the face of the complaint, the defendants could and did raise the question at the trial term by their motion to dismiss the complaint” and the trial court “did not err in . . . sustaining the defendants’ motions to dismiss.”
Addington v. Ohio So. Express,
2. Appellants enumerate as error the trial court “taking from the jury the issue of whether the City of Atlanta is liable for the ministerial acts of its agents.” The basis for this claim of error is grounded upon OCGA § 36-33-1 (b), which states: “Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskilled performance of their ministerial duties, they shall be liable.” The Supreme Court has phrased it thusly: “A municipality is immune from suit for acts it performs which are authorized by law and executed ... in the exercise of a governmental function. [Cits.] . . . However, the municipality is liable where there is negligence or error ... in the exercise of a ministerial duty. [Cits.]”
Mayor &c. of Savannah v. Palmerio,
“We conclude this constituted a question of law for the trial court and not a question of fact for [the] jury.”
City of Valdosta v. Bellew,
3. Error is enumerated in the ruling of the trial court that the City had not “partially waived its immunity by reason of its ownership, maintenance, operation or use of its motor vehicles, as authorized by OCGA § 33-24-51 (b).” This code section provides, in part: “(a) A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation. . . .” When a municipal corporation “shall purchase the insurance authorized ... to provide liability coverage for the negligence of any duly authorized officer, agent ... or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.” Id. (b).
Our Constitution provides that the General Assembly may waive the immunity of municipalities. Art. IX, Sec. II, Par. IX, 1983 Ga. Const. Thus, the General Assembly has stated that “it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of [this] state . . . except as provided in Code Section 33-24-51. . . .” OCGA § 36-33-1 (a). Moreover, “[a] municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.” OCGA § 36-33-3. Hence, the sovereign immunity of municipalities has not been waived, except to the extent of insurance purchased or the city is self-insured (OCGA § 33-24-51 (b)), and in any event the municipality is not liable for the torts of policemen during the discharge of their duties (OCGA § 36-33-3). The City admitted that it is self-insured in the amount of $1,000 in any one incident, for liability arising from the operation or use of its motor vehicles.
At the outset, we will note that appellant’s action is based in tort, on state law, and not on a federal cause of action. See
Davis v. City of Roswell,
Under the foregoing facts and law, it is clear that the police officer was in the performance of his official duties and the trial court did not err in granting summary judgment to the City. We do not view plaintiff’s decedent’s death as arising from the use, maintenance or operation of the City’s motor vehicle. Plaintiff’s decedent’s death was due to the negligence or wilful misconduct of a fleeing felon in running a red light and as a consequence thereof striking the decedent’s car. “Implied waivers of governmental immunity should not be favored.”
City of Atlanta v. Gilmere,
Judgment affirmed.