STATE ex rel. William TRIMBLE, et al., Relators, v. The Hon. Brendan RYAN, Judge of the Circuit Court, City of St. Louis, Missouri, Respondent.
No. 69376.
Supreme Court of Missouri, En Banc.
Feb. 17, 1988.
Rehearing Denied March 15, 1988.
The prosecutor used this exhibit to cross-examine appellant on her work record and to introduce testimony that appellant had been alone in the infant section of the day care center on March 11, 1985. Appellant denied that she had ever been alone in the infant section, although earlier several parents testified that they had seen appellant alone in that section. Appellant was aware that this was an issue in the trial and the State was pursuing it. The stipulation does not refute this contention, but it was evidence the jury could consider in deciding whether appellant was ever alonе in the infant care section. Appellant could have refuted this contention with countervailing evidence, but failed to do so.
Appellant claims the State‘s closing argument was improper because it referred to State‘s Exhibit 2 and inferred that appellant was alone with the children on March 11, 1985. The trial court has broad discretion in controlling the sсope of closing argument. State v. Robinson, 641 S.W.2d 423, 426 (Mo. banc 1982). Exhibit 2 was properly admitted by stipulation. A prosecutor has the right to draw any inferences from the evidence which he believes in good faith to be justified. State v. Armbruster, 641 S.W.2d 763, 766 (Mo.1982). There was testimony by the defendant that she was never alone with the children; parents testified they had seen appellant alone with them. Appellant was cross-examinеd concerning her work record, State‘s Exhibit 2, where it showed appellant could have been alone with the infants on March 11, 1985, because all the other employees that worked in that section had left for the day. The State is entitled to draw the appropriate inference from the evidence.
The judgment is affirmed.
All concur.
Ronald B. Wessel, Steven G. Schumaier, Clayton, for respondent.
ORIGINAL PROCEEDING IN PROHIBITION
RENDLEN, Judge.
Relators seek to prohibit enforcement of respondent‘s order striking the ad damnum clause from their wrongful death petition and restricting their claim against defendant Bi-State Development Agency (Bi-State) to $100,000.00.
In their petition for damages, relators, the parents and wife of decedent James Trimble, alleged that on September 21, 1986, Trimble sustainеd fatal injuries when riding in a car that collided with a Bi-State bus operated by James McKenney, an employee of Bi-State. Further, they alleged1 the collision resulted from the bus driver‘s negligence when attempting a left turn into a Bi-State lot in the City of St. Louis, and prayed judgment against Bi-State and the bus driver, jointly and severally, in the amount of $3,000,000. Defendants responded with their combined motion to dismiss and strike portions of plaintiffs’ petition, asserting inter alia that Bi-State‘s tort liability as a political subdivision of the State of Missouri is limited to the amount specified in
The applicability of
The first issue is whether Bi-State is a public entity which would have been immune from tort liability prior to Jones. Under the common law, “municipalities were not protected by sovereign immunity for torts arising from their proprietary functions but were protected from
The history and nature of Bi-State must be considered against this background. Bi-State was created in 1949 by a compact betwеen the States of Missouri and Illinois contained in
The term “public entity” is not defined in
The principal authority cited by relators in support of their contеntion that Bi-State is not a public entity is St. Louis Transit Co. v. Division of Employment Security, 456 S.W.2d 334 (Mo.1970), in which this Court concluded that Bi-State was not a political subdivision of the state for purposes of determining whether this Court has jurisdiction of actions involving Bi-State under article V, section 3 of the Constitution of Missouri. The jurisdictional questions presented in that case involved considerations quite separate from the questions of immunity presented here, and St. Louis Transit is not persuasive authority for the proposition that Bi-State is never, in any context, a political subdivision of the state. Certain other public entities that have not been considered political subdivisions for purposes of appellate jurisdiction have nevertheless been found tо possess sovereign immunity. See, e.g., Page, 377 S.W.2d at 348 (sewer district); Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499 (Mo. 1964) (Highway Commission).
Having concluded that Bi-State is immune from tort liability under common law concepts existing prior to September 12, 1977, we note that, accepting the averments of the petition as true, Bi-State is nonetheless amenable to suit under the statutory waiver of immunity contained in
The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650 shall not exceed eight hundred thousand dollars for all claims arising out of a single accident or occurrence and shall not exceed one hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri worker‘s compensation law, chapter 287, RSMo.
In light of the plain language of the statute, it cannot be seriously disputed that relators’ claim is one within the scope of
Finally, we address relators’ contention that the trial court exceeded its jurisdiction in limiting recovery against the bus driver to $100,000. We do not interpret the order as having that effect, but to avoid confusion we direct that it be modified so that the damage award limitation clearly applies only to Bi-State. The bus driver here is not protected by “official immunity,” which precludes tort claims arising from discretionary acts or functions of public officials engaged in the performance of their official duties. Johnson v. Carthell, 631 S.W.2d 923, 927 (Mo.App.1982). This driver, like the driver in Johnson, was not a public official performing a discretionary act, but rather was engaged in the ministerial matter of navigating a left turn.
For the reasons stated, we quash our provisional rule in prohibition except to direct modification of the trial court‘s order so that it limits recovery as to Bi-State only.
BILLINGS, C.J., and DONNELLY, WELLIVER, ROBERTSON and HIGGINS, JJ., concur.
BLACKMAR, J., dissents in separate opinion filed.
BLACKMAR, Judge, dissenting.
The legislature, in adopting
One circumstance which hits us squarely between the eyes is that, in at least 15 cases decided on appeal prior to the effective date of
On June 15, 1978, this Court handed down opinions in Myers v. Bi-State Development Agency, 567 S.W.2d 638 (Mo. banc 1978) and Nagel v. Bi-State Development Agency, 567 S.W.2d 644 (Mо. banc 1978) affirming plaintiffs’ verdicts in suits against Bi-State. These cases come after Jones, but before the effective date of
A holding that Bi-State is liable in tort and does not enjoy sovereign immunity is consistent with legal principles then prevailing. The law of municipal corporations has long recognized a distinction between “governmental” operations, to which sovereign immunity applies, and proprietary operations, to which it does not. Beiser v. Parkway School District, 589 S.W.2d 277 (Mo. banc 1979), expounding the familiar rule. The proprietary operations, generally, are those of a kind regularly carried on by private enterprise.2 The sense of the law is that the substitution of a public provider for a private оne should not operate to the disadvantage of tort claimants.
Surface transportation, manifestly, is an activity appropriate to private business. Those injured by buses or trolley cars have traditionally had a remedy in damages. See Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484 (1955). It was apparently assumed on all sides that the transfer of surface transportation operations in the greater St. Louis area from the prior operators to Bi-State did not deprive injured members of the public of the common law remedies previously available. Neither the agency nor its counsel apparently considered that it was immune. It must have built this assumption of liability into its forecasts and projections.
Cases such as Beiser v. Parkway School District, supra, holding that states, counties, and other gоvernmental units are immune from liability even though their activities may be of a proprietary nature, do not control. These units historically have carried on functions which are governmental, and their assumption of operations of a proprietary nature is a relatively recent phenomenon, coming after established doctrines of immunity had beеn developed in the case law. Bi-State, by contrast, was a new animal. The courts were perfectly free to determine the nature of the beast and to decide on the basis of prevailing legal doctrine whether its operations should be the subject of sovereign immunity.
The case of St. Louis Transit Company v. Division of Employment Security, 456 S.W.2d 334 (Mo.1970), is of much more
I am confident that, had the point been argued prior to 1977, our courts would not have found Bi-State to be immune, by analogy to proprietary functions of municipal corporations. This is especially so because a holding of immunity would preclude any recovery whatsoever, in any amount. The allowance of a claim with limits of $100,000 per person and $800,000 came only in 1978, as a matter of legislative grace, in
Seсtion 537.600 commands us not to extend the law of sovereign immunity. What it says is that any future modifications, or consideration of inequities or irrationalities, must come from the legislature and not from the courts. The legislature, however, has not given us any guidance as to the liability status of Bi-State, either before or after 1978. We are not forbidden to decide explicitly a questiоn which seems to have been implicitly decided over a period of many years prior to 1977. That question should be decided on the basis of common law principles as understood in 1977 and the climate prevailing in the legal and governmental community at the time.
In Jones we postponed the effective date of abolition of sovereign immunity because of the expectation of the governmental units involved that they were not liable for tort damage. The legislature passed
The principal opinion apparently considers that our basic task is to determine whether Bi-State is a “public entity.” This approach is purely conceptualistic. The phrase, “public entity” is not a term of art. It was introduced to this area of jurisprudence by
It follows that the preliminary rule should be made absolute, so that the trial judge is prohibited from limiting the plaintiff‘s possible recovery to $100,000.
No. 69393.
Supreme Court of Missouri, En Banc.
Feb. 17, 1988.
Rehearing Denied March 15, 1988.