statutes limiting reach of municipal liability do not demonstrate legislative adoption of general municipal immunity
How later courts described this case
- statutes limiting reach of municipal liability do not demonstrate legislative adoption of general municipal immunity
- upon determining that judicially created doctrine is unsound and unjust, court has duty to respond; courtroom doors were closed, and likewise may be opened, without legislative help
- “ ‘Having found that doctrine to be unsound and unjust under present conditions, we consider that we have not only the power, but the duty, to abolish that immunity. We closed our courtroom doors -without legislative help, and we can likewise open them.’ ”
Written by the judges who cited it.
The opinion
Mr. Justice Bristow, concurring in part and dissenting in part :
I concur with the reasoning and the results' reached by this court in the case of the instant plaintiff. But the dissenting opinion of Mr. Justice Davis reads the court’s opinion as abolishing the immunity of school districts only as to the instant plaintiff but as retaining that immunity as to the other children who were injured with the plaintiff in the same accident. To the extent that the majority opinion is subject to the construction imparted to it by the dissenting opinion, I must withhold assent.
This is a test case brought by a father on behalf of one of his four children, all of whom were injured at the same time and under identical circumstances. It is clear that all of the children, having the same father and next friend and being represented by the same counsel, have identical interests in this appeal, which has been an important test case. There was a common question of law in the cases of all of the children and it serves the interests of justice to encourage and entertain a test case respecting all of the children.
I would reject any intimation that the court’s holding in this case is limited to the named plaintiff and would repel any inference that the court’s opinion pretermits the rights of the other children. I also dissent from the court’s order denying the leave of the instant plaintiff’s brothers and sisters to intervene in this case and request a clarification of the court’s present opinion.
With these reservations, prompted by the dissent, I join the majority of the court in its opinion and judgment in this case.