BEFORE PATTERSON, C.J., DAN LEE & ROBERTSON, JJ.
PATTERSON, CHIEF JUSTICE, FOR THE COURT:
On October 13, 1980, an automobile owned by Ellen Ratliff and driven by Haskell White collided with a fire truck at the intersection of Highway 45 and Pinecrest Street in Tupelo. Ratliff was a passenger in the car at the time. In the fire truck, which was allegedly owned by the City of Tupelo, were Tupelo Fire Department Captain Roy Jackson Box and William Estes, a representative of the Belden Volunteer Fire Company, Inc. The record indicates at the time of the crash Box was instructing Estes on the operation of the truck pursuant to an agreement to sale the vehicle to the Belden Volunteer Fire Company, Inc.
Having inflicted serious injuries, the collision resulted in several lawsuits. White filed a complaint against Estes, the City of Tupelo, the Town of Belden, and Tupelo Fire Chief Curtis Sanders for negligence. The City of Tupelo raised the defense of sovereign immunity, and Sanders raised as a defense that this immunity inured to his benefit.
Box sued Estes, White, and Ratliff. Ratliff filed a counterclaim, cross-claim and third party complaint against Sanders, the City of Tupelo, Estes, Box, and the Belden Volunteer Fire Company, Inc. Again, Sanders and the City of Tupelo raised sovereign immunity as a defense.
The suits of White and Box were consolidated for trial.
On October 18, 1982, the court conducted a hearing on Sanders' and the City of Tupelo's motions to dismiss.
Afterward, the court concluded, "The actions by the City of Tupelo and its agents which are the basis of this cause of action, were governmental acts, not proprietary, and therefore the motions of the defendants to dismiss should be sustained."
On appeal White and Ratliff assign as error the court's dismissal of the City of Tupelo and Curtis Sanders.
We first address the issue whether the court erred in holding the City of Tupelo immune from suit. We first acknowledge that in Mississippi there have been two significant developments in the area of sovereign immunity in the past two years. First, in Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss. 1982), this Court abolished the doctrine of the immunity of the "sovereign," including the state and its local subdivisions. However, the court limited this ruling to causes of action accruing on or after July 1, 1984. Subsequently, the legislature responded by passing Senate Bill No. 2441, Chapter 495, General Laws of Mississippi (Approved May 15, 1984). However, since this cause of action accrued on October 13, 1980, we must analyze pre Pruett decisions to determine whether the lower court properly applied the doctrine of sovereign immunity in this case.
As stated in Nathaniel v. City of Moss Point, 385 So. 2d 599, 601 (Miss. 1980), "[A]bsent statutory provisions, there can be no recovery against a municipality based on negligence in the exercise of functions which are essentially governmental in character; however, when acting in a private or a proprietary capacity, it is liable in tort the same as private corporations." Tucker v. City of Okolona, 227 So.2d 475, 476 (Miss. 1969). Thus the issue, simply stated, is whether the city was acting in its private or proprietary capacity, or exercising its governmental functions, at the time of the incident. If the former is correct, the case must be reversed.
Governmental and proprietary functions were distinguished in City of Pass Christian v. Fernandez, 100 Miss. 76, 82, 56 So. 329 (1911):
The public or governmental duties of a city are those given by the state to the city as a part of the state's sovereignty, to be exercised by the city for the benefit of the whole public, living both in and out of the corporate limits. All else is private or corporate duty, and for any negligence on the part of the agents or employees of the municipality in the discharge of any of the private duties of the city the city is liable for all damage just as an individual would be. . . .
The following are examples of proprietary or corporate functions, to which immunity does not attach:
(1) The supervision of construction of a retaining wall of a mall. Ditta v. City of Clinton, ...