(dissenting). Our disenchantment with the doctrine of governmental immunity should not, in my opinion, take the form of finding a waiver of such immunity on the part of a municipality because the latter has contracted for a certain type of liability insurance.
*503I recognize that a municipality can waive its immunity as to tort liability; the question is whether Green Bay has voluntarily done so by purchasing a contract of liability insurance which provides that the insurer will not raise the defense of governmental immunity.
A few jurisdictions have taken the view that the purchase of insurance waives the immunity. Four states referred to in the majority opinion have so held. However, 20 states have held to the contrary, with 12 of such states expressing such view within the past fifteen years. See Anno. 68 A. L. R. (2d) 1439.
A city is authorized by law (sec. 66.18, Stats.) to procure liability insurance. The fact that the city of Green Bay purchased liability insurance and the fact that the policy barred the insurer from raising the defense of governmental immunity do not, in my opinion, warrant a conclusion that the city thereby has intentionally waived an existing defense or unintentionally estopped itself from asserting it.
In a proper case, the city might have chosen to waive its immunity as a municipality performing a governmental function and, in such event, its insurance coverage would be operative. The fact, however, that it reserved the power to do this should not be converted into a requirement that it do so. In my opinion, the majority decision unwisely translates the protection of insurance to the creation of liability.
One purchases liability insurance to protect himself in the event he is found to be responsible; the ruling of the majority means that one not otherwise liable is now responsible because he has purchased insurance.
The plaintiffs were unable to bring a direct action against the insurance company in the case at bar. Nevertheless, the majority opinion has interpreted the insurance contract as a third-party-beneficiary agreement which operates in favor of injured claimants. I find it difficult to believe that the city *504of Green Bay took out liability insurance in order to create liability in favor of third parties.
The majority opinion advances the view that it would be “a virtual fraud and a misuse of public funds” for a city to insist on its immunity under these circumstances. We abrogated tort immunity prospectively in Holytz v. Milwaukee (1962), 17 Wis. (2d) 26, 115 N. W. (2d) 618; before that decision, no municipality was able to predict what this court would do in connection with that subject. The doctrine had been terminated in a large number of states so that Wisconsin municipalities were justifiably concerned with what might happen in this state; certainly the doctrine was under strenuous siege. A municipality could not know in advance of the Holytz Case whether there would be abrogation and, if so, whether it would be prospective or retroactive. It was a reasonable precaution for cities to take out insurance lest municipal immunity be terminated with retroactive effect. I fail to see how the purchase of insurance under these circumstances could constitute the misuse of public funds.
I am authorized to state that Mr. Chief Justice Brown joins in this dissent.