*300Dissenting Opinion.
Achor, J.— As I see it two primary issues are presented by this appeal. The first is whether the amount of recovery is limited by Acts 1941, ch. 52, §2, p. 146 [§39-1819, Burns’ 1952 Repl.]. The second is whether or not the controlling effect of the statute was timely asserted.
Appellant has asserted in its motion for new trial and by a separate motion to require a remittitur that damages in the sum of $30,000 were in excess of the amount authorized by law since the appellant carried insurance against liability for the negligence of its officers and employees in the operation of its motor vehicles, and since by statute [§39-1819, supra] the liability of the appellant municipality , was limited to the amount of insurance carried against liability for the specific incident, the amount of such insurance being $10,000.
The statute relied upon by appellant reads as follows:
“The state, or any municipal corporation thereof, is hereby empowered to purchase policies of insurance insuring the officers, appointees, agents and employees of the ... municipal corporation against loss ... because of liability imposed by law upon such officers, appointees, agents and employees for loss or damage resulting from ... injury ... sustained by, any person ... caused by accident and arising out of the ownership, ... or use of any motor vehicle owned by the state or such municipal corporation, ... No such policy of insurance shall be purchased . . . unless there shall be contained within such policy a provision that if there arises ... suit ... such insurance carrier will not set up, as a defense, the immunity of the state or of such municipal corporation,...”
“and to pay the premiums thereon out of public funds. In no event shall the ... municipal cot- ■ *301poration ... be liable, in any case, in any amount in excess of the maximum amount, of valid insurance ... covering the ... vehicle ... causing such . . . damage: . . .” [Emphasis added.] Acts . 1941, ch. 52, §2, p. 146 [§39-1819, Burns’ 1952 Repl.].
It is the last statement quoted from the above statute and italicized by us which poses the problem which must be resolved in this case. Was the liability of the city of Terre Haute limited to the amount of insurance carried by the city upon the vehicle involved in the collision, as a result of the provision of §39-1819, supra?
Appellee contends that the above cited statute is not controlling of the permitted amount of recovery. In support of this contention he reasons first that Acts 1945, ch. 197, §1, p. 635 [§47-2030a, Burns’ 1952 Repl.] is a subsequently enacted statute which provides for no limitation upon the liability of the municipality by reason of the insurance statute §39-1819 previously enacted, or otherwise. Furthermore, appellant asserts that the earlier adopted statute is not controlling of the later enacted statute since the former is merely an insurance statute which authorizes . the state and its municipalities to purchase insurance against liability for the negligent operation of its motor vehicles by its officers, agents and employees which previously it had not been authorized to do. Therefore, appellant asserts that the 1941 statute has no application to the action at bar which is brought under the later Acts of 1945, since liability under said act is, in nowise, dependent upon any authorization contained in the earlier “insurance statute.” On the basis of this argument appellant concludes that the two statutes are not in pari materia; that §39-1819 does not operate as a limitation upon *302the amount recoverable under §47-2030a, pursuant to which this action was brought.
Thus it is our responsibility to analyze the two above cited statutes and determine whether or not they are, in fact, related to the same subject matter. If they are, then they must be given effect in pari materia,1 that is, each statute must be made operative within the scope of its separate provisions. In determining this question, it is proper that we first examine §47-2030a, supra, under which this action was brought to determine whether, from its language, operation and effect, it can be ascertained that the legislature intended that it operate independent of the earlier adopted insurance statute §39-1819, supra. There is nothing in the language of the statute itself which indicates such intention. We, therefore, analyze the operational effect of the statute for the purpose of determining whether such intention might be reasonably construed therefrom.
Obviously, the purpose of §47-2030a was to establish liability on the part of appellant municipality for the negligent operation of its motor vehicles by its policemen and firemen in the performance of their initial duty, which activity constitutes a governmental function. Previously the state and its municipalities had enjoyed complete immunity from liability in the performance of such activity unless, perhaps, this immunity was waived by the purchase of insurance by the municipality under the provisions of §39-1819, which issue had not been adjudicated and regarding which the reported cases leave *303considerable doubt.2 Clearly the effect of §47-2030a was to extend the liability of the municipality in the performance of this particular governmental function and establish that liability on the same basis as the liability of the municipality with respect to the same activity performed by the officers and employees of the municipality proprietary capacity.
■ As stated by appellee, the liability established by §47-2030a was not dependent upon the earlier insurance act §39-1819. However, it does not follow that the amount recoverable under the later act was not subject to the limitations of the “insurance act.” The liability of the municipality for the negligent operation of its motor vehicles by its officers and employees in the performance of a proprietary function was not dependent upon the operation of the so-called “insurance act,” yet said act clearly operated as a limitation upon the amount recoverable for such torts, in event insurance was carried covering the ability of the municipality for such torts. The so-called “insurance act” is written in broad general terms and is made to apply under all circumstances where municipally owned motor vehicles are operated by the officers and employees of the city and liability is imposed by law, which liability is clearly established, without limitation, in the later act. Thus the subject matter of the latter act is clearly covered by the provisions of the earlier “insurance act.”
*304As above indicated, we aré not here concerned with a question of statutory construction in a usual sense. Rather, we are concerned with the resulting effect of two independent statutes which bear upon the same subject matter. It is a fundamental rule that statutes which relate to the same subject matter must be considered together in pari materia in order to give effect to each, if possible, unless a clear legislative intention to the contrary appears in the language of the statutes themselves. State ex rel. Rogers v. Davis (1952), 230 Ind. 479, 104 N. E. 2d 382; Walgreen Co. v. Gross Income Tax Div. (1947), 225 Ind. 418, 75 N. E. 2d 784; Dawson v. Acme Evans, Inc. (1947), 118 Ind. App. 49, 75 N. E. 2d 553.
The fact that statutes related to the same subject matter were enacted at different times does not alter the rule. This principle of construction is applied in order to give effect to the whole statutory body of the law on related matters without regard to the time of passage of the respective acts. Johnson v. City of Indianapolis (1910), 174 Ind. 691, 93 N. E. 17; Parvin v. Wimberg et al. (1892), 130 Ind. 561, 30 N. E. 790; Smith, etc. v. General Motors Corp. et al. (1958), 128 Ind. App. 310, 143 N. E. 2d 441.
It is my opinion, therefore, that under the rules of statutory interpretation, as above enunciated, §47-2030a and §39-1819, swpra, are in pari materia and that together they constitute the governing law of this case.
The effect of these statutes, so construed, is that the municipality is liable for the negligent operation of its motor vehicles by its policemen and firemen in the performance of their official duties, but that because thé municipality had. purchased insurance against this very liability such liability is; by *305statute, limited to the maximum amount of the insurance carried by the municipality upon the vehicles involved. In this case the maximum amount of insurance coverage was $10,000.
It is argued that the facts in this case demonstrate that' such an interpretation of the statute would effect a result which is in clear conflict with the obvious humane purpose of the latter law. This issue we do not decide. This court must accept the acts of the legislature as they are written. We do not express an opinion as to their wisdom. The public policy of the law as expressed in the acts of the legislature is for the legislature to determine. Through it. the state may, on the one extreme, claim complete sovereign immunity from liability for the negligence of its officers and agents in their performance of the governmental function with which we are here concerned. On the other extreme, the legislature may voluntarily surrender such governmental immunity entirely. Or the legislature may, within its discretion, limit the amount of the liability of the state and its municipalities to either a fixed or conditional amount. By this authority the legislature may provide protection to injured persons by providing for the recovery of damages where such right did not formerly exist, and at the same time protect the municipality by limiting the amount of its liability to the maximum amount of insurance carried against the specific liability. This, in my opinion, is the effect of the law as presently enacted.
However, it is here asserted for the first time that the issue as to the statutory limitation upon the liability of the appellant, because of the insurance carriéd by appellant, was waived because that issue was not raised in, the trial court until after the con-*306elusion of the trial. It is upon this contention that the majority opinion is based.
In my opinion the contention is not tenable. Although it is true that matters in mitigation of damages must ordinarily be pleaded and proved in the trial of the case, [25 C. J. S. Damages §142, p. 780 (1941)], as stated in the majority opinion, the facts here do not bring the case within that rule. The issue before us is not one of mitigation of damages. We are not here concerned with the conduct of either party as it is related to the cause of the injury, the extent of the damages sustained, or the fact of the appellee’s right of action against appellant for such injury and damages, or similar issues which may be proved in mitigation of damages. Rather, we are hei-e concerned with a statutory limitation, upon the amount recoverable, which limitation exists not by reason of any facts related to the cause of action, but by operation of law wholly independent of the merits of the action.
Therefore, in my opinion, the fact of insurance was not an issue which appellant was required to inject into the action. Rather it was proper to raise the issue at the conclusion of the trial after it was determined for the first time that because of the amount of the verdict the statutory limitation of the “insurance act” had an operational effect in the case. The issue of law thus presented, regarding which there is vigorous contention, was an issue solely for the court. Under these circumstances there was no reason to present the issue prior to the verdict in the case.
Since §39-1819, supra, does not provide' the procedure by which the statutory limitation upon the liability of a municipality is to be asserted, I see no *307reason why the procedure adopted by the appellant should not be approved.
Bobbitt, J., concurs.Note. — Reported in 183 N. E. 2d 815.
. “Statutes which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose are in pari materia.” 82 C. J. S. Statutes §366, p. 801 (1953).
. Acts 1941, ch. 52, §2, p, 146 [§39-1819, Burns’ 1952 Repl.] provided that any municipal corporation was empowered to purhase insurance against “liability imposed by law” in the operation of its motor vehicles. The act did not state any clear purpose to extend the liability of the municipality beyond that already imposed for torts committed in the performance of proprietary functions by the officers and employees of the municipality. See: Flowers v. Bd. of Comrs. of Vanderburgh County (1960), 240 Ind. 668, 168 N. E. 2d 224; Hummer v. School City of Hartford City (1953), 124 Ind. App. 30, 112 N. E. 2d 891.