This constitutional test of governmental immunity arises from a summary judgment of the trial court which dismissed the cause as res judicata.
We affirm.
I. Facts
In a complaint filed January 15, 1971, plaintiff claimed that his son’s injuries resulted from the negligence of the city 1 from which he asks one million dollars. The city’s motion for summary judgment was based on its claim of governmental immunity. The motion was granted on April 23, 1971. Plaintiff’s application for delayed appeal was denied by the Court of Appeals on September 30, 1971. That case was never appealed to this Court and so became final.
However, after the first adverse summary judgment was filed, plaintiff filed another complaint regarding the same incident and the city, citing the April 23 order, asked for summary judgment
*330
based on res judicata.
2
The motion was granted on August 6, 1971. Plaintiff proceeded to appeal the second summary judgment. See
The Court of Appeals, however, stated that the summary judgment was granted because "defendant is immune from liability” by virtue of MCLA 691.1407; MSA 3.996(107). 3 The opinion of the Court of Appeals is now challenged in this Court.
II. Court Rules
GCR 1963, 117.2(1) permits a motion for summary judgment if "the opposing party has failed to state a claim upon which relief can be granted”. GCR 1963, 117.3 provides that judgment shall be rendered "if the pleadings show that any party is entitled to judgment as a matter of law”. Such was the case in plaintiff’s first action.
When plaintiff filed the second complaint, defendant again moved for summary judgment. The plaintiff responded saying in part that "if the court sees fit to dismiss,* that it does so on the *331 grounds of its prior order”. Although labeled a summary judgment, plaintiff’s motion was for accelerated judgment as defined by GCR 1963, 116.1(5) permitting a judgment to "be entered dismissing one or more claims” because "the claim is barred because of * * * prior judgment”.
Defendants claim that the summary judgment, denial of leave to appeal, and failure to appeal to this Court in the first suit bars the second. The Court of Appeals should be affirmed but on this basis.
III. Res Judicata
In
Tucker v Rohrback,
"The general principles which must govern the case are familiar. There are two matters in respect to which an adjudication once made may be conclusive: first, the subject matter involved in the litigation; second, the point of fact or of law, or of both, which was necessarily adjudicated in determining the issue upon the subject matter in litigation.”
The "subject matter involved in a litigation is the *332 right which one party claims as against the other and demands the judgment of the court upon”.
During the doctrine’s development some cases held that "for
res judicata
to apply, the question must in fact have been litigated in the first proceeding”.
Gursten v Kenney,
"The correct rule is found in
Henderson v. Henderson,
3 Hare 100, 115 (67 Eng Rep 313) [1843], and is quoted in Michigan decisions from
Harrington v. Huff & Mitchell Co.,
" ' "The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” ’ ” 7
In plaintiff’s first action, defendant, claiming statutory immunity, moved for summary judgment. In such motions the court assumes that plaintiff’s factual allegations are true. The court accepted defendant’s application of the immunity law and granted the motion. The Court of Appeals denied the application for leave to appeal. No appeal was taken to this Court. The decision is final. See
McCullagh v Goodyear Tire & Rubber Co,
*333 The second suit was between the same parties in the same position as plaintiff and defendant. The subject matter involved was the same. The legal point involved was the same.
If the double filing is allowed in this case, it follows that any possible "final” adverse ruling can be likewise circumvented. Several questions then call for answers. For instance, how long after the first adverse decision may one wait before filing another complaint and how many such complaints can be filed?
Jones v
Chambers,
We affirm the result of the Court of Appeals opinion but make no judgment as to governmental immunity.
Notes
His son was injured in an accident in a municipal swimming pool operated by the City of Detroit Department of Parks and Recreation. No fees or other charges were made to the users.
In motion for summary judgment filed June 2, 1971, defendant set forth as argument:
"That the plaintiffs Complaint fails to state a claim upon which relief can be granted.
"That the matters alleged in the Plaintiffs Complaint were subject of previous litigation and a Motion for Summary Judgment of Dismissal of Cause was granted by the Court on April 23, 1971 and this action is barred by the doctrine of Res Judicata.”
Motion was granted.
The Court of Appeals may have been led astray by the "Settled Record” in which the facts surrounding the injury were set forth. Contrary to the plain wording of the motion, however, it additionally stated:
"That a motion for Summary Judgment was filed on behalf of the defendant stating that PA 1964 No 174, Section 7, as amended by Section 7 of PA No 155 of 1970, barred plaintiffs claim.”
No matter what led to this version of a "settled record”, we cannot change the record itself. The motion was not based solely upon the governmental immunity statute, but also upon res judicata.
See Bugg v Fairview Farms, Inc,
See Creek v Laski,
See Clark v Naufel,
Justice Cooley wrote in
Barker v Cleveland,