141 N.W.2d 387 | Mich. Ct. App. | 1966
DONELLON
v.
COUNTY OF WAYNE.
Michigan Court of Appeals.
Riseman, Lemke & Piotrowski (Carl M. Riseman, of counsel), for plaintiff.
Samuel H. Olsen, Prosecuting Attorney, Aloysius J. Suchy and George H. Gross, Assistant Prosecuting Attorneys, for defendants.
Leave to appeal denied by Supreme Court August 25, 1966. See 378 Mich. 727.
LESINSKI, C.J.
Janette Shock Donellon, the plaintiff-appellant, sued the county of Wayne and individual defendants Dr. Samuel Jacobson, Walter B. Furay, Sylvester Echols, Charles S. Vanoy, and Richard Charles Kilponen jointly and severally for the wrongful death of her husband, Charles Shock. On motion of defendants, the trial court on September 29, 1964, entered an order for summary judgment in favor of all defendants based on the governmental immunity of the county and its employees when carrying out governmental functions. On October 17, 1964, the plaintiff moved for a rehearing of the order granting summary judgment only in respect to the individual defendants and not *578 as to the county. This motion was denied on November 18, 1964, and from this determination and the order for summary judgment, the plaintiff took a claim of appeal to the Michigan Supreme Court. The case was then transferred by the Supreme Court to the Court of Appeals on January 7, 1965.
As to the county of Wayne, the appeal was not timely filed in the Supreme Court and therefore cannot be heard by our Court under GCR 1963, 803.1 (as effective prior to January 1, 1965)[1] as an appeal as of right. The appellant first filed this appeal in the Supreme Court on December 7, 1964, 19 days after plaintiff's motion for rehearing was denied. This motion for rehearing was only taken in regards to the individual defendants and not as to the county of Wayne. Therefore, as to the county, the judgment appealed from was the initial summary judgment granted by the court on September 29, 1964. Plaintiff in order to appeal the judgment respecting the county, would have had to file his appeal within 20 days of that judgment. Not having done so, the appeal regarding the county of Wayne is not properly before this Court.
The basic question remaining before this Court is whether the individual defendants, employees of the county, can be shielded from liability by the defense of governmental immunity.
As the law stands with respect to this case, the shield of immunity has been lifted from the county. Myers v. Genesee County Auditor (1965), 375 Mich. 1, indicates that a majority of the Court concurs in the abrogation of the governmental immunity doctrine. In the opinion by Justice O'HARA in the Myers Case, concurred in by Chief Justice T.M. KAVANAGH, it is said at page 11:
*579 "The rule of governmental immunity as to all political subdivisions of government is hereby abrogated as it has heretofore been abrogated as to municipal corporations, i.e., cities. No longer is the defense of governmental immunity for tort liability available, irrespective of whether the involved political subdivision is functioning `governmentally' or `proprietarily.'"
And Justice SOURIS in an opinion concurred in by Justice ADAMS states:
"I concur in Mr. Justice O'HARA'S decision, the result of which is to overrule Lewis v. Genesee County (1963), 370 Mich. 110."
Thus Justice SOURIS is overruling a case that held governmental immunity a valid defense for the county and its agents. By doing so a majority of the seven men sitting in the Myers Case have expressly overruled the right of the county or its agents to raise the immunity doctrine as a defense to their alleged tort liability.
Therefore, in the case at bar the summary judgment in favor of all the defendants was improperly granted in light of the rule of the Myers Case[2] as reaffirmed in Keenan v. County of Midland (1966), 377 Mich. 57. See, also, Picard v. Greisinger (1965), 2 Mich. App. 96.
Reversed and remanded for trial as to the individual defendants. No costs, a public question being involved.
FITZGERALD and J.H. GILLIS, JJ., concurred.
NOTES
[1] See currently, GCR 1963, 803.1 as amended October 9, 1964, 373 Mich. xxxiv.
[2] Though PA 1964, No 170 (CL 1948, § 691.1401 et seq. [Stat Ann 1965 Cum Supp § 3.996(101) et seq.]) went into effect on July 1, 1965, it could not affect the prospective liabilities of the parties in the case at bar. Therefore for the period prior to July 1, 1965 the rule of the Myers Case stands as the law in respect to the use of governmental immunity as a defense.
