*1 City 109 Eаst Tawas ok Maki 1969] proceedings con- remanded Reversed opinion. with sistent concurred. J.,
Fitzgerald, (dissenting). J. Cynar, grants the Recorder’s Court Charter The jurisdiction entire condemnation over the exclusive including proceeding, of condemnor’s determination being possession, right of assistance a writ opinion Wayne remedy. exclusive affirming County Pleas the Common Court Circuit affirmed. should be of Detroit Court EAST MAKI v. CITY OF TAWAS 1. Nuisance —Words Phrases —Classes. injury general fall into resulting personal three Nuisances inis (1) result from conduct which classes: nuisances which intentional, (2) law, nuisances whieh are itself a violation of origin negligence. (3) have their nuisances whieh [1] [2-5] [6] [7] [8] '10] 'll] U9] ‘13] 9,15] 50 14,16-18] 39 Am 39 Am 39 Am 39 22 Am Jur 39 Am 39 Am Am Am Am Am Am Jur, Jur, Nuisances Jur, Jur, 52 Am Jur Jur, Jur, Jur, Jur, References Jur, Nuisances Nuisances § Nuisances 2d, 2d, Appeal Nuisances Torts Nuisanees Statutes Jur, Statutes § Damages Torts 2 et § § § for Points §§ 4. 2. 23. 145. and Error § seq. § 183 et 200. 342. 100. et 95. seq. seq. in Headnotes 1009. Negligence. Negligence Nuisance—Contributory — care, to exercise due and con- in a failure Negligence consists appropriate an for that reason defense tributory negligence is grounded to a nuisance *2 Negligence Negligence Nuisance—Contributory —Trial. 3. — might origin have its jury that a nuisance may charge a A court jury found, contributory neg- if the negligence, so in and jury must consider. ligence a defense which the would be Negligence. Negligence Nuisance—Contributory 4. — generally to an action for Contributory negligence is a defense origin negligence. in has its nuisance that Negligence. Contributory Nuisance — 5. Nuisance —Classic nuisance, to which con- for “classic” or “absolute” An aetion a tributory one negligence defense, is not a arises when so uses with the his land as cause unreasonable interference use and enjoyment of land of another. Corporations. Pleading Nuisance—Negligence—Municipal 6. — damages city arising eye a the loss of Suit from an resulting explosiоn plaintiff municipal while was at a from an though dump in stated a cause aetion nuisance even the al- legations negligence. solely related Explosion—Municipal Corporations Jury 7. Nuisance — — Ques- tion. question there was of whether an intentional nuisance was properly jury explosion in left to a a ease where an at a mu- nicipal eye. dump plaintiff's in the loss of resulted Negligence. Torts —Words 8. and Phrases —Intentional Torts — Negligence is a kind of tort but there are also intentional torts based Immunity— 9. Constitutional Law —Statutes—Governmental Municipal Corporations. provides A section statute which that all a liability” engaged while shall be immune “tort held, discharge of a the exercise and function liability” unconstitutional, since section to “tort refers scope broader title which refers to than the of the act 691.140?). “negligence” art MCLA 24; (Const .111 Maki ok East Tawas Damages Eye. —Doss oe $12,500 A verdict an eye for loss of jury’s is witliin a discre- tion such a verdict cannot be said judicial to shock the conscience, nor to be erroneous as matter of law. 11. Costs —Public Question —Statute. appeal No costs are allowed on action to determine the consti- tutionality of statute, one section of question state being 691.1407). (MCLA involved
Dissenting Opinion
Levin, P. J. Liability Negligence 12. Torts —Words and Phrases —Tort Lia- — bility. “tort,” generally' accepted The term meaning, in its includes wrongs caused negligent; acts omissions that are not but commonplace it is also refer phrase liability” is, many every- tort “tort day usages, synonymous negligence liability. with *3 13. Constitutional Law —Statutes. duty Appeals The Court has a constitutionality sustain the of and, a end, statute it can language to that the used of if should, possible, preserve be construed to the statute’s con- if stitutionality. Torts—Liability—Negligence—Govern- 14. Constitutional Law — Immunity Statutes—Interpretation. mental — liability,” appea/r The words “tort providing ichich ain statute governmental immunity liability, tort be read should from meaning liability negligence, the where title the act for of states gov- that is an act malee the uniform agencies ernmental property persons caused for by negligence, judicially since not so read these words de- legislative purpose. (Const 1963, 4, 24; art MCLA feats 691.1407). n — — Interpretation — 15. Constitutional Law Statutes Narrow Construction. Courts, when with body a claim that the a statute confronted title, adopt exceeded its should a narrow construction title, statute so its content would not exceed its so that constitutionality preserved (Const 1963, the act’s will be art 24). 18 Liability Proprietary — Municipal — Corporations — 16. Torts Function. agencies Municipal corporations and have other arising long time tortious conduct out liable been for for performance proprietary aof function. — — —Law Govern- 17. Nuisance “Classic” Nuisance Commоn Immunity, mental insulate law did not The common is, against action, governments an a “classic” nuisance interest in land. action invasion an for Agencies Negligence. 18. Nuisance —Governmental — commission “classic” are liable Governmental for causing trespasses direct loss nuisances or so-called suffered way affecting on, with- land or or defendant’s causing regard a nuisance out to whether an act or omission negligent. intentional Dumps. Garbage 19. Nuisance — Garbage dumps to be have been held nuisances.
Appeal Allan J. Submitted Iosco, Miller, C. Rapids. February at Grand 12, 1969, Division (Docket 5,371.) Decided June 5,030, Nos. granted appeal February 10, 1970. See
Leave to
East eye resulting explosion at munic- an from an dump. Judgment plaintiff. ipal Defendant appeals. appeals from denial his motion Plaintiff for a trial. Affirmed. new Harrigan Majoros, &
Cicinelli, Mossner, Alexan- plaintiff. der, City Attorney, Egloff, Freel, N.
Michael *4 Taylor, Gollison, McGraw é Mainolfi, defendant. Amici Curiae: Joseph Petz, of of
Rita Jane Executrix the estate Twohey Benson). (by Roach, & deceased Pitz, E. City ok East Tawas Maki Municipal
Michigan Attorneys (by of Association Corporation Ralph Guy, City B. Jr., Counsel, Dearborn; poration Moore, Leonard McKee Assistant Cor- City of
Counsel, Dearborn; Charles A. City Attorney, City Forrest, Jr., Flint; W. City Attorney, City Saginaw; Nash, Vincent Corporation City Reese, Robert Counsel, Detroit; and Robert B. McClear and Ronald C. Winiemko, Corporation Detroit). Assistant Counsels, Before: P. J., and Holbrook and Danhoe, Levin, JJ. city J. Plaintiff1 sued defendant, Danhof, damages arising
East Tawas, the loss eye explosion resulting an from an while he was at municipal dump the East Tawas on December 4, upon originally negli- 1965. The claim was based gence, gross negligence but additional counts of nuisance were later added. The motion for an accelerated filed a defendant
judgment аsserting (MCLA PA 1964, [Stat No 170, 7 691.1407 Ann Supp § 3.996(107)]), govern- 1969 Cum relative immunity, mental bars the cause action. The judge stating circuit denied the defendant’s motion the aforesaid 7 was unconstitutional as it object did not fall within the embraced the title and, act therefore, defendant was not immune proceeded jury from such suit. The case ato trial solely theory plaintiff on of nuisance, after vol- untarily allegations struck his
gross negligence complaint, from the and a verdict plaintiff was rendered in favor of in the amount 1 During pendency plaintiff of these causes V. Maki Leo died Virginia order of Maki, this Court administratrix es- Maki, deceased, plaintiff. party tate of Leo V. substituted plaintiff opinion, orig- When is mentioned in this reference plaintiff, inal Leo V. Maki. *5 op Opinion the Court judgment plus defend- this From costs. $12,500, ruling alleging appealed, court erred the trial ant In from suit. addi- not immune was
that defendant tion, alleging plaintiff for a new trial motion filed the inadequate grossly was verdict the plaintiff appealed. the motion, of his from the denial appeals Subsequently, consolidated. were the two question appeal, answered he the first On plaintiff’s was well-founded. nuisance suit whether plaintiff’s city argues action was cause of The nothing negligence upon in the more than founded dump, operation action such cause of and that its PA No barred points support position out defendant In initially negligence ordinary plaintiff claimed complaint, gross amendment added in negligence ing- then his voluntarily abandon- nuisance, later proceeding to trial theories and the change only theory without aon nuisance —all allegations. the City Royston authority v. defendant cites As where 255, 260, 278 Mich Charlotte following legal proposition: court enunciates discharge functions “Acts in the per do not come within nuisance se create a which of care in aсcorded. Want otherwise neg- presents question maintenance, however, ligence only, of a nuisance, and not that danger under the must rest on inherent even which care.” best Royston supra, the case Case, we have
Since Denny Garavaglia (1952), which categories clearly recognizes nuisance, three p negligence. At 331 the last one based on Court quoted from Beckwith v. Town of Stratford (29 775), A2d wherein the court had Conn Maici Tawas ok East tiie constituting the elements nui- to discuss occasion quotation follows: sances. “ ‘Apart origin their from nuisances have resulting personal injury accident, nuisances *6 general Negligence Beven, into classes. fall three (4th ed), p note. One class includes nuisances in result from conduct which is itself a viola-
which high law, tion of authority fense, and as to them it has been held on negligence contributory is not that a de- Delaney Holding Corpora- Realty Philhern (21 507); NY 461, tion NE2d but with such nuisanсes we have no concern in this case. A second includes nuisances which are intentional, using meaning wrong that word as not that a or the existence of a nuisance was intended but that the bring creator of them intended to about the condi- tions which are in fact found to be a nuisance. The other class includes nuisances which have their origin absence negligence, in which in its essence is an falling in care. Nuisances the second class are which characterize as those we absolute contributory negligence which is not a contributory negligence defense. To hold that regards should not abe defense as them and should upon be as the last class of nuisances rests wrong in essential difference the nature of the com- Negligence mitted. consists in a failure to exercise grounded negligence, care, due and to a nuisance contributory negligence appro- an that reаson priate p 501. Winfield, Torts, Where, defense. wrong of the is conduct however, is that essence in in
intentional, the sense which we have used beyond goes that conduct a mere word, lack proper and there is not the same balance of care, person obligation duty guard of one between injury from an from such a lack and the another duty of the other not fail to exercise like care protection. in the Bohlen, his own See Studies contributory p Law of negligence The fact that Torts, against reckless mis- is not a defense as Mioh op this Court ” analogous presents a somewhat situation.’ conduct omitted.) (Citations Denny in the Case then held: The Court supports finding trial court record “The negli- through was created acts that the nuisance gence part Garavaglia.” on the Again in the case of Dahl v. Glover recognized that a 639, 644, 645, the Court origin might nuisance have its the Court said: appellant’s “We are not in accord with claim that jury might charging they the court erred by negli- maintaining
find the
gence;
of a nuisance created
injected
‘improperly
[the
or that
court
question
charged
origin
negligence]
into the case.’ The court
jury
might
its
nuisance
have
negligence,
charged
jury
that if the
contributory negligence
good
found,
so
would be a
*7
jury
defense which the
must consider.
charge
proper. Denny
“The
aas whole was
v.
Garavaglia (1952),
317;
333 Mich
Brown v. Nichols
(1953),
aas
rule
is avail-
able as
defense to an
on a nuisance
action based
by negligent
where the nuisance is caused
Denny
сonduct.
Garavaglia
(1952),
v.
333Mich
The rule
authority
weight
is contra
when there is a ‘classic’ or ‘standard’ or ‘absolute’
the established
nuisance
latter
involved. See ALR2d 1381. The
City oj?
East
Maki v.
Tawas
op
the Couet
type
to
arises when one so
nuisance
uses his land as
unreasonable
cause
interference with the
use and
enjoyment of the land of another. The classic
question
here
nuisance
because
are
there
property
conflicting
being
real
interests
no
asserted.
really
“Whether the source
a nuisance action is
negligence requires attentiveness
all
the
facts
Dahl
the action. In
v. Glover
Supreme
relying Denny Garavaglia,
Court,
the
on
v.
supra,
ligence
jury charge
contributory neg-
held that a
on
jury
as a
defense
be considered
the
although plaintiff,
proper
the
at
close of her
negligence
withdrew her count in
evidence,
relied
solely
on her count in
In
nuisance.
in-
the
change
alleged
case,
stant
with no
facts
support
plaintiff
action,
cause
amended his
complaint
to read nuisance instead of
supra,
may
Glover,
in Dahl
As
the trial court
penetrate
should
actualities
formal label
discover the
(Emphasis supplied.)
the case.”
Michigan
The brief amicus curiae of the
Associa-
Municipal Attorneys
argues
support
tion of
position
city’s
of the defendant
that nuisance cannot
negligence
be based
alone cites the
case Awad
McGolgan
“We do not hold that type brought. may of action referred to above never be proper may In case it be, so, if and, partakes of a essеntials action, *8 including contributory such defenses as that negligence. (See 7.) annotation, ALR The name (negligence nuisance) does not control the result. point gravamen that the is, however, op the Court a in tort and landlord’s breach must sound
action of repair promise does not so sound.” 1loyston Case, concludes this Court Thus, supra, care in main- that want of it holds insofar as only, question and presents tenance overruled has been nuisance, of a not that Young, Denny, by subsequent indirectly Dahl, cases, supra, plaintiff has stated cause and that the allegations though relate in nuisance even action solely contributory negligence is we hold that Further, wit, where case; in such a as defense available giving of action is to the cause rise the nuisance Young negligent Groenendal, conduct. based on Garavaglia, supra, supra, Denny Dahl v. and supra. Glover, vigorously instant case contends that thе
Plaintiff quoted categories as first or second is within the supra. agree Denny Case, We cannot category namely, which result nuisances in the first — though of law even from conduct which is a violation (MCLA § 325.291 PA No 87 to, 1965, the act referred seq. Supp 14.435(1) [Stat Ann 1969 el Cum el seq.]) given 1965, effect 28, immediate June injury question occurred December prohibit open because the statute did not 1965, dumps, required licensing. Further, but rather it implement regulations promulgated the rules regulating pub- licensing had not been act injury, required by PA at the as lished time No No amended PA 88, 4, (MCLA Supp [Stat Ann 1969 3.560 24.74 Cum precedent being (10)]) to their which is a condition given they nor had been immediate effect effective, by § governor by the of the fore- as authorized *9 City ok East Tawas Maici Opinion op the Court (MCLA § [Stat going Ann Rev 24.75 act 3.560(H)]).2 regard category, to the second nuisances With judge prop intentional, are we think the trial which erly jury question to held left this which unan special imously finding on a no thеre was inten by but vote of two tional held ten to nuisance, arising there was a nuisance out of the manner of operation, in other words Dahl v. supra. Glover, question.
We come now to the constitutional Is recovery by PA 1964, barred No 170, or, in the 7, § 7 alternative, is unconstitutional?
Section 7 states:
“Except
provided,
inas
this act otherwise
all
shall be
immune
tort
liability
agency
a
government
in all cases wherein said
engaged
discharge
is
in the exercise and
Except
pro-
function.
as otherwise
herein,
vided
modifying
from tort
this act shall not be construed as
restricting
immunity
of the state
as it existed heretofore, which
hereby
affirmed.”
question
legislature
There is no
but
what
has
authority
adopt
type
legislation,
Williams v.
Detroit
“No object, law shall embrace more than one expressed shall be in its title. No bill shall 1965, No 87, tive Code Quarterly 2 Buie at 4:15 numbers 325.1101-325.1110, p.m. They were filed Supplement with the were published 45 on Secretary February promulgated Michigan 14, 1966. State pursuant November Administra to PA op the Court passage through either on its or amended
be altered original purpose change its as deter- as to house so mined and not alone its title.” content total its decide PA must whether Therefore, this Court object expressed an No embraces title. its act reads: The title to the *10 liability municipal uniform the “An act to make corporations, political the subdivisions, state, and departments, engaged agencies in a and when its and property governmental for function, negligence; persons limit to define and caused liability liability; of the and limit the such to define proprietary engaged function; to when in a state pro- purchase insurance authorize the liability; against arising tect provide loss out such against defending claims made for certain damages sought public awarded paying officers repeal supplied.) acts certain them; parts (Emphasis of acts.” “negligence” Specifically, refers to since the title liability,” is uncon- to “tort whereas 7 refers scope the title? in than stitutional because broader There tort, is a kind is no doubt based not but there are also intentional torts negligence. the section on its face Thus, included in the title. judicial Michigan variety the of the
However, govern- dealing past with decade decisions deciding legislature immunity in the mental to resulted liability of adopt the make uniform this act to possible, agencies. such governmental at all If legislative be should not thwarted intent obvious ruling is unconstitutional. immunity Mich- history The post- pre-Williams and igan into divided is now Williams case, landmark In the Williams law. City Maki ok East Tawas supra, Supreme Detroit, our Court wrote fascinating differing opinions, but three ultimate prospectively of which was to overrule effect common-law performing rule that cities while governmental function are immune judge case, The trial in that Victor an J. later wrote article entitled Baum, “Govern- Immunity Michigan mental Recent Devel- —Some in opments” printed Michigan which was State May pp Journal, 37-48, Bar wherein he sum- pre-Williams marized the law as follows: put pre-Williams “To nutshell, law a picture and one of near-total for all levels government engaged while By legislation function. there were exposure injuries resulting small areas of from roads and from defective maintenance of negligent operation airplanes. of autos and respect only “With to road maintenance, government exposure. lesser levels had state continued to be immune. tiny judge-made “Also there were the islands *11 exposure trespassory for direct act and nuisance. lаrge judge-made “There was another rather area exposure arising proprietary activity out and exposure government, extended to all levels of
including the state.” supra, Case, Williams was followed the same year by Highway McDowell v. State Commissioner (1961), Supreme 365 Mich 268, in which the held that insofar as the state is concerned, the doc- immunity government, pres- trine of of state as it ently Michigan, legisla- exists in is a creature of the pattern legislative ture, based on of deliberate by which choices, cannot be altered the Court. Additionally, Supreme Sayers the Court held in (1962), v. School District 1, No. Fractional immunity Mich 217, that school have districts 18 op the Court Myers government, agencies of and in state v. County Auditor Genesee townships
Supreme
counties,
Court said that
villages
governmental
not
do
have
when
engaged
governmental
Along
in a
function.
way,
holdings
were the
there
Lewis Genesee
County
County
Mich Munson v.
110,
(1963), 371 Mich
504,
Menominee
Sherbutte
City (1964),
Marine
It is this now historic adopted legislature that the PA No in an 1964, 170, attempt govern- uniform make engaged mental functions. when Attorneys vigorously argued amicus curiae have that PA position grants § No all 1964, 170, 7, governmental agencies immunity from lia- all tort bility engaged discharge when in the exercise and of a function and does not violate despite art 4, 24, Const fact title that act is limited to part First, it contended that the last art namely, 24,3 “as determined its total content language and not alone its title,” provides strong in the 1908 Constitution, rationale position for the that PA No 7, is valid part original legislative includable intent purpose. The answer to that contention is that two distinct prohibitions language are stated in 24. The new subject, modifies the “bill,” the second sentence meaning and does not affect the of the first sentence subject where the is “law.” aro Tlie *12 art comparable prohibitions 5, §§ 22. in the Michigan Constitution of 1908 v. East Tawas ok Maki op the Court object arguing that if one can find the Further, reading act, the title and the then a statute fairly object no reflected therein and so one is is the misled object does not state the a title reasoning. accurately, circular is to seek find additional comfort Amici curiae opinion v. Ginther in Smith of Justice Brennan (1967), 208. It is sufficientanswer 379 Mich point opinion to out that Justice Brennan’s opinion, dissenting furthermore, was and, of was the not question constitutionality. to directed questionable Additionally, legis- it is whether grant immunity all to from tort liabil- lature meant ity excep- pointed previously4 out some in 7. As immunity even existed tions pre-Williams being of them
times, two in the areas trespassory acts nuisance. of direct constitutionality of 7 cannot think We applying if is to all be construed sustained liability when the title limited tort point agreе on behalf made the brief We with the mig'ht legislators have intervenor that been voting affirmatively, thinking by the title into misled from desir- grant wishing go yet so far as im- able, munity battery, assault and false in- arrest, trespass, privacy, nuisance, direct vasion (1914), Secretary v. State torts. Vernor other Leininger Secretary 160; 179 Mich State Motors 644, 649; 316 Mich Continental Cor- Mushegon Township poration possibility limiting § to remains the There statutory By negligence.” “based tort conceivably might read in this Court construction supra. Judge article, Baum’s See *13 18 Opinion the Court negligence,” thereby limiting on the words “based scope § that it is not so broader than the title. If this Court were to read into 7 the words negligence” might plaintiff’s “based on this bar recovery actually as his cause action in nuisance allegations negligence. based on None p Judge cases relative to nuisance cited at 38 in supra, Baum’s article, involve a nuisance based on negligence governmental body, nor a so the courts presented governmental immunity were not with the question. Supreme definitely Since the Court has negli- made distinction between nuisance based on gence and other kinds of when nuisance the defense contributory negligence (Denny, of Dahl, was involved
Young, supra), it is reasonable and consistent arising to make such distinction between nuisance types out of and other when nuisance making exceptions to the rule of im- munity. illogical, To hold otherwise would be since may support the same facts a cause of action in by negligence support nuisance created a cause of action in judge rejected possi- The trial considered and this
bility ju- as “a strained construction” and “extreme legislation.” agrees. dicial With this view, Court judge The trial concluded that was severable from the remainder of the act and struck it as un- opinion, constitutional. While we affirm his do we imрly not might that none of the other sections purposes violate Const art 24. For the unnecessary of this case, we deem it on the rule constitutionality of each sections of PA No 170. question adequacy
We turn now to the of the plaintiff appeal. verdict which raised in his judge ruling plaintiff’s trial on motion for new plaintiff trial and additur found was Maki East Tawas ok years of children, minor man without married days age, work as a result lost less than who and at the time the trial was accident previously job Plain- he had held. same the tiff’s good that he was a worker foreman testified employ. him in to continue his that he intended and The pay testimony indicated that his take home slightly per the accident and was week before $78 out-of-pocket higher time of trial. The med- at the hospital together expense was This There was in $784.44. ical and with the
wage $1,096.44. loss totaled capacity damage, pain earning and suffer- addition, injury permanent ing, to be considered. then held that the verdict of trial court
The jury’s citing discretion, was within the $12,500 follows: 11 ALR3d Adequate “‘[d] — pitchfork; $18,677 man assaulted with loss eye; bridgework nose; of one fractured dental de-
stroyed; nent loss of showing perma- face; laceration of no earning capacity. (CA3 Doivd v. Webb 1964), 337 F2d 93. Inadequate £££[e] — 30-year-old, $6,000, $12,000; increased to semi- earning per skilled workman loss month; about $250 Tyler eye. Casualty of left v. United States Com- (La pany App, 1961), 127 So 2d 804.’” The court further stated that the verdict could judicial be said to shock the conscience, nor to be erroneous as a matter law.
Under circumstances, these will not say jury judge and trial were error. George Osberry See Teller 118; v. Watters Mich public question being no costs,
Affirmed with involved. J., concurred.
Holbrook, 2.09 Apr Dissenting Opinion by P. J. Levin, (dissenting). agree I with cannot P. J. Levin, disposition majority’s of this case. plaintiff commenced this action to recover The personal he at a sustainеd while operated by garbage dump the defendant. He jury verdict. obtained municipal corporation, defendant,
The claimed recently immunity under PA 170.1 enacted No Section 7 of this act2 immunizes agencies engaged from tort when in the discharge exercise of a function3 exceptions pertinent (see with not here footnotes 19). 10 and plaintiff challenged the defendant’s claim ground on the act violates
one-object-expressed-in-its-title provision Mich igan’s constitution. Const art judge majority
The trial and the of this Court adopted plaintiff’s argument5 have Section 7 mental heretofore, pressed in than a through mined the that the first is modified alone constituted vided wherein *15 discharge stricting [101]— revision (Stat (1928), 242 The convention comment states 1MOLA 5 agree I “See. 7. It “No law shall embrace by Ann 1968 Cum herein, by has not been asserted that 3.966[115]). governmental combining parts its title.” either said the Constitution: “as its its title. of §§ with the by which the total cоntent Exeept immunity sentence governmental a 691.1401-691.1415 the house governmental exercise shall following aet shall No bill majority Supp 3.996[107]). inas so function. of art be immune from tort of the as of and shall this act otherwise more §§21 to determined a agency is not be clause 4, 24, in proprietary (see state change not alone function. hereby be See rejecting (Stat than one , that altered or amended on the added Curry construed its Ann 1968 Cum the 1963 affirmed.” engaged by operation well by art tort the defendant’s contention Except original to object, its total its title.” as the second City Highland the second sentence provided, liability as footnote Constitution as otherwise of the MCLA of purpose modifying content and present Supp exercise as it existed in all eases shall all its 16) city as sentence, 691.1407 SS 3.966 passage govern was “a [1908] rather be or re deter- dump Park pro not ex- in City ok East Tawas Maki v. Dissenting by Levin, P. J. is held to this act he unconstitutional because it “shall im agencies that be provides liability” when mune from tort discharging gov whereas the title of ernmental function the act6 states that is an to make narrowly more act liability uniform agencies the change is involved.” substantive See United Constitution. No Department Company Gypsum Revenue States opinion dissenting opinion (majority Edwakds, J. and Black, J.). expresses present concept The a different seeond sentence of section, en- than first sentence of a difference which was the tirely of scured function were in the sentences two different sections clear when two may have been the but which now somewhat Constitution ob- concepts the by the both in same section. A inclusion of legis- the first sentence is to alert members of the the legislation publie concerning the lature and particular to fact object purpose may, been introduced. The оf a bill has object however, function of expressed in The be narrower than its title. prevent ehange purpose to the second sentence is in after introduction. laws. The first sentence concerns The seeond sentence concerns original purpose if of a bill as introduced is hills. Even altered or amended tutional the which would passage through in its the house it is unconsti- expressed object in A construction of if its is not its title. language by the 1963 Constitution to the second sentence added allow total content of a law to be considered de- object expressed in its has been its title would termining whether superfluous sentence, thereby effecting (con- altogether to the first make trary comment) change. a fundamental substantive the convention deciding look at the total content of a law whether If we could that content express expressed title, no law could fail its is its Clearly supplemented “total content.” object in as so its title passing be on a claim that cannot considered the “total content” the requirement object that the of a law must be law violates the expressed in the title. purpose original Only that the of a bill has where it asserted or amendment after its changed alteration introduction and been may made to the total content. passage reference be before PA No reads: title of municipal liability corporations, uniform the “An act to make state, departments, subdivisions, its political and the property governmental function, for engaged in a when liability; by negligence; limit such persons to define and caused engaged pro- when in a the state to define and limit purchase function; insurance prietary to authorize provide arising liability; protect against out of such loss paying against public officers and defending damages and mаde certain claims them; repeal acts sought and to certain or awarded parts of acts.” *16 Míen 109 18 128 Opinion by Levin, Dissenting P. J. persons property
injuries and caused to negli supplied.) (Emphasis gence. point
My colleagues out that there are intentional negligent “tort,” torts. The term in its as well as generally liability
accepted meaning, does, course, include wrongs for caused acts or omissions that negligent, analysis, result, are not with the in this purports exempt governmental act that 7 of the to liability wrongs in for from not described commonplace act’s title. But it is to refer the to the usages, also liability liability for thus, as tort and,
phrase liability” every many day “tort is,
synonymous negligence liability. with immunity liability tor- for Governmental personal property damage tiously injury caused slowly spirit contrary and is is times away by judicial being legis- whittled decision and country.7 However, lative action across the Michigan legislature opted for codification of this passed act. when, 1964, constitutionality duty to sustain the act’s
It our language should, end, used its constitu- and, we can if if tionality. preserve possible, be construed to clearly legislature to deal The intended title, in the with at least that is headnoted governmental agencies namely, by negli- persons property caused judicial legislation gence. is, therefore, It liability” first sentence “tort read the words negligence; moaning that much of 7 Immunity, particularly tive Changing scholarly critique of the doctrine Yale 1925); mental (1964); also authorities Sovereign Immunity Overruling, L J Liability Borehard, Concept pp St and Judicial in Tort Louis Governmental (1926, Sovereign U mentioned (1966); (pts L 1927). Legislation in the Public, Responsibility, J 1— Responsibility 3), 34 Yale will Immunity, Stare Littlefield, in footnote (1964); be found James L 13 Defense in Tort A28. Context J 1, 129, 229 Borehard, Decisis, U G-. comprehensive (pts Hamill, L Sovereign L J 1-3), 36 Prospec- Govern- F (1924, *17 Maki 129 Tawas ok East P. Z. Opinion by Levin, Dissenting Indeed, intended. not to clearly so legislature the words defeats the judicially legislative read these purpose.
In several cases where the Michigan Supreme body was confronted with the claim the that adopted of a statute exceeded its title the Court so its narrow construction the statute that con- its That what we tent would not exceed title.8 is can and, do in mind our having to appropriately duty is we preserve constitutionality, the act’s that what indo this case. should the first of 7 § sentence to for
Limiting does any not create the incongruity read as a whole: act definitions; contains
Section none relate to the issues before us. 610and 811concern through govern §
Sections i.e., mental for failure to care, exercise due negligence.12 Ogle Company (1952), Arnold v. Construction 333 Mich 663; Company (1953), 539; Scott v. Alsar 336 Mich Booth v. Eddy County Rogers (1878), 245; 38 Mich v. Kent Board Road (on rehearing) (1948), 661, 668, Commissioners 319 Mich 673. Cf. People (1929), 393, 397; Baptist v. Smith American 246 Mich Mis sionary Union v. 348; Peck 10 Mich Bates Nеlson 9 10 (Stat Supp MOLA 691.1401 Ann 3.996[101]). 1968 Cum § § provides Section 2 governmental agency having that “each jurisdiction any highway highway over shall maintain the rea repair reasonably sonable it so that safe and convenient for
public (Stat travel.” MCLA 691.1402 Supp Ann 1968 Cum § [102]). 3.996 governmental Section no agency § states that shall injuries be damages liable for by or highways” caused “defective governmental the agency unless knew inor the exercise of rea diligence sonable have should known of the the existence of defect and repair had injury 3.996[103]). reasonable time to plaeo. before took MCLA (Stat 691.1403 Supp Ann § 1968 Cum Sec § requires tion 4 the reason of a written days notice within 60 from the time of injury as a any recovery injury by condition to sustained any highway.” “defective (Stat MCLA 691.1404 Ann § Supp 1968 Cum mental 3.996[104]). provides Section 5 govern § agencies shall be damages resulting liable for “negligent operation” from the governmental by employees aof by motor gоvernmental vehicle agency. owned MCLA 691- § (Stat .1405 Ann Supp 3.996[105]). 1968 Cum imposes Section 6 Levin, 3?. J. Dissenting Opinion 2) footnote states (see of 7§ sentence
The second first sentence Unlike construction. a rule of purport change sentence does second 7, the law.13 existing
upon Mutual Insurance acquiring action ligence. The under i.e., to while seq., Ann 1968 the 1958 condition” structive condition. mental of the v. v. Perkins the tence negligence.” MCLA 691.1408 except pre-act of sections statutory publie even or construed as limited tort 160 Mich the officer against him section and are gine necessarily preclude *18 [106]). [108]). (Case Annotations) § 11 And, [12] County engage attorneys to property § large also read as officer or injury and Section The liability, we are not inhibited from It is not actions means intentional and other tort 7 so as to if Works v. Eev of acting within the companion buildings as therein publie “reasonably if the words tort agency in actions for § language number оf cases decided knowledge action for 134; of § knowledge Cum 8 (1882), was aof tort 2 intend two different or 9.121) MCLA 691.1406 liability, provides that for 8 damage.” Kalamazoo "as a unknown employee while in the through provides cases Township Malloy preserve employee repealed by immunity. Supp meaning only publie personal under their damage resulting from expressly provided, modify 48 Mich Company but it would of §§ provides result agencies necessary” §§ injury are collected to “tort § as that § failed 4. v. still judicial for a draftsman to 224.21, represent 3.996(114)]). building if the that the Clearly that (1943), 304 of as to a 2 Township seope Time of the liability” § through See McDowell caused operative Kimball constitutionality defeet and for governmental 14 which control and term is used any 72; governmental agency 242.1 et interpretation (Stat Ann 1968 of his the meanings. of injury appear does not remedy (Stat Ann 1968 Cum obligation officers under eivil action for Seeger Village in judgmеnt or act of protect is 4 second Mich as used in the second sentence (1883), 52 course CL volumes 6 and property parallels implied Walker for liability 170 Section authority. seq.; “caused that Mich construing agency defective CL or v. v. State permit 1948, open repeat a 442; Township “dangerous negligence (MCLA agencies See Guastello sentence employees of his 1948, of the the see the for that act 170 does condition reasonable or restrict App 120, in (1889), Mich 448. 6 repair for use as damage CL § Mich had actual by negligence” of Fulton Iron Cum follows gist an examination second 224.21 the first highway Highway damages § well as word the first sentence personal The second employment and act. § 1948, of 242.1 may indemnify are authorized 691.1414 this would could of 146; 6A, Supp Kart 77 or defective Supp of “caused sentence of the format the the State’s time after (Stat v. Citizens of are liable § et maintain sentence, negligent CL 1948 the same members Goodrich Commis- 242.1 awarded to take well injuries govern? or con- Medina (1910), former seq. § Thus, [Stat 3.996 3.996‘ neg Ann sen- not, En by be of or et East Tawas Maki Dissenting Opinion Levin, P. J. governmental agencies 9 authorizes Section. to protect govern insurance” “liability
purchase employees “against loss on agencies mental or it, secured any judgment against account them, for personal claim injury prop out any arising is no to limit There need damage.”14 erty covering governmental agen insurance purchase just for because first sen cy only 7 is exempt construed lia tence purpose insurance bility nonliability. Fur against liability, not protect 9,15 sentence of thermore, providing the second will not of insurance constitute purchase that otherwise available to defense any “a waiver defense of the claim,” agency may be purchased that insurance areas suggests liability16 of doubtful the procedure bringing 10 states
Section concerns limita the State claims of action17 tions under this act provides “Claims
Section available to claims subject to all of the defenses are Myers County 268; Genesee Auditor sioner act approval time of (1965), 375 8. At the considerably from differed State’s status (Williams corporations municipal such other *19 City counties, townships Detroit [1961], 231), 364 Mich v. villages County 1). (Myers [1965], Mich v. Genesee Auditor 375 14 3.996[109]). (Stat Supp Ann 1968 Cum MOLA 691.1409 § § 3.996[109]). (Stat Supp Ann 1968 15 MCLA 691.1409 16 Cum § § corporations Moreover, municipal other judicial long by been time decision for agencies have liable for performance proprietary arising out of of a eonduet tortious function. Auditor, supra, Myers County 9;p v. Genesee Dohm v. nothing Township in act Acme There is concerning liability; (MOLA such but see 13 691.1413 170 § § [Stat 3.996(113)]) eliminates the State’s Supp 1968 Cum Ann § performance proprietary liability arising out of its of a for interpreted Nevertheless, will be should no doubt function. § agencies purchase than the permit other State liability arising liability against protection tortious insurance for discharge proprietary of a function. from (Stat Supp 3- 691.1410, Ann 17 MCLA 691.1411 1968 Cum § §§ § .996[110], 3.996[111]). Mich Dissenting Opinion by Levin, P. J. sounding brought against private persons.”18 in tort (Emphasis supplied.) neg- This section does not interpretation § ative the of the first sentence of 7 Clearly, which I advocate. pre-act a defense that under only 170 law would be available an action particular for a intentional or extrahazardous tort § not, could reason used to be defend negligence §§ an action for under or 6 (defective highway of a condition build- ing) § (negligent operation or under 5 of an auto- mobile). regard Without to whether the first sen- liability only § negligence, of 7 tence is limited to for negligence those defenses available in actions can gist negli- be asserted where the of the action is gence. from
Section 13 eliminates State’s liаbility damages arising performance for out of the subject proprietary function,19 of a matter ex- (see 6). pressly with in the title dealt footnote If the decision of our held, this case I hold, as would empts that the first of 7 ex- sentence negligence, defendant from necessary it would then be for us to consider and charged decide whether the acts and omissions against the defendant are nevertheless actionable. Plaintiff contends that even if the first sentence of exempting governmental 7 is read as negligence, may still recover complaint grounded because its amended response In nuisance and not plaintiff’s defendant asserts that the basis of the alleged failure nuisance action is the of the defend- i.e., ants to have care, exercised due and, plain- thus, however denominated, the action is tiff cannot recover.20
19 MCLA
20
MOLA
Cf.
Royston
§691.1413
§691.1412
(Stat
(Stat
Charlotte
Aim 1968 Cum
Ann 1968 Cum
Supp
Snpp
3.996[113]).
3.996[112J).
255, 260;
*20
City
133
Matíi v.
Tawas
оk East
P.
Dissenting Opinion by
X
Levin,
did
law of governmental
common
nuisance
from the classic
insulate governments
not
of an interest
for invasion
an action
action,21
is,
defendants
Recovery
land.22
suffered as
personal
allowed for
also
or trespass”
“direct act
of the defendant’s
a result
upon
public way.24
or
lands23
plaintiff’s
upon
the Michigan
to believe
reason
good
There
im
170 intend to create
not
act
did
legislature
law where it did
exist
in an area of the
munity
Detroit
City
in Williams v.
decision
before
of
view,
If
the correct
134
by Levin,
Dissenting
P. J.
Garbage dumps have been held to be nuisances.26
plaintiff points
gar
out
the defendant’s
place
dump
bage
is a
to which the
is invited
allowing recovery
and also relies
cases
on the
theory
personal injuries
of nuisance where
were
premises
alleged wrongdoer.27
suffered on the
Additionally,
question
there is
substantial
in this
charged against
case whether the acts or omissions
strenuously
plaintiff
defendant should,
as the
regarded
something
constituting
contends, be
ordinary negligence,
more than
i.e., reckless, inten
abnormally dangerous
tional or
conduct.
disparate
To reconcile these at once both
overlapping
super-
theories of tort
and the
imposed legislative purpose
exempt governmen-
tal
would
an
involve
is an
this
heed his
excursion into what Dean
warns
Prosser
“impenetrable jungle.”28 Having
in mind that
opinion
dissenting
precedential,
is not
I will
warning.
262.
Mich
v.
McColgan, supra.
Daniels erally, 18 McQuillin, Municipal Corporations
discussing
p 502;
47; McQuillin,
Insurance
trict
Mich
a,
356 Mich
#3,
Harper
[26]
Prosser, Law of
[28]
See
53.112; Mechay
operation
v.
Bluemer See v.
Smith Green
Prosser,
Royston City
City
399,
Company
Board
515.
Grand
Township
City
of
of
James,
410-416;
Law of
“nuisance”
Bay City
v.
But see
Cf.
Saginaw
Rapids, supra;
Municipal Corporations
City
dump
v. State of
Bay
Awad v.
Education
Torts
the Law of
City
Torts
of
of
Munson
Pound
City, supra;
Charlotte, supra;
(1949),
exception
Central Oil
Ann Arbor
(3d
McColgan
(3d
regulated
Detroit,
ed),
Michigan,
v. Garden
v.
Williams ed),
Torts,
City
County
87, p
Board
Daniels v. supra;
(1942),
&
(1959),