Rogers v. Kent Board of County Road Commissioners, 30 N.W.2d 358

Rogers v. Kent Board of County Road Commissioners

30 N.W.2d 358

Mich.

1947

Check Treatment

Lead Opinion

On Rehearing.

Concurrence Opinion

Btjshnell, J.

(concurring). After an opinion was filed in this' cause á- rehéaring was granted on the question of defendant’s governmental immunity from liability, for acts of trespass and negligence by its agents and’employees. Although an attempt is made in the briefs to secure reconsideration of other phases of the case, the order granting rehearing limits the scope of our present inquiry.

The facts are sufficiently stated in the original -opinion. It is, also pointed out therein that section 24 of Act No. 135, Pub. Acts 1939, as amended by Act No. 237, Pub. Acts 1943 (Comp. Laws Supp. 1943, §13862-26,' Stat. Ann. 1943 Cum. Supp. § 27.3548 [24]) was not repealed until 90 days after-the. adjournment of the regular session of the legislature on June 7, 1945. See Act No. 87, Pub. Acts 1945. Therefore, at the time of the accident in question (July 23, 1945) the 1943 act which waived governmental immunity was in effect. That act was silent as to waiver of the governmental immunity of counties and only provided for the hearing and determination of claims in the court of claims. ' -

In Maffei v. Berrien County, 293 Mich. 92, this Court quoted with approval the following from 14 Am. Jur. p. 216, § 49:

“ ‘The principal ground .upon which it .is held that counties are not liable for damages in action for their neglect of public duty is that- they are involun *669 tary political divisions of the State, created for public purposes connected with the administration of local government. They are involuntary corporations, because created by the State, without the solicitation or even the consent of the people within their boundaries, and made depositaries of limited political and governmental functions, to be exercised for the public good, in behalf of the State, and not for themselves. They are in fact no less than public agencies of the State, invested by it with their particular powers, but with no power to decline the functions devolved upon them, and hence, are clothed with the same immunity from liability as the State itself.. In other words, the rule of nonliability for torts is dictated by public policy. Since a, suit against the county is in effect a suit against the' State, an action will not lie without the consent of the legislature.’ ”

Was such consent granted by the waiver of immunity clause in the 1943 act, supral

Unless during the period covered by the life of section 24 of this act, the legislature intended to preserve greater immunity in a case involving a county than that involving the State, it must be held that the waiver of governmental immunity extended to claims against counties. Buj; it is argued that the only forum provided for the hearing of such claims was a court of claims. This argument ignores that portion of section 24 which expresses the consent of the' State to have its liability for torts “determined in accordance with the same rules of law as apply to an action in the circuit court against an individual or a corporation.”

If any waiver of immunity as to counties existed, such waiver must be. found within the language of the 1943 act, and it also, .must be determined that .actions against counties could, under its language, be brought in the circuit court.

*670 Was there any intention on the part of the legisla-' tnre to deprive the State of the defense of governmental immunity and leave this same defense available to its political subdivisions ? Such was the question resolved in Bernardine v. City of New York, 294 N. Y. 361 (62 N. E. [2d] 604, 161 A. L. R. 364, decided July 19, 1945). That court said:

“Section 8 of the court of claims act says: ‘The State hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court, against individuals or corporations.’ The gist of this waiver and consent of the State has been operative since 1929, and is limited only by the incidental procedure prescribed in article 2 of the same act. None of the civil divisions of the State— its counties, cities, towns and villages—has any independent sovereignty. See N. Y. Const, art.'9, § 9; City of Chicago v. Sturges, 222 U. S. 313, 323 (32 Sup. Ct. 92, 56 L. Ed. 215, Ann. Cas. 1913B, 1349; Keifer & Keifer v. Reconstruction Finance Corporation, U. S. 381 (59 Sup. Ct. 516, 83 L. Ed. 784). Cf. Gaglio v. City of Neiv York (C. C. A.), 143 Fed. [2d] 904. The legal irresponsibility heretofore enjoyed by these governmental units was nothing more than an extension of'the exemption from liability - which’the State possessed. Murtha v. New York Homeopathic Medical College & Flower Hospital, 228 N. Y. 183, 185 (126 N. E. 722). On the waiver by the State of its own sovereign dispensation, that extension naturally was at an end and thus we were brought all the way round to a point where the civil divisions of the State are answerable equally with individuals and private corporations for wrongs of officers and employees,—even if no separate statute sanctions that enlarged liability in a given instance. Holmes v. County of Erie, 291 N. Y. 798 (53 N. E. [2d] 369). Of course, the plaintiff in such a case must *671 satisfy all applicable general statutory or charter requirements in the way of presentation of claims, notice of injury, notice of intent to sue and the like.

“The plea which was most often made for the immunity of the civil divisions of the State was an assertion that officers and employees thereof—when engaged in the discharge of so-called governmental functions—acted as delegates of the State and not in behalf of any municipal master. Murtha v. New York Homeopathic Medical College & Flower Hospital, 228 N. Y. 183, 185 (126 N. E. 722). On this former basis, it is possible to suggest that the State has now laid itself open to suit for wrongs of officers or employees of its civil divisions. But any view point of that kind would be vain, since the argumentation that had been contrived as a front for the doctrine of governmental immunity did not survive the renouncement of that doctrine. Cf. Miller v. City of New York, 292 N. Y. 571 (54 N. E. [2d] 690).”

■ See other authorities annotated in 161 A. L. R. p. 367 et seg.

In the original- opinion, this Court held that the judgment of the circuit court dismissing the cause of action should be reversed and the cause remanded for such further proceedings as shall be found necessary. On re-examination we adhere to our former conclusion.

Reid, J., concurred with Bushnell, C. J. Boyles, J.

I agree with Mr. Justice Bushnell in affirming our previous opinion for reversal, but the case should be submitted to the jury on the ground that governmental immunity is not a defense which a county may interpose against liability for a continuing trespass. See Ashley v. City of Port Huron, 35 Mich. 296 (24,Am. .Rep. 552); Ferris v. Board of Education of Detroit, 122 Mich. 315; Robinson v. Toivnship of Wyoming, 312 Mich. 14.

*672 But I do not agree that Act No. 135, Pub. Acts 1939, the court of claims act, and Act No. 237, Pub. Acts 1943, waiving immunity for the State by amending section 24 to said court of claims act, apply to suits against counties under the jurisdiction of the circuit court. I think that said acts apply only to claims against the State which come within the jurisdiction of the court of claims.

The ground on which the constitutionality of the 1943 amendment to section 24 of the court of claims act was upheld in Benson v. State Hospital Commission, 316 Mich. 66, as against the assertion that said section 24 was not within the title of the court of claims act, was as follows:

‘ ‘ The title of the court of claims act broadly refers to the jurisdiction of the court over all claims that may be asserted against the State, and, in a general way, to the powers and duties of the court. Immunity of the State from liability, for torts alleged to have been committed by its officers and employees, on the ground that the alleged tortfeasors were engaged in a governmental function, is a matter of defense which the State, in the absence of any statute to the contrary, may interpose in any suit brought against the State in the court of claims. It is a matter of defense which, if and when interposed by the State, must be considered and passed upon by the presiding judge in the court of claims. This is,an essential part of the powers and duties granted to or imposed upon the court, to consider, and determine, whether the defense is a bar to the suit. # * #

“The question as to whether the State might interpose the defense of governmental immunity from liability as a bar to recovery in a suit against the State in the court of claims, is essential to the jurisdiction of that court, and the powers and duties of the presiding judge. In the court of claims act as *673 originally enacted in 1939, section 24 was inserted by tbe legislature for tbe obvious purpose of guiding tbe court in those cases in which the State might seek to defeat the claim by interposing the defense of governmental immunity.”

The same reasoning would not apply to suits against counties in the circuit court. Section 24, as amended by Act No. 237, Pub. Acts 1943, would not be within the title of the court of claims act if construed to apply to governmental immunity by counties, in cases under the jurisdiction of the circuit court. The scope of the court of claims act is plainly set forth in its title, as follows:

“An act to create a court of claims; and to prescribe its jurisdiction, powers and duties, the practice and procedure therein, and the time within which actions against the State and any departmént, commission, board, institution, arm or agency thereof may be brought. ”

For the above reason, I do not agree that section 24 of the court of claims act as amended in 1943 in itself expressly waived the defense of governmental immunity of counties from liability for the negligence of its officers, agents and employees. But in the instant case the plaintiff’s declaration is planted both on trespass and negligence. It is stated in the earlier opinion written by Mr. Justice Reid :

“The court dismissed plaintiff’s cause of action, ruling that the action was plainly an action based upon negligence, that there was no basis for any finding of trespass and that the defense of governmental immunity applied to the facts set forth in plaintiff’s declaration.”

I agree that the trial court erred in -that respect, and that if the-proofs adduced by the plaintiff should warrant, the plaintiff should have the' right to go to *674 the jury on the ground that the defendant might be held liable in damages for a continuing trespass. On that ground alone, I concur in setting aside the order of the trial court and to the granting of a new-trial, with costs to appellant.

Sharpe, North, Dethmers, Butzel, and Carr, JJ., concurred with Boyles, J.

Concurrence Opinion

I agree with Mr. Justice BUSHNELL in affirming our previous opinion for reversal, but the case should be submitted to the jury on the ground that governmental immunity is not a defense which a county may interpose against liability for a continuing trespass. See Ashley v. City of Port Huron, 35 Mich. 296 (24 Am. Rep. 552); Ferris v. Board of Education of Detroit,122 Mich. 315; Robinson v. Township of Wyoming, 312 Mich. 14. *672

But I do not agree that Act No. 135, Pub. Acts 1939, the court of claims act, and Act No. 237, Pub. Acts 1943, waiving immunity for the State by amending section 24 to said court of claims act, apply to suits against counties under the jurisdiction of the circuit court. I think that said acts apply only to claims against the State which come within the jurisdiction of the court of claims.

The ground on which the constitutionality of the 1943 amendment to section 24 of the court of claims act was upheld in Benson v. State Hospital Commission, 316 Mich. 66, as against the assertion that said section 24 was not within the title of the court of claims act, was as follows:

"The title of the court of claims act broadly refers to the jurisdiction of the court over all claims that may be asserted against the State, and, in a general way, to the powers and duties of the court. Immunity of the State from liability, for torts alleged to have been committed by its officers and employees, on the ground that the alleged tortfeasors were engaged in a governmental function, is a matter of defense which the State, in the absence of any statute to the contrary, may interpose in any suit brought against the State in the court of claims. It is a matter of defense which, if and when interposed by the State, must be considered and passed upon by the presiding judge in the court of claims. This is an essential part of the powers and duties granted to or imposed upon the court, to consider, and determine, whether the defense is a bar to the suit. * * *

"The question as to whether the State might interpose the defense of governmental immunity from liability as a bar to recovery in a suit against the State in the court of claims, is essential to the jurisdiction of that court, and the powers and duties of the presiding judge. In the court of claims act as *673 originally enacted in 1939, section 24 was inserted by the legislature for the obvious purpose of guiding the court in those cases in which the State might seek to defeat the claim by interposing the defense of governmental immunity."

"An act to create a court of claims; and to prescribe its jurisdiction, powers and duties, the practice and procedure therein, and the time within which actions against the State and any department, commission, board, institution, arm or agency thereof may be brought."

For the above reason, I do not agree that section 24 of the court of claims act as amended in 1943 in itself expressly waived the defense of governmental immunity of counties from liability for the negligence of its officers, agents and employees. But in the instant case the plaintiff's declaration is planted both on trespass and negligence. It is stated in the earlier opinion written by MR. JUSTICE REID:

"The court dismissed plaintiff's cause of action, ruling that the action was plainly an action based upon negligence, that there was no basis for any finding of trespass and that the defense of governmental immunity applied to the facts set forth in plaintiff's declaration."

I agree that the trial court erred in that respect, and that if the proofs adduced by the plaintiff should warrant, the plaintiff should have the right to go to *674 the jury on the ground that the defendant might be held liable in damages for a continuing trespass. On that ground alone, I concur in setting aside the order of the trial court and to the granting of a new trial, with costs to appellant.

SHARPE, NORTH, DETHMERS, BUTZEL, and CARR, JJ., concurred with BOYLES, J.