SHERBUTTE v. CITY OF MARINE CITY
Michigan Reports
November 2, 1964
Rehearing denied February 2, 1965
374 Mich. 48
Calendar No. 84, Docket No. 50,067
TORTS—POLICEMAN—GOVERNMENTAL IMMUNITY OF MUNICIPALITY. A police officer is personally liable for his personal torts committed in the course of his employment, but the political subdivision which employed him was not liable therefor on the ground of respondeat superior at time of enactment of statute empowering employer to indemnify him for judgments obtained against him, since it could not then be compelled to respond because of its governmental immunity (PA 1951, No 59).
- MUNICIPAL CORPORATIONS—STATUTES—INDEMNITY OF POLICEMAN FOR JUDGMENTS FOR TORTS.
The statute authorizing a political subdivision to indemnify a policeman for any judgment recovered against him for torts he committed while engaged in the performance of his duties without rendering the political subdivision liablе in law was directed against a presumed tendency of a jury to return a larger verdict against a public corporation than against a policeman only (PA 1951, No 59).
- COURTS—GOVERNMENTAL IMMUNITY.
The doctrine of governmental immunity, made by the courts, may be abrogated by courts.
- MUNICIPAL CORPORATIONS—POLICEMAN—TORTS—CITY AS PARTY.
A city, as employer of policeman who is claimed to havе used unreasonable force in arresting plaintiff on October 6, 1961, held, improperly discharged as party defendant in action for alleged tort, notwithstanding provision of statute that a political subdivision as employer of policeman should not be made a party defendant in action against policemаn for torts he may have committed while in the performance of his duties (PA 1951, No 59).
- ARREST—USE OF FORCE.
Police officers must exert the reasonable force necessary to perform their important duty to society in the apprehension and confinement of malefactors.
REFERENCES FOR POINTS IN HEADNOTES
[1, 3, 4] 38 Am Jur, Municipal Corporations §§ 620-622.
[2] 37 Am Jur, Municipal Corporations § 130.
[5] 5 Am Jur 2d, Arrest §§ 80, 81.
[6] 14 Am Jur, Costs § 91.
No costs are allowed on appeal from trial court‘s order dismissing action against city by plaintiff who sought damages because defendant policeman had used unreasonable force when he arrested plaintiff on October 6, 1961, the construction of a statute being involved.
DETHMERS and KELLY, JJ., dissenting.
Appeal from St. Clair; Kane (Edward T.), J. Submitted April 20, 1964. (Calendar No. 84, Docket No. 50,067.) Decided Nоvember 2, 1964. Rehearing denied February 2, 1965.
Case by Angus Sherbutte against City of Marine City, a municipal corporation, and Joseph Valla for personal injuries sustained October 6, 1961, from unreasonable force during arrest. Action against city dismissed on motion. Plaintiff appeals. Reversed and remanded.
McKoan & McKoan, for plaintiff.
Touma, Watson, Andresen & Kelly, for defendant city.
O‘HARA, J. This case requires the interpretation of PA 1951, No 59.1 At the time of the enactment thereof Michigan recognized the broad concept of governmental immunity from tort liability. As to political subdivisions of the sovereignty it recognized also the distinction between “governmental” and “proprietary” functions. There were additionally specified arеas in which even the State itself was legislatively rendered liable for its negligence. The foregoing resume of the then extant case and statutory law is relevant to an examination of the legislative intent at the time of the passage of the statute concerned. The involved provisions of the act read:
“Sec. 1. In case an action is brought against a policeman of a political subdivision of this State for torts, * * * while such policeman is engaged in the performance of his duties * * * the political subdivision * * * may indemnify such policeman for any judgment recovered against such policeman. * * *
“Sec. 2. * * * That such political subdivision shall not be made a party to any such action.”
The legislative intent seems to us to be clear. The legislature recognized that a police officer was personally liable for his personal torts committed in the course of his employment. The political subdivision was not liable for the tort of the police officer on the theory of respondeat superior, because the agency doctrine related a tortious act to it, for which it could not be compelled to respond because of its governmental immunity. No authority we know of classified a police officer‘s duty as “proprietary” in nature. A tortiously injured person was therefore in the position, upon the requisite showing, of obtaining a valueless judgment against a more often than not impecunious and execution-proof policeman. The legislature therefore without rendering the political subdivision liable in law, empowered it, in its discretion, to indemnify the officer against any judgment recovered against him.
We think the prohibition was directed against a presumed tendency of a jury to return a larger verdict against a public corporation than against a policeman only. Whatever the wisdom, efficacy, soundness, or lack thereof, in this theory, it is not our concern. That determination abides in the legislature. It seems obvious to us that primary intent of the enactment was to authorize, discretionarily, the expenditure of public moneys for an otherwise unauthorized purpose, namely, the reimbursement of a police officer for a judgment rendered against him
In this case plaintiff brought an action against a police officer and the municipal corporation of Marine City, naming it as a defendant. The declaration alleged use of excessive force in his arrest, claimеd injury therefrom and sought damages. Defendant city moved to dismiss as to it on the authority of the statute here involved. The trial court in a single sentence opinion found that “this matter is covered by
Appellee contrariwise says the statute controls. Further it contends that even if the court had considered the cases their effect is not what appellаnt contends for, namely, that defendant city no longer enjoys governmental immunity; ergo it should not be continued as a party defendant; ergo the trial judge was right in dismissing as to it. To determine these questions, it is first necessary to dissect Williams. Plaintiff there brought an action against the city of Detroit, Joseph Wolff and Mark Roberts, commissioner аnd inspector, respectively, of the city‘s department of buildings and safety engineering. The
First, and irrelevantly here, the decision affirmed the action of the trial judge in that case because 4 Justicеs voted for affirmance; Chief Justice CARR was joined in his vote by Justices KELLY, DETHMERS, and BLACK. Four Justices voted to reverse; Justice EDWARDS was joined in his opinion by Justices TALBOT SMITH, KAVANAGH, and SOURIS.
Justice BLACK‘s opinion must be considered separately, however. His vote for affirmance was, first, a protest against the EDWARDS’ opinion limiting the overruling of “the judicial doctrine of gоvernmental immunity” to the Williams’ Case and to causes of action accruing after that opinion day, September 22, 1961. Second, Justice BLACK limited the overruling in that case to municipal corporations. Thus, while his vote was cast to affirm the trial judge in that case, it was cast to repudiate governmental immunity as to municipal corрoration. The minimal result of Williams, therefore, was properly headnoted by the experienced reporter, Hiram C. Bond, as follows:
“Judgment for municipal corporation, as owner of building which it used in the performance of municipal purposes, holding it not liable for fatal injuries sustained by employee of moving company, which had been engaged to move furniture from building, who fell down unguarded opening between elevator
floor and side of shaft, is affirmed by an equally divided court.
“The judicial doctrine of governmental immunity from liability for ordinary torts is overruled by the Supreme Court, prospectively from this date except for the instant case, per SMITH, EDWARDS, KAVANAGH, and SOURIS, JJ., such overruling to be wholly prospective and limited to municipal corporations, per BLACK, J.”
Incontestably, therefore, as of September 22, 1961, Marine City lost its governmental tort immunity as to causes of action accruing after that day. The cause of action here asserted accruеd October 6, 1961. The permissive statute allowing political subdivisions to indemnify police officers for judgments rendered against them, and the condition of nonjoinder of the political subdivision, lost the basis for its clear legislative intent as of the date of the decision in Williams. The evil (if indeed it were one) against which the statute was dirеcted could no longer eventuate.
The defendant city no longer enjoyed the immunity from the effect upon it of the alleged tortious act of its agent-servant, the police officer. It could be sued, named as a defendant, and compelled, upon requisite showing of agency, injury, and damage, to respond.
This, appellee says, may very well be, but the decision in Williams is limited additionally to “ordinary” torts, and this tort asserted is not any “ordinary” tort. This tort, it claims, is within Justice EDWARDS’ limiting language (p 260):
“We deal in this case with a declaration which would clearly state an ordinary tort claim against a private individual or a private corporation. Our holding herein is limited to the statement that there is no longer any judicial doctrine of governmental
Appellee‘s theory is that because Williams excluded “discretionary” acts, and that since a police officer has discretion as to whom he will arrest, for what reason the arrest will be made, and how much force will be used, his action is a “discretionary” one. The theory is untenablе. The type of discretion contemplated in Williams is carefully defined (p 261):
“There are and will continue to be many situations in relation to which real or fancied grievances exist where governmental freedom from liability will persist on wholly different grounds. * * * The instant case, a tort action, does not in any manner alter the fact that actions оr decisions of a legislative, executive, or judicial character which are performed within the scope of authority of the governmental body or officer concerned continue to enjoy freedom from liability.
“The people place great powers of decision making in the hands of their government. In the exercise of discretionary power, governmental duty runs to the benefit of the whole public, rather than to individuals. It is of great importance that this crucial function of democratic decision making be unhampered by litigation.”2 (Emphasis supplied.)
Appellant urges that our decision in Wardlow v. City of Detroit, 364 Mich 291, is controlling. Appellee urges that in Wardlow the Court did not consider the statute here involved relating specifically to an action against a police оfficer, even though in that case the action was against the municipal subdivision and 18 of its police officers.
It is true that the opinions in Wardlow are truncated. They do not answer with certainty appellee‘s contention. There is room, from Justice BLACK‘s reference to the date of the accrual of the cause of action in that сase, to conclude that it was on that ground only that decision was made, since the majority concurred only “in affirmance.”
Irrespective of the ground upon which the Court decided the motion to dismiss in Wardlow, we here now hold that the statute relied upon by the trial court is not authority for his action. This is for the reasons herein first disсussed as to the legislative intent as necessarily construed under the law as it existed at the time of the enactment of the cited statute. Since the statute was enacted before Williams it can hardly be urged that the legislature passed it with the decision of Williams in mind. It is no longer to be recognized as authority for prohibiting the naming as a defendant a political subdivision in an action against a police officer thereof. A necessary caveat: Though actions against munici-
The order granting the motion to dismiss is vacated. The case is remanded to thе trial court with instructions to reinstate the municipality as a party defendant. No costs are allowed as we construed a statute.
KAVANAGH, C. J., and SOURIS, SMITH, and ADAMS, JJ., concurred with O‘HARA, J.
BLACK, J., concurred in result.
DETHMERS, J. (dissenting). I do not concur in reversal. First, I favor affirmance of the trial court order dismissing as to defendant city on the ground of governmental immunity for the reasons set forth in the оpinion of Mr. Justice CARR in Williams v. City of Detroit, 364 Mich 231. Also, in my view, the order must be affirmed because of the prohibition contained in
I do not agree with Mr. Justice O‘HARA that Marine City lost any governmental immunity on September 22, 1961, the date of decision in Williams. If, however, Williams could be deemed to have had any such effect it would have extended only to the historic, Court-created immunity and not to the special case of immunity provided by the statute from liability for the tortious actions of its policeman engaged in the performance of his duties. Nowhere
The order should be affirmed. No costs.
KELLY, J., concurred with DETHMERS, J.
Notes
“Government officials are liable for the negligent performance of their ministerial duties * * * but are not liable for their discretionary acts within the scope of their authority, * * * even if it is alleged that they acted maliciоusly. * * * Such immunity is not designed to protect the guilty, for ‘if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as thе guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. * * * In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to sub-
ject those who try to do their duty to the constant dread of retaliation.’ Learned Hand, J., in Gregoire v. Biddle, 177 F2d 579, 581. Muskopf v. Corning Hospital District, 55 Cal 2d 211, 220, 221 (11 Cal Rptr 89, 94, 95, 359 P2d 457).”