*1 379 208 208. v.
SMITH GINTHER.
Opinion of the Court. Municipal Corporations Immunity 1. —Governmental —Statutes —Torts—Policemen Firemen. permits municipal corporations Tlie statute which indemnify policeman any judgment against or fireman for recovered him for torts acting scope committed while he is within the authority of his employment or course of permis- his impose liability municipal and does corporation sive not on á torts, away liability (CLS for such nor 1961, does take seq., et 83). 124.101 1963, as amended PA No § Immunity 2. Same —Governmental —Statute. political The statute which authorizes subdivisions the State indemnify policeman any judgment or fireman for recov- against him acting ered tort committed while he within scope authority employment his his eourse of provide governmental (CLS does for cities seq., 1961, 1963, 124.101 et 83). as amended § [15] [16] [10] [9] [11-13] [7] [14] [3] [4] [5] [8] [6] [1, 2] Municipal 20 Am Jur 20 Am nicipal Corporations 5 Am Jur 5 Am 38 Am Am §80. §195. 5 Am Jur §§ 5 Am Jur 20 Am Jur 5 Am 20 Am 37 Am 70, 71, 74. 38 Am Jur Jur Jur, Municipal Corporations Jur Jur Jur 2d, Appeal References Jur, Municipal Corporations Corporations 2d, 2d, Appeal 2d, 2d, 2d, Appeal Jur, 2d, Appeal 2d, 2d, Appeal 2d, Courts Courts Courts Courts Municipal Courts §§ § §§ §§ and Error §§ and Error 73. 620, 623. and Error §§ § 70, Error Corporations Points 186, 187, 192, 198, 231; Error 71, 75. 195. § 76, § 901. § § § 189. § 902; 901; 901; 623. Headnotes §§ § 20 Am Jur 130; 20 Am Am 572. Am38 Jur Jur 2d, 2d, 2d, Jur, Am Courts Courts Courts Jur, Mu v. Ginther. 209’ Immunity Volunteer Fireman. —Tort 8. Same —Governmental damages corporation against municipal result- complaint A employee alleged negligence a volunteer fireman ing employment municipal corporation in the his course city, against the con- of action states a cause *2 immunity, city enjoys governmental when the tention that 20, 1964, June after complained of occurred the accident by abolished decisional governmental immunity as cities was law in 1961. Opinion. Dissenting Kelly JJ. Brennan, J., and Dethmers, and C. Promulgation—-Reports. 4. Common Law — promulgated is and Law a rule reason ordained the com- of for good, and the mon in common-law countries the decisions of highest courts, law, promulgated which have the are force of by being reports printed published, and but are valuable these only reading extent that to the the reader can determine from applicable the decisions what rules law to what sets are of and circumstances. of facts Decision—Opinion—Interpretation. 5. Same — judicial appellate court a The an common-law function of system way, particular particular a case and decide in a future, what the law be in nor to decide declare will the in the hoio various classes cases will be treated resolution of future. Decision—Opinion—Interpretation. 6. Same — opinion appellate court in common-law and decision an of judicial system the and as a whole in must read examined only light based, and the con- the which facts of questions upon the arrived at and announced several clusions proper disposition the case discussed essential of things court; the are not neces- the other case are those of court, things sarily adopted opinion other the the such of having eing precedential no value. b dicta Immunity Prospective Aboli- — 7. Courts —Torts—Governmental tion. affirming Supreme Court, trial dismissal the Decision of city ground enjoyed that the on court defendant of employees, immunity governmental the torts its suit for of from voting evenly court, and 4 by' an divided for for affirmance copmon- precedent reversal, constituted abolition for of 379 Mich 208. although city, governmental one law of of voting
justices opinion in his that he announced affirm immunity, and. to abolish wished differed from wishing voting only such to make aboli- those reversal operative m the case then decided. prospective tion and not Affirmance—Evenly Appeal Divided Court and Error — 8. .Same — —Precedent. justices equal division the trial court Affirmance of precedent. Supreme sets no Court Opinions—Writing—Dissent. 9. Same —Constitutional Law — requires Supreme give The Constitution Justices Court to writing part the reasons their dissent in whole or in any court; hence, decision when a Justice concurs giving any dissent, the result without reasons it must part (Const be assumed that he did not dissent in whole or in 6, §6). art Appeal Opinions—Euture Cases —Dictum. Error — Supreme Pronouncements in the about all arising pending cases, cases and or all cases before future meaningless opinion, this or that are because date of after *3 gets Supreme Court, the each case will be decided when it according judgment sitting the best the Justices then of according respect precedents to their view the for of which have been set. Immunity Municipal Corporations 11. —Rule. —Governmental municipal corporation is immune to suit the The rule that a for governmental carrying employees a its on torts of function simply wrong, a rule reason ordained a but of for good. common Immunity —Rule. 12. Same —Governmental wrongs they Wrongs by government upon people are inflicted by government people, themselves in a of inflict the ' people. people, and for Immunity —Rule. 13. Same —Governmental governmental immunity munici- the common-law Abolition of of by pal corporations a mistake and should decisional law was be overruled. now Appeal Courts—Policy. and Error — deciding policy V)hoget justices Appellate area court info of n trouble, into get v. Ginther. Repeal—Decisional Law.
15. Statutes — join- provision prohibiting Supreme that a Decision of police with a political a subdivision der officer defendant of against police a committed while tort in an action for officer duty, engaged performance his policeman in the of corporations authorising municipal to in- a statute included in against him, any judgment demnify recovered policeman rule common-law because the was not of effective had since been was enacted when the statute in force the will law, a substitution by and was decisional abolished of legislative assembly, and there the will the court of of (CLS difficulty way the decision but to overrule is no out of 83). by 1963, No seg., et as amended 124.101 § op Corporations —Tort Municipal Costs —Public 16. Question — Fireman. Volunteer city’s appeal its motion denial allowed on No costs are alleged against its tort one to dismiss action being fire, public question en route to a volunteer firemen involved. from Court Appeals, leave by granted
Appeal Kava- and T. G. J.,C. Gillis 1; Lesinsld, Division from Sani- appeal leave JJ., denying order nagb, May 3, J. Submitted (Arthur M.), Bacb lac, Decided June 51,513.) Docket No. No. 6, (Calendar Leslie Lee Smith Constance Complaint for personal of Croswell and the City Ginther W. between in an automobile accident received injuries and one driven which passenger a car she a vol- was acting Ginther while he defendant Motion Croswell. City fireman for the unteer De- denied. judgment for summary City defendant Affirmed. appeals. fendant City *4 Wistrand, plaintiff. Bruce D. M, Ambrose, £ (Philip Bowers
Gault, Davison for defendant Ginther. counsel), .. 379 Buce, Black,
Bush, Henderson & for defendant City of Croswell. injured Plaintiff in an accident Adams,
that
20,
Grinther,
occurred on June
1964. Defendant
city
a volunteer fireman for the
while
Croswell,
responding in his own car to a fire alarm, collided
being.
by plaintiff’s
awith
car
driven
husband.
brought
city
Plaintiff
suit
Grinther
judge
by
of Croswell.
circuit
a motion
denied
city
summary judgment, holding
that this
squarely
City Detroit,
case falls
within Williams v.
City
City,
judgment torts, him for recovered policeman or while such acts or omissions is fireman authority scope acting or of his within political employment; and to authorize course of his legal counsel.” furnish to subdivisions immunity govern- No mention right act. No made either function is mental policemen is conferred either act. or firemen sue The statute as permissive insofar amended permits polit- political pertains It subdivisions. imposes conditions it under the ical subdivisions policeman judgment indemnify for a or fireman liability pay No is created. None is or to same. away. taken govern- legislature
Had the intended deal only liability mental it had so to state was done seq., (MCLA § 691.1401et Stat PA No 170 1964, seq.), Supp 3.996[101] § et the title Ann 1965Cum which commences as follows: liability municipal
“An act to uniform make corporations,” et cetera. 1951, 59, that PA No it must concluded
Since provide governmental 1963, do not 83, governmental immu- for cities and since nity prospectively as to cities abolished September plaintiff Williams, has decided arising out stated a cause of action which occurred June of the accident tJnne op Opinion the Court. judge (cid:127)'The decision trial is affirmed. The proceedings. is remanded to him for further case appellees. Costs
T. M. O’Hara, JJ., con- Kavanagh, Souris, curred with Adams, J. (dissenting). Aquinas J. Thomas tells
Brennan, that the law the rule of us is reason ordained and promulgated good. common The need for promulgated apparent. to be law is Citizens expected sovereign’s cannot be to know the mind speaks. until he not of If ours is to be a rule of law and necessary published, it is men, that our law be that it be made known to those whose lives and governed by are to be In it. common-law .decisions highest as 'countries, ours, such decisions of the regarded having are courts the force of law. promulgated, Since law must be the decisions of printed appellate courts are in bound volumes and legal profession public made available and the generally. reports These are valuable, however, only the extent that the reader thereof can deter reading mine the decisions what rules of law applicable are what sets of facts and circum stances.
Appellate judges by creating make law useful precedents. Appellate judges power do not have the legislate, they power to what lution do not have to declare
the law will nor future, reso- ' how decide various classes of eases will be treated in the future. The function of an appellate court, as the function of all courts, is to appellate an decide cases. When court has decided particular particular way, case in a that decision precedent. justices judges constitutes a The or Summa Theologica, Part II, First Part, Q. Art 4.— Reporter. v. Ginther. Dissenting Opinion Brennan, participating in cannot the decision declare that their precedent. will not he Snch a declaration decision attempted constitute disavowal the en would jurisprudence. process of common-law dis tire The says awhat court does and what it between tinction kept clearly in if mind one is to must be read appellate profit. reports courts follow ing appears Starkweather, case Larzelere v. page at 100: 38 Mich reasoning opinion in an not “The prepares judge
court, of the who but delivers may may not be considered sound and it. It subject is the unanswerable, such of criti- at cism. The conclusion arrived and announced questions to a discussed and essential the several proper disposition case, court, that of the gen- concurring in such it is and in erally supposed conclusions everything con- or understood that thereby unqualifiedly *7 in the tained or said is opinion unquestionably adopted as of the and court. opinion, preparation an the facts In the of prepared with refer- of the ence to such are in mind. It is case in connec- and when considered facts, satisfactory. generally therewith, be found tion will attempt pick is out- made however, When, parts apply particular and them indis- sentences, criminately nothing in but confusion cases, other likely words, to follow. In other disaster will and be must read of court be and decision light of the facts a whole in the and examined as They are foundation which was based. safety which cannot structure entire them.” reference to used without It is to cases. the court decide function of The applying The by law the facts. decides cases applies facts and which to the applicable the court rules which Rules law. in the decision are result 379 216 Brennan, Dissenting Opinion by necessary are are to the decision of law which precedential and have no value. mere dicta presents great case before us one which The distinguishing problems understand- of terms precedents, any, ing if which made have been may in the deci- Court, this and which be useful required to make here. This is the case sion we are of a injured alleged plaintiff 1964, on June negligent operation being privately aof owned automobile way by a fireman
driven
volunteer
on his
happened
fire. If this accident had
sometime after
question
July
there
that the
1, 1965,
would be
plaintiff
damages
city
could not recover
from the
making
of
of
Croswell because
the statute
city
liability.2
immune
such
If this acci-
happened
September
prior
dent had
sometime
22, 1961, there would be little doubt
plaintiff
damages
could not recover
from the
fairly
prior
because
to that date it was
Croswell,
city enjoyed immu-
well settled in
that the
this State
through
nity
liability
persons injured
from tort
agents
engaged
acts
activity.
its
while
rights
persons injured
in this State
days
years
in cases
this kind
the effec-
between
celebrated Williams Case3and
of PA
are unsettled. And
tive date
though
involving similar
have
cases
circumstances
justice many
come before this bar of
on
occasions
years
days,
then,
those
and 8
it is
since
impossible
lawyer
nearly
for a
still
to advise his
any certainty client with
the matter.
dis-
Some
cases
in order.
cussion
these
began
all
with a
It
statement
Mr. Justice
*8
Williams Case as
in.the
follows: “Prom
Edwards
judicial
govern-
the
date forward
doctrine of
this
Supp
[2]
Williams v.
§
3.996
[107]).
City Detroit,
§
7,
CL
1948,
writing statement of the a concise and shall contain and reasons decision for each and reasons facts judge appeal. dis- When a to of leave each denial writing give part in shall or in he in whole sents reasons dissent.” his sitting all in the of the Justices Sherbutte Thus, having including been Case, Mr. Justice Black, obligated uphold Constitution, were sworn give writing whether their dissent the reasons part. Mr. Justice be whole or such Since Black gave any must dissent, it be assumed no reasons for part. signed He that not in whole or he did dissent majority opinion. his concurrence the in He indicated By saying opinion. that he of the
the result emphasized merely that he result, concurred in the majority upon signature placing by his any approve dicta contained he did indorse conclusively opinion. in presumed But it must the O’Hara by concurring con- in the result he that conclusion arrived at well in the curred questions law announced those essential controlling disposition in the case. This meaning in result concurrence discussion on pertinent opinion. more later this will be wrong. was in the Case The decision Sherbutte misinterpreted wrong the result it It because Sherbutte, it said of the Williams Case. In governmental immu- rule of Williams abolished the simply nity. Williams was not not true. This was proposition. only precedent Not did for that misinterpret the effect of the decision Sherbutte compounded decision, but further Williams repeal attempting enacted statute error legislature. in the Sher- The statute involved in this case the same statute involved butte Case is v. Ginther. Dissenting Opinion Brennan, though include firemen. since amended Smith, the involved statute quoted provisions as follows, in Sherbutte were brought á action is 1. In case an “Sec. political * policeman for of this subdivision State *10 * * engaged policeman is such torts, while * ** polit- performance the of his duties the * ** police- police- may indemnify such ical subdivision any judgment against recovered such man for man. ** * * * * political subdivision 2. That such “Sec. any party action.” a to such not made shall be legislature that the It provided in Sherbutte was reasoned city party an made a could not be that policemen legis- against the because one of action its govern- rule of of common-law lature was aware the opinion says immunity. that Sherbutte The mental common-law rule Case abolished the Williams the thereby the statute and legislative intent.” The for clear the basis its “lost telling majority an that when us Sherbutte was legislature of its intent the loses the act of basis may ignored. act was not ruled unconstitu- it be The inapplicable. it There nor found be tional was question interpreting an words of no the merely ambiguous a said that statute act. The Court political provides shall not that a which subdivision against party one of its a action be made recognized longer police as author- officersis polit- prohibiting naming ity as defendant police in an action officer ical subdivision according majority statute, thereof. Sherbutte, though though constitutional, it it just unambiguous, it does not count. And clear and legislature presumably count because not does place first if have enacted it would never government immunity had rule of common-law ' 379 Bkennan, Dissenting Opinion by prior been to the time statute abolished enacted. present city
Now, in for the ease, counsel point years Croswell out to us that some two legislature Case, after the Williams had occa- sion to re-examine PA instead repealing they expanded it law, and added fire- persons city men to the class of whom a could joined he Counsel defendant. for the says having of Croswell, Case, read Sherbutte to us in “In Case, effect: the Sherbutte this Court presumptively repealed treated the act as on account presume Case. can Williams But how we its repeal legislature expanded when it re- argument enacted it after the Williams Case?” The cannot be refuted. When a Court it takes say unambiguous, a clear, itself to constitutional legislature longer recognized act of the is no to he authority says, what the Court has shed pretense looking legislative all intent has *11 legislative substituted will for of its the will assembly. way alley There is no of out this blind except up, to back and the Sherbutte Case should be overruled. may although
But it that said the Williams Case change governmental immunity did not the rule of Myers County in this State, the case of v. Genesee quarrel proposi Auditor5 did. cannot We that although disagreement tion, and was much there Myers accomplished, toas what the Case as can be County of seen in the case Keenan v. Midland,6 of proper reading Myers will Case that disclose precedent immunity” fact a the “no rule. Myers injured negligently a child involved while hospital patient county February paying at a
5 Myers
Keenan v.
v.
Genesee
County Midland,
County Auditor,
of
enjoy interesting young anAs aside, it is to note that Myers already Sharon dead almost 7 months when Mr. Justice made his now famous Edwards subject immunity. appear fiat on the It would September single that in not a member of granted the Court would have Sharon’s administra- ultimately trix the relief the give saw fit to point her. This aside is included here to out what already we have said about the limited function of appellate court. Pronouncements about all future pending arising cases and cases, or all cases before or after the date this or that are, things, meaningless nature of poppycock. Each gets case will be decided when it to Court. It will according judgment be decided to the best of sitting. according then Justices It will be decided respect precedents to their view of and for the which have been set. any
In Myers event, it must be conceded that precedent Case is a 5-to-2 for the abolition of the governmental applies rule of as it to coun- *12 precedent ties. This was set on March 1, 1965. It can thus be said that in the we Smith Case are actu- ally confronted with the majority situation which a Dissenting Opinion by Bbennan, presented mistakenly thought was '.this re-echo Sher If we were Sherbutte Case. the1: legislature say although the would now
butte, we No it lost PA re-enacted governmental legislative intent when the- immunity of its basis Myers on March Case was abolished longer the statute should no 1, 1965, and therefore says. authority recognized Such what be repeated. a The idea that an error should not injured happened plaintiffs, been to have few who during and 1, 1965, March 2,928 hours between damages permitted July recover should be 1,1965, injuries whose counties, while others cities gar fortuitously be left to should were less timed wages police firemen, does officers nisliee juris important addition sound like judges get prudence into of this When State. of.deciding they get policy trouble. Those area into successfully unsuccessfully sought later who thought it have abolish policy. legislature has the wiser The since vindi d minority felt If the who otherwise. cate gov holding levels common-law rule various liability by reason of the ernment immune from civil gov agents engaged acts of when tortious their wrong ernmental an ancient functions indeed crying out for we must marvel that it has redress, re-perpetrated legislature. a modern been wrong, is not truth is that the rule ancient simply It is ordained recent. rule reason good. analysis, preser the common In the last government thought greater civil vation of to be good, plaintiff, even than com unfortunate pensation injuries public of his from the coffers. power a'government money In constitutionally whose borrow is. thought circumscribed,, it is to be *13 v. Ginther. Dissenting Opinion J. Bkennan, juries deny policy the unfettered prudent to civil a power public indebtedness. the to increase King theory that “the can outmoded is no This recognition merely wrong.” no It is do a people, people, and government the by government wrongs people, inflicted for upon wrongs they people them- inflict are fireman volunteer was a Ginther selves. Defendant way car. Plaintiff can own to a in his fire, on his can collect Mr. Plaintiff Mr. Ginther. sue people of Croswell fault. The if he atwas Ginther, didn’t injure plaintiff. Mr. Ginther did. this department merely volunteer fire maintained a per- property protection and lives including plaintiff. area, sons in its rages, when the breaks, when the dam fire When through govern- enemy people, their attacks, They vigorously boldly act. must act ment, must and perish. judges, they It not for their from serene space by time far and and removed robes negligent peril, them their to brand the common travail and suffer their their fortunes and labors pay compensatory damages further taxed to be to those who injured chanced to be in the commu- nity’s the disaster rather than in overcome efforts itself. disaster justice, uniformity, good
In interests apply govern- sense, common we should rule of immunity in this reverse order case, mental dis- summary judgment, missing the motion question. being public costs, this award Dethmers, C. J., J., concurred with Kelly, Brennan, J., did sit.
Black,