Plaintiff appeals an accelerated judgment of dismissal in favor of defendant Outer Drive Hospital granted by the Honorable Thomas J. Brennan in the Circuit Court for the County of Wayne.
This action was instituted by the administratrix of the estate of Bobby Gene Snow, deceased. The *86 complaint alleged malpractice against the defendant hospital and two physicians.
Outer Drive Hospital is owned and operated by the People’s Community Hospital Authority. Defendant hospital moved the trial court for a summary and/or accelerated judgment on the basis that as a governmental unit, it is immune from plaintiffs claims against it.
On September 24, 1973, the trial court issued its opinion granting defendant Outer Drive Hospital an accelerated judgment based on governmental immunity. An order of accelerated judgment of dismissal was entered on October 11, 1973. From this judgment plaintiff appeals.
The issue herein presented is whether a municipally-owned hospital is immune from suits against it for acts constituting malpractice? In
Kriger v South Oakland County Mutual Aid Pact,
*87
Plaintiff also contends that the governmental immunity statute is unconstitutional and violative of due process as a deprivation of a property right without just compensation. In
McNees v Scholley,
In judging plaintiff’s cause of action, it must be asked whether it is an accrued vested right. In the cases cited above, the repeal of a statute subsequent to the date of injury could not deny plaintiff his right to enforce a cause of action. In the instant case plaintiff never had a cause of action which was an accrued right which subsequently could be denied, resulting in a deprivation of property. It seems clear that the instant case is distinguishable from the cases cited above.
Plaintiff cites
Buckeye Union Fire Ins Co v Michigan,
The controlling statute states:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.” MCLA 691.1407; MSA 3.996(107).
Plaintiffs final contention is that the operation of a municipally-owned hospital providing medical service for a fee constitutes a proprietary as opposed to a governmental function. In
Pichette v Manistique Public Schools,
"The test for determining whether a particular activity engaged in by a public corporation is purely a governmental function or is proprietary in nature is stated in
Gunther v Cheboygan County Road Commissioners,
" 'The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no *89 liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.’ ”
The definition of a proprietary function is found at MCLA 691.1413; MSA 3.996(113). The defendant is immune as long as it is not doing something for its corporate benefit or for its pecuniary profit. Affidavits which defendant has attached to his brief state that defendant has always been supported by taxes and fees and has not realized a profit since its inception. Plaintiffs complaint showed no allegation that the defendant hospital is operating as a proprietary function. As quoted by the trial court in its opinion:
"The law is well settled in this State that the furnishing by a public hospital the facilities in the interest of public health and for the benefit of the communities served which has been established under state statute, is a governmental agency. Many decisions have recognized People’s Community Hospital as a Public Hospital Authority and a state agency.
People's Community Hospital Authority v City of Ecorse,
"Further, a review of the decisions on the question of 'governmental function’ of a public hospital, the court has found that such hospital did, indeed, perform a governmental function.
Harrison v City of Pontiac,
285 F2d 305 (CA 6, 1961);
Martinson v City of Alpena,
Affirmed.