*1 TERM, 1949.* JANUARY WATSON SCHOOL DISTRICT OF THE CITY OF BAY CITY. Liability Schools School Districts —Tort —Paid Patron at Equally Football Divided Court. Game — Judgment notwithstanding for school defendant district ver- plaintiff, for dict administratrix of estate deceased patron high night injuries at game, football for fatal unlighted by ramp sustained when fell into she is affirmed equally an divided court. Appeal Bay; (Karl K.), Liebrand J. Sub- (Docket mitted October 1948. No. 8, Calendar 44,082.) February Rehearing No. 1949. Decided April 14, denied 1949.
Case Honoré administratrix Watson, of the es- Carolyn against tate of Honoré Watson, deceased, City City Bay School District of the for fatal in- juries ramp when sustained decedent fell into a anon plaintiff. Judgment field. athletic Verdict for for appeals. non defendant obstante Plaintiff veredicto. equally Affirmed divided court. plaintiff.
Martin & van Benschoten, (William Henry, counsel), Gilbert W. Hand B. for defendant. (for reversal). appeal by J. This is an Btjshnell,
plaintiff Honoré Watson, administratrix es- Carolyn tate of Honoré from a Watson, deceased, * Continued from Volume 323. References for Points in Headnotes Jur., Appeal Error, Am. § 1160. (1) Michigan Reports.
judgment non obstante veredicto in favor the de- city Bay City, jury fendant school district having plaintiff rendered a verdict in favor *2 $10,000. evening the of October then decedent,
On Handy years a at the T. L. old and student Junior City, High Bay company young- in School with her boy, game er another attended a brother and football High between the Midland School and the High School in the latter's Central stadium. She charge paid an admission in order to attend this girl game. there she met While Joan friend, accompanied Downer, had her friend, who James high Carolyn Dobson, a member of the school band. Upon leaving ride with was invited to home them. game the stadium “about 10 minutes before the completely girls parking over,” the two walked to a premises, on the the lot they west side of school where parking- car waited in for him. The Dobson’s lighted, although lot was not there street two were vicinity, lights Kleig lights in the the and in the near- light threw stadium a diffused over the area. top ramp lot has black cinder This and there ais long-, about depth feet feet and over feet in wide, 15-J deepest running at the from the end, basement building high up the warehouse of the to ground the level. A wall, low concrete which is level parking ramp, with the surface at the entrance this to building, extends on either side towards the with an average height testimony of about 18 inches. The protected by ramp posts that the shows or 10 “They made of 6-inch tubes filled with concrete. ramp along in front of and the west side, con- necting purpose prevent and-their wall, is to anybody driving testimony, from down there.” The any does not indicate there however, that rail retaining protect pedestrians. above wall to parked Dobson’s car was with its front wheels Bay City '3 District. Watson v. against ramp the west side wall of the with other cars closely parked on either side. game
When the there ended, was considerable cheering Carolyn, and who was a cheer in the leader Handy High suggested School, Junior to Joan they boys get help car out and cheer. Be- proximity cause of the of other cars door to open Carolyn, car Dobson would not wide while and stepping attempting car, out and walk around the ramp injury fell into concrete suffered and spinal her column. She never recovered paralysis lingering total that followed after and, painful died some 8 months illness, later. Carolyn’s right administratrix based her to recov- against negligence er failing the school district on its properly light safeguard ramp, dangerous upon prem- maintenance of a *3 nuisance its implied failing ises, and the breach of its contract provide Carolyn place to with a “safe travel” to while she awas at attendant the football contest upon premises. defendant’s
The immunity district school its asserted from lia- bility plaintiff’s under each of the three counts of ground quasi declaration, that it ais munici- pal corporation agency and of the State; that there was negligence no evidence of its or its that of employees; Carolyn guilty contributory that was negligence parking as a matter of law; upon injured, lot although which she was on the premises, part is not connected with nor a Carolyn the athletic field which to and other mem- public bers of had been invited. Carolyn’s contributory
The court trial held that any, negligence, question jury,, if awas of fact for the immunity liability and that defendant’s was solely question remaining -a The of law. issues were jury, submitted with decision reserved on de- Beports. fendant’s motion for a directed verdict at the close proofs. of the questions following were submitted to the
jury:
“1. Did the defendant know the condition of its parking portion lot located on the northwest of its premises?
“Answer: Yes. “2. parking
Did defendant have the area of its portion premises lot in the northwest of its in a rea- sonably proper fit and condition for the use to which put it 26,1945? on October “Answer: No.” Defendant is third-class school district
powers and duties are enumerated in section 15 of chapter 6 of 1 of Act No. 319, Pub. Acts 1927, (2 Comp. as amended* [Comp. § Laws 1929, 7233 Supp. § 7233, Laws Supp. Stat. Ann. 1946 Cum. 15.195]). given § power Such a school district is purchase acquire, “locate, lease, the name of * * * n * * * the district, such site or sites playgrounds may athletic necessary; fields and as be purchase, acquire, equip erect lease, or build and ' * * * buildings such athletic fields and playgrounds may necessary.” as chapter
Section 5 20 of the school code † Comp. § [Stat. § Laws 15.606]) Ann. places the control of interscholastic athletic activi superintendent public ties in the instruction. Such promulgated activities are conducted under rules *4 superintendent the State in a handbook entitled, “Michigan High copy School Athletic Association,” produced of which was as an exhibit. testimony
The par- shows that atheletic contests, ticularly games, football cannot be conducted with-
[*] † 2 Comp. See 2 Comp. Laws Laws § 370.5.—Reporter. § 346.15.—Reporter. District. "Watson by upon means of an attendance ad- out limitation charge, proceeds of which are mission used visiting expenses defray well teams as as home opera- surpluses any expense if over teams; promote. are used to other tion of football contests school athletic activities. general public game
The was invited to the football question through newspaper in ing, pants, and other advertis- everyone except partici-
and attendance, employees and members the school required pay band were A their admissions. paid receipts. Federal tax amusement on such patrolled prevent Guards the' athletic field to en- by anyone having trance other than tickets; those employed teachers were as ticket takers and athletic they given pay; assistants, for which were additional managers football coaches, scouts, and business were employed, if otherwise used the school dis- trict, were additional sums for such services. Midland-Bay City game produced a total of receipts amounting cash direct $1,225.79, costs surplus were posited $275.01, about $950 was de- general fund of the school district. enterprises Defendant contends that such athletic primarily physical are pro- of the education gram charges school and that admission only incidental thereto, and such football con- tests are not, therefore, commercial in nature. Plain- argues tiff that those who are not students or other- wise with the school, connected such as this decedent, physical program are not benefited education only and that their interest is to attend football argues contest; and she that the facts the case operation profit wholly show a commercial engaged removes operation school district while in such protection gov- from the of the defense of immunity. ernmental *5 Michigan Reports. 324
6. highly question This debated and controversial of governmental subject immunity has been the of much litigation. beginning page A. L. 160 at R., 7, contains pages than several more hundred of annotated cases subject liability public on of the tort of schools higher learning. and institutions of There follow pages subject almost 100 more of annotations on the liability private of tort of schools and institu- higher learning. of tions spoken subject This Court has in a number following representa of of tive: which the instances, City v. Daniels Board Education of of of Rapids, (L. 468), Grand Mich. 339 R. A.1916F, Education, and Daszkiewicz v. Detroit Board Mich. 212. light Throwing subject governmental on the im- munity respect are decisions of this Court municipalities, governmental and other counties agencies, Hodgins Bay City, such as: v. 156 Mich. (132 546); Rep. 687 County Am. St. Gunther v. Board of Cheboygan County,
Road Commissioners of
City Lansing,
Mich.
Foss
619;
tiff in case was truck, operated being negli- which she while claimed, in gent resulting ran into her manner, automobile, injury. collecting disposing her The cost of garbage city Lansing in the city general required but the then ordinance fund, city provide garbage cans or other containers superintendent garbage collected in per advance from of such cans users fiscal $1 year. Garbage conveyed so collected was farm to a 1949] Watson v. School District. pigs it
where was fed to which were fattened and city profit. sold at a *6 city ground perform-
The defended that, on in ing governmental this function, it was not liable for negligent judge acts of its The servants. trial agreed with view and this directed a verdict for the city. appeal, judgment
On was reversed and'a new trial granted, authority Hodgins City, Bay under the supra, saying: the Court holdings may “Whatever the be we are elsewhere, opinion Michigan that the rule that, in if a
municipality
engaged
governmental
in a
work with
profit,
private
an incidental
it is liable the same
aas
corporation would be.”
applied City Bay City
This rule was
in
v. State
Board
Tax Administration, 292
251.
County
See,
Miller
also,
v. Manistee
Board
Road
575),
Commissioners,
Defendant that it is a State cy possessing governmental only powers, and that, contrary, municipalities possess govern- both proprietary powers, argues mental It also that, any receipt by in event, it of in- admissions cidental to athletic contests is not the exercise of proprietary powers, and, hence, Foss Case is not applicable to school districts. The weakness in de- argument city, fendant’s is that in the Foss Case the governmental performing while function, received profits incidental in connection therewith. In the in- admitting argument case, stant for the sake of 'that performing governmental school district ,was prescribed by function as regulations statute and the superintendent public of the State instruction, profit it, too, nevertheless received an incidental Michigan Reports. 8- powers. performing the exercise of such Both were governmental functions, the rule in the and, hence, municipality Case, Foss where a was involved, should equally applicable held instant case where a school district is involved. such rule that Therefore, we hold municipalities pertaining appli- is also cable to school districts. judgment entered non veredicto obstante
should be reversed one should be entered ac- jury. cordance with the verdict of the necessary ques- We do not deem it to elaborate on negligence. governmental tions of In the absence of immunity, questions, such under circumstances jury. agree in this case, are ones of fact We judge question with the trial is not involved. of “nuisance” *7 judgment The should be reversed and the cause be entry judgment remanded for of a in accordance jury, with the verdict of the of costs both courts plaintiff. Boyles J.,C. Reid, JJ., Sharpe, and con- J. curred with Bushnbll, (for affirmance). judgment J. non Dethmers, obstante veredicto in favor of defendant should affirmed. sufficiently
The facts are forth in Mr. set Justice opinion to obviate their restatement. Bixsi-inell’s -plaintiff predicate therein indicated, As seeks lia- bility grounds: (1) negligence; (2) public 3on nui- (3) implied sance; breach of contract. We consider these seriatim. contrary,
In the absence
aof
statute to the
is the
“sovereign immunity”
of
defense
available to mu-
nicipal corporation
against
in an action
it for dam-
ages resulting
negligent performance
from the
of
n oneof its functions
agents
employees?
'9
District.
v.
Watson
properly
deter
answer is
contends
Plaintiff
the function involved is
the test of whether
mined
proprietary
governmental
or a
function.
function
up
that defense has
the cases in which
been
A few of
governmental
White
function, are
as relates to
held,
Education,
490;
139 Mich.
Detroit Board
head v.
Brink
of
Rapids,
City
472;
144 Mich.
Grand
Dan
v.
Rapids
191 Mich.
Education,
Board
v. Grand
iels
468);
City
(L. A.
Heino v.
Grand
1916F,
339
R.
(L.
528);
Rapids,
Defendant is a third-class school district under chap. § Act 319, 6, 2, No. Pub. 1, Acts as 1927, (2 Comp. § [Stat. 1929, amended 1 Ann. Laws educaj 15.182]). § act That authorizes board of acquire athletic tion to sites for fields and to build equip (2 Comp. buildings thereon Laws 15.195]). requires § § [Stat. Ann. The act physical pub courses health and education in all (2 Comp. § [Stat. lic schools Laws Ann. *8 15.602]) requires superintendent public public § and of prepare instruction such courses for supervision gives and him over their schools inter (2 Comp. 15.605,15.606]). scholastic athletic activities Laws 1929, 4 §§ [Stat. §§ 7566 Ann. 7565, Thus 1 Comp. [2] 3 Comp. [4] [2] [2] See [2] Comp. 2 Comp. Laws Laws Laws Laws 1948, 1948, 1948, § § §§ 370.1.—Reporter. 346.2.—Reporter. § 370.4, 346.15.—Reporter. 370.5.—Reporter. Michigan Reports. public charged responsibility the physical are schools with duty training
education and the of bodies as playing games well as and of and minds, inter part scholastic athletic contests are made a of the program educational of the was in schools. As said County, Rhoades District No. Roosevelt 1): [2d] Mont. 890, 160 Pac. L. R. A. knowledge a in another “It is matter these that, of common play against schools, teams selected to school; team teams the same that out of all or of acquired of these are selected who have those greatest proficiency, compose these team represents the which in contests teams general vicinity. other in the schools same striving great rivalry. to make first there team developed spirit of A emulation is of re- —all complete development physical in a more sults of the powers. Undoubtedly, one of elements which they stimulate contestants be will afforded opportunity exhibiting games of their in skill against against their fellows of the same school or teams a different school. This, we think, is true, pertains physical sports, not alone as it but the may debating same said teams, or of band con- department certs, exhibitions of the art of a school. fact that "a held, band concert is or an ex- department hibition work those in art brings the school departments. better had, results each in of these we Therefore, conclude that the bas- game question merely ketball. was of program physical education the school; and, consequently, ernmental exercising gov- the defendants were functions connection therewith.” only can We conclude that the school function here governmental, proprietary. involved was not Plain- urges tiff charge that the fact that an admission plaintiff’s paid by spectators decedent and other question proprietary made the athletic event in governmental activity than rather of the school. *9 District. v. Watson language following the Rhoades point from the is Case: emphasize plaintiff fact that “Counsel charged because assert that and fee was
admission activity charge from removed is was made, such governmental that we functions. With field of any agree. it does make Little if difference cannot went into fee thus collected the admission whether the school expense of conduct- fund, or whether general game ing from basketball was this of the of the It advances The result is same. taxation. part physical purpose That is a education. of governmental school district and of functions trustees.” plaintiff cites such cases as
In this connection City supra, City Bay City, Bay v. Hodgins v. Administration, Tax Board State municipality engages in the business of in which electricity. gas it selling In such instances is merely very not involved, the function nature of proprietary of its determinative revenue, game Here the football character. program. physical The function education
school’s
inherently
governmental function
educational, Board
v. Detroit
Daszkiewicz
doubt. See
without
cases there cited.
Education, 301 Mich.
212, 221,
operate
profit
not
or revenue does
incidental
change
this Court
the character of that function. As
in the Daszkiewicz Case:
said
students and
tuition
“The collection
upon approval
only
a com-
of students
admission
op-
change defendant’s
did not
admissions
mittee on
governmental
school from a
the medical
eration
enterprise.”
proprietary
of a
to that
function
Mr.
as does
Justice
relies, however,
Plaintiff
language
opinion,
in the case of Foss
Bushnell’s
Michigan' Reports.
City
Lansing,
185),
To
extent
that
Foss Case proposition
liability
municipal
rests on
cor-
porations
governmental
in cases of
functions with an
profit
incidental
we declined
revenue,
to follow it
Watson
School District.
It
in the Johnson Case and decline to do so here.
should,
extent,
to that
deemed to be overruled.
plaintiff’s
negligence
To
claim
the doctrine of
immunity”
“sovereign
complete
is a
defense here.
theory?
“public
Is defendant liable on a
nuisance”
plaintiff
In this
cites Ferris v. Detroit
connection
Education,
315;
122 Mich.
Kilts v.
Board
Kent
County
Supervisors,
Roy
646;
Board
162 Mich.
City Charlotte,
ston v.
Mich. 255;
and McDon
supra.
plaintiff
Brozo,
ell v.
the Ferris Case
injured by
falling
reason of snow
ice
onto
property
adjacent
his
of an
roof
building, which was so constructed that snow and
inevitably
plaintiff’s property.
ice must
fall on
This
*11
injury
Court held defendant liable because “the
trespass
the result of the direct act or
of munici
pality.”
county
In the Kilts
Case
was held not
plaintiff’s injuries,
liable for
faulty
sustained
reason
scaffolding
construction of a
on water
a
tower
county’s premises
plaintiff
on
on which
was work
ing,
holding
Court
this
that there
nowas
nuisance.
Royston
In the
Case it was held that “the fact that
swing
question
knowingly
in
was
in
maintained
faulty
dangerous
a
condition
the defendant
city,”
injury
plaintiff’s
with resultant
No
decedent,
public
city
did not constitute nuisance and that the
was not liable. In the McDonell Case it was held that
permitting
boys
public
to run races on a
side
physical
program
incident
walk
to
education
not
was
liability
imposed
for which
nuisance
could be
injury
pupil
the
participating
school district
when
sustained
pedestrian
in race ran into
and knocked
Assuming,
plaintiff
her down.
as
contends, that
required
safety
ramp
in
instant case
be
lighted
by warning signs
higher
or surrounded
or a
railing,
wall or
the case is, in
no
effect,
different than
Rapids
supra,
v.
Education,
Grand
Daniels
in which
Board of
plaintiff
fell
30-inch
over a
balustrade into
Reports.
accept
an 18-foot stairwell. This Court declined to
plaintiff’s
stairway,
in
contention,
case,
that
that the
railing enclosing
with its low
the well, was a nui-
sance, and held the defendant not liable. That case
controlling
theory
of the nuisance
in
case.
this
University Michigan
Plaintiff relies on Scott
[N.
Association,
Athletic
1949] Watson v. School District. opinion “It is warranty our that no contract or binding by defendant school district, as claimed plaintiffs, facts. These implied alleged can be from such state of alleged they acts of if defendant, trans pired, representatives governmental things were through done defendant agents performance in the negligent doing functions for the respond the school district could not be held to damages. implied in fiction. legal Contracts in law rest on They equity. arise from law or natural legal obligation perform duty When one is under a promise may duty a that the will be inferred ful legal But in the case here there nowas obli filled. gation owing by plaintiffs the school district to while engaged performance govern in was a defendant mental having legal duly There been no function. obligation, nothing doing or there was as to the imply promise ^vhich the law would on infer support Our conclusion has of defendant. jurisdictions. other Whitehead Detroit Board plaintiff alleged: Education, That employed by he had been trict to the defendant school dis paint buildings, its school and that defendant plaintiff duty place owed to furnish a safe which to work and to furnish him tools and accom reasonably expected modations safe for the use plaintiff them; guy that defendant furnished hook that defendant knew was defective and as a result plaintiff working gave way the scaffold which was causing injuries him fall and receive the for which damages. petition he claimed A demurrer to the was grounds being sustained, there was no statu tory liability, further that in the State of Michi gan municipal corporations are not liable for negligence of their when servants in the exercise governmental capacity duties in connection corporation ap the peal tained.” unless made so statute. On properly it was held demurrer sus *13 Reports. non obstante veredicto is affirmed, judgment with costs of both courts to defendant. JJ., concurred
North, Carr, Butzel, J. Dethmers,
WATSON v. HARRISON.
Deposits—Conditions'—Evidence.
1. Contracts —
nonjury
assumpsit
deposit
action of
to
toward
recover
made
purchase
market,
of stock and fixtures of food
evidence failed
upon
agreement
establish that contract was conditioned
by
living quarters
plaintiffs.
defendant to find
for
suitable
Damages
Stipulated
Damages.
2.
—Breach
of Contract —
Express stipulations
damages
in a contract
for
relative
breach thereof will not be followed where it is obvious that
parties
disregarded
principle
just compen-
have
injury
sation
sustained.
Stipulated
Damages
Penalty.
3. Same —
—
stipulation as
court as to whether or not
Determination of
damages
penalty
of a
not made
fact in the nature
intended,
by
parties
but
the relation of the
what
subject
magnitude
stated to the
matter.
of the sum
Damages.
Stipulated
4. Same —
subject
matter
from the nature of the contract and
Where
pro-
stipulation
sum is
for the breaeh of
damages
uncertain and difficult
vided the actual
ascertainment,
adopted
law
the sum stated is
as
[5]
[4]
¡V
'2]
^3]
liquidated damages
Intention
Provision for