Williams v. City of Detroit

• Citation: 111 N.W.2d 1,364 Mich. 231
• Decision Date: 22 September 1961
• Docket Number: No. 5,5
• Parties: Charlotte L. WILLIAMS, Administratrix of the Estate of Arden H. Williams, deceased, Plaintiff and Appellant, v. CITY OF DETROIT, a Municipal Corporation, Joseph Wolff, Commissioner, Department of Buildings and Safety Engineering, and Mark Roberts, Inspector, Department of Buildings and Safety Engineering of said City of Detroit, Defendants and Appellees.
• Court: Supreme Court of Michigan

Page 1

111 N.W.2d 1

364 Mich. 231

Charlotte L. WILLIAMS, Administratrix of the Estate of Arden

H. Williams, deceased, Plaintiff and Appellant, v. CITY OF DETROIT, a Municipal Corporation, Joseph Wolff,

Commissioner, Department of Buildings and Safety

Engineering, and Mark Roberts, Inspector, Department of

Buildings and Safety Engineering of said City of Detroit,

Defendants and Appellees.

No. 5.

Supreme Court of Michigan.

Sept. 22, 1961.

Carl T. Storm and Walter M. Nelson, Detroit (Stanton, Sempliner, Dewey & Knight, Robert B. Knight and Clement J. Waldmann, Detroit, of counsel), for plaintiff.

Nathaniel H. Goldstick, Corp. Counsel, Alfred Sawaya and Andrew F. Valenti, Asst. Corp. Counsel, Detroit, for defendant City of Detroit.

Paul L. Adams, Atty. Gen., and Samuel J. Torina, Sol. Gen., Lansing, for the Attorney General, amicus curiae.

James B. Stanley, Kalamazoo, for Helen Laycott, plaintiff, in separate action against City of Battle Creek, pending in Supreme Court, amicus curiae.

Allan G. Hertler, City Atty., Royal Oak, for City of Royal Oak, amicus curiae.

Roscoe B. Martin, Village Atty., Rochester, for Village of Rochester, amicus curiae.

Ralph B. Guy, Corp. Counsel, Dearborn, for City of Dearborn, amicus curiae.

Roscoe O. Bonisteel and Roscoe O. Bonisteel, Jr., Ann Arbor, for Michigan Education Ass'n, amicus curiae.

Norman L. Zemke, Detroit, for Michigan Chapter of National Ass'n of Claimants' Compensation Attorneys, amicus curiae.

Before the Entire Bench.

CARR, Justice.

This case has resulted from a fatal accident that occurred in the city of Detroit on December 11, 1954. On that date and for a number of years prior thereto said city was the owner of a 6-story building located at 429 Wayne Street, known as the Morgan Building. During such period of time no part of the structure was rented or leased, it was under the care and supervision of the city department of public works, and was used for municipal purposes.

On the day in question the defendant city was abandoning the use of said building and was removing furniture therefrom. Plaintiff's decedent, Arden H. Williams, was employed by O. H. Frisbie Moving and Storage Company which, under contract with the city, was conducting the operation. Employed in connection therewith was an elevator which plaintiff claims was not properly safeguarded and maintained. The decedent was assisting in carrying a desk into said elevator at the 6th floor level of the building and was walking backward. He was proceeding toward an opening in the elevator which was not guarded or protected in any way, as it is claimed. There was a space between the elevator floor and the side of the shaft approximately 30 inches in width. Mr. Williams fell from the elevator floor down this shaft and was killed. Suit was brought on the theory that defendant city and the individual defendants were guilty of negligence consituting the proximate cause of the death.

Defendants filed answer to the plaintff's declaration denying the charges of negligence and claiming contributory negligence on the part of Mr. Williams. Subsequently a motion to dismiss was filed on behalf of defendant city asserting that the Morgan Building was used solely for governmental purposes and that the city at the time of the accident was performing a governmental function involving the preservation of the public health, welfare and safety, and was, in consequence, not liable for damages. Following a hearing on the motion, as appears from the opinion of the circuit judge who heard the matter, certain facts were agreed to from which the conclusion followed that defendant city's claim was correct and that it was in fact in its operation of the Morgan Building exercising a governmental rather than a proprietary function. The motion to dismiss was therefore granted, and plaintiff has appealed.

Justice EDWARDS has written for reversal of the judgment entered by the trial court. He prefaces the opinion that he has served with the declaration that:

'From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan.'

Obviously it is contemplated that, prospectively, the State and its various municipalities, governmental agencies and political subdivisions shall be subjected to liability for damages for torts resulting from the exercise of governmental powers and the performance of governmental functions. We are not here concerned with the exercise of so-called proprietary functions by municipalities of the State which have long been considered as falling into a wholly different category than do governmental functions in the proper sense of the term.

The radical departure from existing law in this State contemplated by Justice EDWARDS, and those of like mind with him, obviously involves the exercise of legislative authority. The fact that the change to be made is prospective only is significant in this respect. In other words, it is proposed that the Court shall declare what the law will be in the future rather than what it is in the present and has been in the past. Such a change will affect not only the State itself but all governmental agencies of the State, all cities, villages, counties, townships, school districts and other governmental agencies. The burden resulting from such change will fall on the people of Michigan in whom all State sovereignty is invested. The query immediately arises whether the people have in the Constitution that they have adopted, and by which they have created departments and agencies of government for the performance of governmental functions in the public interest, delegated to this Court any such authority as it is now suggested the Court should exercise.

It is conceded that the legislature of the State, under the powers vested in it by the people, may modify the doctrine of governmental immunity as it has done in certain respects in the past, and may abolish it. The exercise of such authority is wholly legislative in character. It has not been vested in the judiciary. On the contrary, the people expressly declared in Article IV, § 1, of the present State Constitution that:

'The powers of government are divided into 3 departments: The legislative, executive and judicial.'

And section 2 of the same article renders crystal clear the intent of the fundamental law of the State. It declares:

'No person belonging to 1 department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution.'

The admission of the obvious fact that a change in the policy of governmental immunity from liability in cases of the nature here involved is within the scope of legislative authority carries with it the further admission that such action is not within the scope of judicial powers.

Justice Edwards declares in his opinion that some members of this Court have in prior cases expressed dissatisfaction with the doctrine of immunity in the performance of sovereign functions of government, and that the legislature has failed to take action. It must be assumed that the legislature did not consider that it would be for the best interests of the State of Michigan to abolish the doctrine or to further modify it in material respects. The expressions of dissatisfaction that have been made from time to time impose no obligation for legislative action.

Attention is called to court decisions in Florida, Illinois and California, in each instance by a divided court, rejecting the doctrine of governmental immunity. We cannot agree that such decisions, in view of the overwhelming weight of authority to the contrary, indicate any 'major trend' toward the general abolition of the doctrine. Considerable emphasis is placed on the California decision, Muskopf v. Corning Hospital District, 11 Cal.Rptr. 89, 359 P.2d 457, 463, which, incidentally, recognized the authority of the legislature of the State with reference to the subject matter. The dissenting opinion filed by two justices of the court called attention to the fact that in Vater v. County of Glenn, 49 Cal.2d 815, 323 P.2d 85, the California court, one member dissenting, held that the abrogation or restriction of the doctrine of governmental immunity was a legislative matter. Such decision was in accord with prior holdings of the California courts. It was further said in the dissenting opinion:

'Our state Constitution, the instrument which rules (or should rule) our decisions, provides (art. III, § 1), 'The powers of the government of the State of California shall be divided into three separate departments--the legislative, executive and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except as in this Constitution expressly directed or permitted.'

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'While this court was repeatedly holding that abolishment of governmental immunity was a legislative question, the Legislature enacted various statutes which reduced such immunity in certain fields but did not abolish it, and enacted and re-enacted statutes which dealt with the related problem of suability of the government; therefore, it should be concluded that the Legislature agreed with this court that the questions should be resolved by statute rather than judicial decision. See Richfield Oil Corp. v. Public Util. Com. (1960), 54 Cal.2d 498 , 6 Cal.Rptr. 548, 354 P.2d 4.

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'One of the grounds upon which the majority seeks to justify their invasion of the legislative province is that statutory and judicial exceptions to the governmental immunity doctrine 'operate so illogically as to cause serious inequality.' P. 92 [of 11 Cal.Rptr., p. 460 of 359 P.2d]. I had thought that the Legislature could abolish immunity in some areas and modify it in others, as it has done, without judicial interference with its efforts, so long as the unevenness of...