Bragg v. City of Kalamazoo

• Decision Date: 06 November 1978
• Docket Number: Docket No. 77-2437
• Citation: 273 N.W.2d 530,86 Mich.App. 700
• Parties: Mary BRAGG, next friend of Raymond Bragg, a minor child, Plaintiff-Appellee, v. CITY OF KALAMAZOO, Defendant-Appellant. 86 Mich.App. 700, 273 N.W.2d 530
• Court: Court of Appeal of Michigan — District of US

Page 530

273 N.W.2d 530

Mary BRAGG, next friend of Raymond Bragg, a minor child Plaintiff-Appellee, v. CITY OF KALAMAZOO, Defendant-Appellant.

Docket No. 77-2437.

86 Mich.App. 700, 273 N.W.2d 530

Court of Appeals of Michigan.

Nov. 6, 1978.

Released for Publication Jan. 12, 1979.

[86 MICHAPP 701] James F. Bishop, City Atty. by William S. Baird, Asst. City Atty., Kalamazoo, for defendant-appellant.

Robert A. McWhorter, Kalamazoo, for plaintiff-appellee.

Before WALSH, P. J., and T. M. BURNS and BYRNS, ^* JJ.

WALSH, Presiding Judge:

Defendant appeals from the denial of its motion for summary judgment, GCR 1963, 117.2(1). The trial court rejected defendant's claim that governmental immunity barred plaintiff's action.

On August 4, 1975, Mary Bragg, next friend of Raymond Bragg, a minor, filed a complaint against the City of Kalamazoo. Plaintiff sought damages for injuries sustained by the minor when he fell from a rope swing in a park owned by defendant.

Defendant moved for summary judgment claiming, Inter alia, that it was immune from liability. M.C.L. § 691.1407; M.S.A. § 3.996(107). In denying the motion the trial judge ruled that the portion of the governmental immunity act upon which defendant relied was unconstitutional as violative of the title-object clause of the Michigan Constitution:

"No law shall embrace more than one object, which shall be expressed in its title." Const.1963, art. 4, § 24.

[86 MICHAPP 702] The purpose of the title-object clause is to assure fair notice to legislators and the public of a statute's content and to prevent deceit and subterfuge. Advisory Opinion re Constitutionality of 1972 P.A. 294, 389 Mich. 441, 465, 208 N.W.2d 469 (1973). In effectuating these purposes, courts must construe an act's title reasonably, not in a narrow and technical sense. Bankhead v. Mayor of River Rouge, 387 Mich. 610, 614, 198 N.W.2d 414 (1972); City of Gaylord v. Gaylord City Clerk, 378 Mich. 273, 288, 144 N.W.2d 460 (1966).

The title of the governmental immunity act (M.C.L. § 691.1401 Et seq.; M.S.A. § 3.996(101) Et seq.) provides in part:

"AN ACT to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function, For injuries to property and persons." (Emphasis added.)

Section 7 of the act (M.C.L. § 691.1407; M.S.A. § 3.996(107)), provides in part:

"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." (Emphasis added.)

The trial court ruled that "tort" was broader than "injuries to property and persons" and that § 7 was, therefore, unconstitutional. It was the trial court's opinion that "injuries to property and persons" means injury to tangible physical property and injury to the body of a person.

In Maki v. City of East Tawas, 385 Mich. 151, 188 N.W.2d 593 (1971), the Supreme Court held that § 7 [86 MICHAPP 703] of the governmental immunity act was unconstitutional as violative of the title-object clause. At the time of that decision, the title of the act granted immunity to governmental units from liability "for injuries to property and persons Caused by negligence ". (Emphasis added.) 1964 P.A. 170. The Court held that the "tort" immunity granted in § 7 was broader than the "negligence" immunity granted in the act's title.

The Legislature responded by reenacting the immunity statute under an amended title. The "caused by negligence" language was deleted. 1970 P.A. 155, § 1.

In interpreting statutes we are guided by M.C.L. § 8.3a; M.S.A. § 2.212(1):

"All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning."

The trial court erroneously concluded that "injuries to property and persons" had acquired a peculiar meaning in the law. He relied on Sweet v. Shreve, 262 Mich. 432, 247 N.W. 711 (1933), where the Supreme Court held that an action for fraud was governed by the general six-year statute of limitations instead of the three-year statute governing injuries to persons or property. The Supreme Court went on to state that the three-year limitation applied only to actions involving specific property. As noted in Krum v. Sheppard, 255 F.Supp. 994 (W.D.Mich.1966), Aff'd, 407 F.2d 490 (CA 6, 1967), this statement was not necessary to the decision and was merely obiter dictum.

In other contexts, the phrase "injuries to property[86 MICHAPP 704] and persons" has been interpreted more broadly; injury to specific tangible property or injury to the body of a person has not always been required. See, E. g., Krum v. Sheppard, supra; Probst v. Jones, 262 Mich. 678, 247 N.W. 779 (1933); Stringer v. Sparrow Hospital Bd. of Trustees, 62 Mich.App. 696, 233 N.W.2d 698 (1975), Lv. den. 395 Mich. 768 (1975). Anno.: What constitutes "injury in person or property" within civil damage or dram shop act, 6 A.L.R.2d 798.

We are not willing to adopt the trial court's restrictive interpretation of the phrase "injuries to property and persons". As currently worded, the title of the governmental immunity act gives fair and adequate notice of the act's purpose and content. If we read the phrase "according to common and approved usage" we must decline to limit it to physical injuries. Stringer v. Sparrow Hospital Bd. of Trustees, supra, 62 Mich.App. at 702, 233 N.W.2d 698. ¹ Our holding is limited to the narrow issue raised on appeal. We express no opinion as to the merits of the governmental immunity defense raised by defendant. ²

The trial court's ruling that § 7 of the governmental[86 MICHAPP 705] immunity act is unconstitutional is reversed. The cause is remanded for further proceedings.

* CHESTER J. BYRNS, 2nd Judicial Circuit, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

1 Our holding accords with dicta in several cases where Supreme Court Justices have indicated that the Legislature's response to the Maki decision cured the title object defect in § 7. See E. g., Thomas v. Dept. of State...