Carlisi v. City of Marysville, s. 38

• Decision Date: 01 June 1964
• Docket Number: Nos. 38,J,s. 38
• Citation: 128 N.W.2d 477,373 Mich. 198
• Parties: Richard CARLISI, Administrator of the Estate of Theresa Carlisi, Deceased, Plaintiff and Appellant, v. CITY OF MARYSVILLE, a municipal corporation, Defendant and Appellee. Richard CARLISI, Administrator of the Estate of Frances Carlisi, Deceased, Plaintiff and Appellant, v. CITY OF MARYSVILLE, a muncipal corporation, Defendant and Appellee. an. Term, 39, Jan. Term.
• Court: Michigan Supreme Court

Page 477

128 N.W.2d 477

373 Mich. 198

Richard CARLISI, Administrator of the Estate of Theresa

Carlisi, Deceased, Plaintiff and Appellant, v. CITY OF MARYSVILLE, a municipal corporation, Defendant and Appellee.

Richard CARLISI, Administrator of the Estate of Frances

Carlisi, Deceased, Plaintiff and Appellant, v. CITY OF MARYSVILLE, a muncipal corporation, Defendant and Appellee.

Nos. 38, Jan. Term, 39, Jan. Term.

Supreme Court of Michigan.

June 1, 1964.

Gussin, Weinstein & Kroll, Detroit, for appellants.

Bush, Luce & Henderson, by Robert James Henderson, Port Huron, for appellee.

Before the Entire Bench, except BLACK, J.

DETHMERS, Justice.

Legal availability of the defense of governmental immunity from suit for damages resulting from the torts of a city's agents and employees is the question before us. Plaintiff appeals from judgments non obstante veredicto against him, granted on the grounds of such immunity after jury verdicts in his favor.

Plaintiff's decedents in these 2 combined cases were his daughters, 12 and 15 years old, respectively, at the time they were drowned on or adjacent to property of defendant city. The property, a city park, fronted on the St. Clair River. On a portion of it, near the river, is located defendant's water filtration plant. About 20 feet from and between the plant and the river is a concrete breakwall built to prevent erosion of land. Next to that is a dock that juts out into the water a considerable distance. When ships pass the water rushes out from shore, causing an undertow, and then rushes back again, swirling or eddying around the dock area. The water then is quite turbulent at the end of the dock. There is a considerable drop off on the river bottom some distance waterward from the breakwall. There had been a 'no swimming' sign in the area, but on the day in question it was down for repairs. The defendant sells water from this plant to its citizens for profit and to industry at double the rates to its citizens. Also on this property is a boat-launching ramp which, by arrangement with defendant, is operated by the American Legion, without payment by it to defendant for the privilege. The Legion charges $1 for use of the ramp by nonresidents of defendant city, but use is free to residents. The Legion enjoys a substantial income therefrom, which it uses for maintenance and improvement of the boatlaunching facilities and for other purposes of its own.

Plaintiff's decedents walked behind the filtration plant on the river side, jumped off the breakwall and waded into the river. A ship was passing nearby. When about 10 feet from the breakwall one of the girls screamed that she was being pulled out. The other went to her rescue but also was carried out when about 20 feet from the breakwall. Both were drowned.

Plaintiff charged the drownings to be due to undertow created by the passage of the ship, unusual action of returning waves because of presence of the dock, and to lack of warning by defendant of the danger of swimming because of the drop off in the river bottom and the wave action from passing ships and to permitting the public to swim there when defendant know of the dangers.

The drownings occurred on August 4, 1957, thus antedating the September 22, 1961, date of decision in Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1, so that, for whatever reason, the defense of governmental immunity applies if the case is based on negligence of agents or employees of defendant city in the performance of a governmental function. Defendant's maintenance of a public park is a governmental function. Heino v. City of Grand Rapids, 202 Mich. 363, 168 N.W. 512, L.R.A.1918F, 528; Royston v. City of Charlotte, 278 Mich. 255, 270 N.W. 288. Accordingly, plaintiff urges that a proprietary function of defendant is here involved, to which the defense is not applicable. Plaintiff's reliance is placed on the presence in the park of the water filtration plant and the boat-launching ramp, both operated for profit.

Construed in the light most favorable to plaintiff, there is no evidence of the slightest causal connection or relationship between the defendant's proprietary function, if any, and the drownings. The decedents, with others, were in the park for a picnic and swimming, not for business or any activity relating to the water filtration plant or the boat-launching ramp. The injuries did not result from the operation of those two functions, nor were plaintiffs in the park because of them. If defendant was guilty of negligence which was a probable cause of the injuries by failing to have the 'no swimming' sign up or to give warning of existing dangers, it had to do with the governmental function of maintaining a public park, not with the so-called proprietary functions.

Next, it is plaintiff's contention that defendant waived the immunity defense by purchase of a liability insurance policy, protecting it against personal injury claims, which contained the following provisions:

'It is agreed that * * * Marysville Post No. 449, American Legion, hereby added to this policy as an additional insured.

'The coverage provided for * * * American Legion shall be limited to coverage for liability incurred as a direct result of its operation of the 'Marysville dock area."

'It is agreed that in defense of suits against the insured the Company, if requested by the insured in writing, will not interpose as a defense the immunity of the insured from tort liability.'

In Podvin v. St. Joseph Hospital, 369 Mich. 65, 119 N.W.2d 108, this Court said:

'A clear majority of the Court stands against contention that a tortfeasor immune from liability at common law waives such immunity by purchasing and maintaining liability insurance.'

See, also, Stevens v. City of St. Clair Shores, 366 Mich. 341, 115 N.W.2d 69, and Sayers v. School District No. 1, 366 Mich. 217, 114 N.W.2d 191. The purchase of the liability insurance, in and of itself, does not constitute a waiver of the defense by the city. Is the answer otherwise in the instant case because of the provision in the policy that in the defense of suits against defendant city in insurance company will not interpose the defense of immunity if requested by defendant city, in writing, not to do so?

In support of his insistence that the answer to the last above question should be in the affirmative plaintiff cites Marshall v. City of Green Bay, 18 Wis.2d 496, 118 N.W.2d 715. In that case the insurance policy, in contrast to that in the case at bar, provided that 'the company will not avail itself of the defense that the city is not liable because of the performance of governmental functions.' The majority of the Wisconsin court held that this agreement was a waiver of governmental immunity by the city, agreed to by the insurer, for the benefit of third party beneficiaries; that is, claimants against the city. The court said, however, that it was not holding that a municipality waives its immunity by taking out a policy which does not contain the agreement by the insurance company to refrain from raising the defense. In the case at bar the insurer has not agreed to refrain absolutely, but only when requested in writing by the city to do so. Even under the Wisconsin holding, the condition or agreement there held to constitute the waiver could not come into being in the instant case until defendant city would request in writing that the insurance company refrain from raising the defense of immunity. That is not shown to have occurred here.

Plaintiff urges that the provision of the insurance policy, making it optional with defendant whether or not the insurance company may raise the immunity defense, places it in the hands of the city to discriminate between persons asserting tort claims against it. This, says plaintiff, amounts, in cases where the city does not request the insurer to waive the defense, to denial by defendant of equal protection of the laws. If, as plaintiff contends, the policy provision is thus violative of Federal and State constitutional guarantees and must, for that reason, fall, it avails the plaintiff nothing. No absolute agreement to refrain from raising the defense, as in the Wisconsin case, was effected here. It the insurer's agreement to refrain from raising it when so requested in writing by the insured suffers from the noted constitutional infirmity, nothing is left of the entire waiver provision and theory in this case.

Affirmed. Costs to defendant.

KELLY, J., concurred with DETHMERS, J.

ADAMS, Justice.

This case arises out of the drowning August 4, 1957, of two girls, 12 and 15 years old, in the St. Clair river adjacent to land owned by the City of Marysville and used by it as a park and for the operation of a water filtration plant.

After jury verdicts in favor of the plaintiff, the circuit court granted motions for judgments notwithstanding the verdicts, holding that as a matter of law there was no causal connection between the operation of the water filtration plant and the drownings,...