Christie v. Board of Regents of University of Mich.

• Decision Date: 22 September 1961
• Docket Number: No. 59,59
• Citation: 111 N.W.2d 30,364 Mich. 202
• Parties: Kirk CHRISTIE, by his next frlend, Clarence Chaistie, Plaintiff-Appellee, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 30

111 N.W.2d 30

364 Mich. 202

Kirk CHRISTIE, by his next frlend, Clarence Chaistie Plaintiff-Appellee, v. BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendants-Appellants.

No. 59.

Supreme Court of Michigan.

Sept. 22, 1961.

Burke, Burke and Ryan, Ann Arbor, for defendants and appellants.

Foster, Foster, Campbell & Lindemer, Lansing, Theodore W. Swift, Edmund E. Spepherd, Lansing, of counsel, for plaintiff and appellee.

Before the Entire Bench except DETHMERS, C. J., and SMITH, J.

BLACK, Justice (for affirmance).

Comes the intruder spoilsport as the legislative and judicial branches continue their gambol o'er the field of sovereign immunity. Here the recurrent problem--what to do with another aspect of such immunity--cannot be buck-lateraled to the legislature. By the Constitution that august body has been rendered ineligible to receive, in to day's game, any kind of a pass from the judicial branch.

Plaintiff at 7 years of age, uses for personal injury said to have been negligently inflicted while he was a patient--during early infancy--in the University Hospital. The asserted negligence consists of permitting him to fall 'from an unattended crib from which all restraints had been removed.'

Suit was commenced by summons. With commencement of suit plaintiff filed a petition for discovery, asking among other things that the defendant Board of Regents be compelled 'to produce its policy of liability insurance for the inspection and examination by the plaintiff.' The circuit judge entered an order for production and inspection of the policy, doing so on theory that the policy should be ordered in as possibly admissible evidence tending to establish that the defendant Board had waived its immunity from liability, to the plaintiff, to the extent of the insurer's monetary obligation.

On application of defendant and grant of leave we review such order for production and inspection. Plaintiff's statement of the reviewable question is comprehensive and fully explanatory:

'In civil action against Board of Regents of University of Michigan for personal injuries suffered by infant patient of University Hospital through negligence of defendants' servants, agents and employees, did circuit judge abuse his discretion on plaintiff's amended petition for discovery filed prior to declaration when he ordered defendants to produce for plaintiff's examination the contract of insurance existing between them and their liability insurance carrier when the cause of action arose?'

I would affirm on ground that the questioned order is well within the discretionary authority Court Rule No. 40 (1945) provides. The relevantly sole requirement of that rule is that there be fair showing that the petitioning plaintiff needs such production and inspection in order to declare properly the cause his petition supposedly portrays.

Does this plaintiff need the policy in order to declare? From the face of his untraversed petition I conclude he does. McNair v. State Highway Dept., 305 Mich. 181, 9 N.W.2d 52 has made it abundantly clear that when an apparently immune public body is sued on allegation of fort liability the plaintiff must allege facts which, if true, overcome the standard posture of such body that 'no court can hold us liable.' In a word, a part of this plaintiff's burden is that of duty to plead and prove some status which legally impairs or destroys the defendant Board's seeming exemption. No waiver by neglect to raise the question can exist (McNair, supra) and so it is necessary to explore the ultimate and decisive question: Whether the resolution of the defendant Board to acquire and maintain such liability insurance operates as a matter of law to waive its immunity to the extent of the insurer's obligation.

I agree with the statement of the annotator of a recent and exhaustive appraisal of this question who says (annotation headed 'Liability or indemnity insurance carried by governmental unit as affecting immunity from tort liability'; 68 A.L.R.2d 1437, 1448):

'In a few jurisdictions the courts have taken the view (which is worthy of characterization as enlightened) that to the extent that a liability insurance policy protects a governmental unit against tort liability, the otherwiseexisting immunity of the unit is removed.'

In this case there are two good reasons for concurrence with the annotator's conclusion that such is the 'enlightened' view. The first is that the fact of such insurance has eliminated the classically suave reason for imminity of the defendant Board from liability (if proven) to this plaintiff. ¹ The other and specially distnctive reason is that the defendant Board is so far autonomous and constitutionally independent as to clothe it with plenary as well as exclusive power of waiver of such immunity and that it has already exercised such power so far as concerns this case.

The first point--that the Board's determination to acquire and carry liability insurance removes the historic reason for immunity--requires no extended analysis. We are yer free to pick and choose among authorities extant. My choice, if it were presently necessary to choose, would be with the 'enlightened'--and visibly growing--minority. As the cited annotation shows, the more numerous authorities adhere to position that public bodies, having spent public money for liability protection thereby incur no liability; a game which in fact if not by design unjustly enriches the insurer for carrying a risk where there is no risk. ² Other authorities, 'enlightened' I repeat, pursue the opposite and more explicable view.

Whatever view one may take of this diversity, the majority rule becomes irrelevant when it is shown that the critical bastion thereof (that the legislature only may waive) is non-existent. Such is the case here. If the defendant, board is by the Constitution given the exclusive power to waive, then it would surely seem that the reasoning of such minority is best for the specific case at bar.

The Board of Regents is a separate and self-governing body corporate, made so by the Constitution (Const.1908, § 4, article 11). By our decisions it is 'a constitutional corporation of independent authority, which, within the scope of its functions, is co-ordinate with and equal to that of the legislature.' It has 'independent control of the affairs of the University by authority of these constitutional provisions' (quotations from Board of Regents of University of Michigan v. Auditor General, 167 Mich. 444, 450, 132 N.W. 1037, 1040), and so its counsel are right when they insist in their brief that the legislature (as in the case of the State proper and its statutory agencies) cannot waive the immunity of the Board without consent of the Board. ³ But this is a knife with two edges. If the Board by the Constitution stands separate from and declaredly equal to the legislature, then it alone has a right to waive and, by the same token, a right to reject any legislative act of waiver in its behalf. By the past and tried reasoning of this Court the Board is, 'within the scope of its functions,' its own legislator and may legislate that which I find implicit in its decision to carry the insurance that this plaintiff would unearth for the purposes of pleading.

Consider these interpretations we have made of the eleventh article and its predecessor:

'But the people, who are the corporators of this institution of learning, have by their constitution conferred the entire control and management of its affairs and property upon the corporation designated as the 'Regents of the University of Michigan,' and have thereby excluded all departments of the State government from any interference therewith. The fact that it is State property does not bring the Regents within the purview of the statute. The people may, by their constitution, place any of its institutions or property beyond the control of the legislature.' Weinberg v. Regents of the University, 97 Mich. 246, 254, 255, 56 N.W. 605, 608.

'The board of regents and the legislature derive their power from the same supreme authority, namely, the constitution. In so far as the powers of each are defined by that instrument, limitations are imposed, and a direct power conferred upon one necessarily excludes its existence in the other, in the absence of language showing the contrary intent. Neither the University nor the board of regents is mentioned in article 4, which defines the powers and duties of the legislature; nor in the article relating to the University and the board of regents is there any language which can be construed into conferring upon or reserving any control over that institution in the legislature. They are separate and distinct constitutional bodies, with the powers of the regents defined. By no rule of construction can it be held that either can encroach upon or exercise the powers conferred upon the other.' Sterling v. Regents of University, 100 Mich. 369, 382, 68 N.W. 253, 257, 34 L.R.A. 150.

'By the provisions of the Constitution of 1850, repeated in the new Constitution of 1909, the board of regents is made the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is co-ordinate with and equal to that of the legislature. By the old Constitution it is given 'direction and control of all expenditures from the University interest fund' (section 8, art. 13); and by the new Constitution 'general supervision of the University, and the direction and control of all expenditures from the University funds.' Section 5, art. 11. That the board, of regents has independent control of the affairs of the University by authority of these constitutional provisions is well settled by former decisions of this court. (Citing and quoting cases)' Board of Regents of University of Michigan v. Auditor General, 167 Mich. 444, 450, 451, 132 N.W. 1037.

'They [the people] have...