Daszkiewicz v. Bd. of Educ. of Detroit

• Decision Date: 17 March 1942
• Docket Number: No. 81.,81.
• Citation: 301 Mich. 212,3 N.W.2d 71
• Parties: DASZKIEWICZ v. BOARD OF EDUCATION OF CITY OF DETROIT.
• Court: Michigan Supreme Court

301 Mich. 212

3 N.W.2d 71

DASZKIEWICZ

v.BOARD OF EDUCATION OF CITY OF DETROIT.

No. 81.

Supreme Court of Michigan.

March 17, 1942.

Action by John Daszkiewicz, administrator of the estate of Zygfried Daszkiewicz, deceased, against the Board of Education of the City of Detroit to recover damages for intestate's death. Judgment for defendant, and plaintiff appeals.

Affirmed.Appeal from Circuit Court, Wayne County; Sherman D. Callender, judge.

Before the Entire Bench, except WIEST, J.

Edmund M. Sloman, of Detroit, for appellant.

Paul E. Krause and Clarence E. Page, both of Detroit, for appellee.

STARR, Justice.

Defendant, Board of Education of the City of Detroit, owns and conducts Wayne University which includes a college of medicine. Plaintiff's decedent son, 22 years old, was a sophomore in the college of medicine. On December 15, 1937, he fell into an elevator shaft located in the medical school building, sustaining injuries which resulted in his death five days later.

Plaintiff began suit to recover damages resulting from the death of his decedent and alleged that defendant was negligent in failing to keep and maintain the automatic elevator in the medical school building and the elevator doors in a safe and proper condition, and in failing to have said elevator and safety devices connected therewith properly inspected. Defendant's answer denied the charge of negligence; also denied that plaintiff's decedent was free from contributory negligence, and alleged, in substance, that in conducting Wayne University medical school, it was engaged as a State agency in a governmental function and, therefore, was not liable for the negligence of its employees.

The case was tried before a jury. Plaintiff presented evidence that his decedent son was a member of a class doing experimental work on dogs in the physiology laboratory on the fifth floor of the medical building; that, accompanied by a laboratory assistant, he went in the automatic elevator to the basement where dogs, to be used in the experimental work, were kept in cages; that he obtained a dog and returned to the laboratory; that he decided not to use such dog and asked a classmate named Bronson to accompany him to the basement to get another dog. Bronson testified:

‘After he (plaintiff's decedent) said that we went out into the corridor of the laboratory and stood there a second and talked. They used to take a piece of rope, tie it around the dog's neck so it would act as a leash. * * * He had it on the rope, and was leading it with his rope. The dog was nervous and frightened and excited, and it wouldn't mind very well. * * *

‘I was standing a little slightly in back of him and to the left side of him and facing him, and Ziggy (plaintiff's decedent) was standing sideways to the elevator door and facing me and we were conversing, and the dog was standing in between us and a little in back of us on a leash. * * *

‘The laboratory door is almost directly in front of the elevator. * * *

‘I believe that Zygfried pushed the elevator button.

‘The elevator is a quiet elevator. There is an electrical hum that you hear. How long had we waited after he pushed the button? I could not say exactly. It seemed a few moments. * * *

‘Q. And what happened then? A. Well, as far as I can recall Zygfried reached over with his left hand and just pulled the door open and stepped, and as he stepped I realized that the shaft was dark, and I grabbed him, as he was falling.

‘I held on to him, but I had leather heels on, and I slipped, and my one foot slipped into the shaft and I let go.

‘If I had held onto him I would have been pulled right with him.

‘The elevator swinging closed was what stopped me from going all the way into the shaft.

‘Q. Did you think the elevator was there when the door started to open? A. Well, I could not say. All I know was I realized the elevator was not there when the door came open and he had stepped. * * *

‘The door of the elevator does not open all itself, it has to be pulled open.

‘It was the kind of an elevator that was supposed to open up only when the car was at the floor. * * *

‘Usually you cannot open the door before the elevator gets to the floor.'

On cross-examination Bronson testified:

‘He must have pressed the button with his left hand.

‘I imagine he was looking at the dog and me at the time he pressed the button.

‘I realized that the elevator was not there as he had opened the door.

‘He was looking at me had still talking at the time he stepped into the elevator shaft. * * *

‘Q. Mr. Bronson, I believe you said that when the plaintiff stepped into the shaft that he was looking in the direction of the dog and yourself, is that right? A. Yes.

‘Q. So he could not see whether or not the elevator was or was not there at the time. A. No.'

An elevator mechanic, called as a witness by plaintiff, testified that the elevator in the medical school was a ‘standard automatic elevator,’ equipped with an electromechanical lock, and that, if the lock was in working condition, the elevator door at a floor could not be opened unless the elevator was at the floor; that he examined the lock on the elevator door the day after the accident. Such witness further testified:

‘I found that the fifth floor door could be opened when the elevator was not there. The cause of that was a worn bar. On this particular lock there is what would look like a hooded finger.

‘When you close the door this trips down into a steel box, and while it is there it can't be opened if the elevator is not at the floor if it is in proper condition; and this bar that trips down here it had worn so instead of going in so it would hold itself when you pulled against it, it would slip over. * * *

‘I found no other cause for that accident outside of the wear on that particular latch. There was no breaking of any part of the mechanism.

‘To repair that lock at that time, I filed that lock so it was square, so it wouldn't slide off the catch. * * *

‘In my opinion, this was the type of wear that an experienced elevator mechanic or service man could have detected. * * *

‘Q. In your opinion, to keep that elevator and its doors in proper operating condition and safe condition, how often should that elevator and those doors be inspected? * * * A. I would say once every two weeks by an experienced mechanic.'

There was testimony that the elevator had not been regularly inspected; that the last inspection was about four months before the accident; and that two or three days after the accident an entirely new lock was placed on the elevator door.

Defendant's business manager testified that the total cost of operating Wayne University medical school for the year period from July 1, 1937, to June 30, 1938, was $282,712.28, of which $79,052 was collected as tuition fees from students, and the balance of $203,660.28 was raised by taxation; and that tuition fees collected ‘go into the general fund of the Board of Education.'

It was admitted that at the time of the accident the deceased's tuition and other fees had been paid.

At the close of all testimony defendant moved for directed verdict of the ground that ‘the Board of Education of the City of Detroit, is a State agency performing a governmental function, and as such is not liable for the tortious acts of its agents,’ and that plaintiff's decedent was guilty of contributory negligence as a matter of law. The court reserved decision on such motion and submitted the case to the jury. The jury returned verdict of no cause of action, on which judgment for defendant was entered. Plaintiff's motion and supplemental motion for new trial were denied, and he appeals.

The court's opinion denying plaintiff's motion for new trial stated, in part: ‘The court is obliged to say that if the jury had returned a verdict for the plaintiff and against the defendant, the court would have granted the reserved motion to direct a verdict of no cause of action.'

Plaintiff admits that defendant, in operating the public schools of the city of Detroit, including the kindergarten through the twelfth grade, in which all children are admitted to classes and no tuition is charged resident students, is performing exclusively a governmental function and would not be liable for the negligence of its employees in the conduct and operation of such schools. However, plaintiff contends that defendant, in operating Wayne University medical school, to which tuition is charged and to which students are admitted only upon approval by a committee on admissions, is not performing a purely governmental function, but is engaged as a quasi municipal corporation in a proprietary enterprise and is, therefore, liable for the negligence of its employees. Plaintiff's counsel states in his brief:

‘A different situation arises in the operation of Wayne University College of Medicine. In the first place, regardless of the educational qualifications of an applicant, he is not permitted to attend such college unless his application has first been approved by a committee on admissions consisting of 12 members including the dean of the college, a group of members of which committee interviews the applicant as to his background, antecedents, family and personal history, and, from such examination and investigation of references, either approves the application or rejects the same. The decision of such committee is final. In the second place, even if an applicant has secured the approval of the committee on admissions, his attendance at the college is conditional upon the payment of certain fixed charges and a tuition of at least $94.34 each quarter.

‘It is my contention that the defendant in the operation and conduct of such medical college comes within the category of municipal or other quasi-public corporations, who, under their charters are...