Detroit v. Blackeby

Decision Date07 July 1870
CourtMichigan Supreme Court
PartiesThe City of Detroit v. William Blackeby and Hannah Blackeby

Heard May 4, 1870; May 5, 1870. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action on the case brought in the circuit court for the county of Wayne, by William Blackeby and Hannah Blackeby, against the city of Detroit, for an injury to Mrs. Blackeby, occasioned by a defective sidewalk.

The defendant pleaded the general issue.

The bill of exceptions states that the plaintiffs' evidence tended to show the following facts, viz.: That the plaintiffs were husband and wife; that on the 13th day of December, 1868, the plaintiff, Hannah Blackeby, who is about sixty years of age, was passing along Michigan avenue, in the city of Detroit, on the southerly side of the avenue, and that upon the crosswalk across Ninth street she stepped into a hole in said walk and tripped and fell, breaking her arm in two places, and otherwise seriously injuring herself; said crosswalk was in a very dilapidated and dangerous condition, three of the six planks being gone, leaving a hole, or holes, there, from six to twelve inches deep, with sleepers running crosswise of the walk; that this crosswalk had been thus out of repair from July or August, 1868; that at the time of the accident these holes were filled with loose snow, which had drifted into them on that day, so that upon the surface it appeared to be level, the planks and holes being covered with snow; that the walk had been broken and torn up during the paving of Michigan avenue, in July, 1868, and had been notoriously out of repair from that time to the time of the accident.

The circuit judge charged the jury as follows:

Gentlemen of the jury--This case, gentlemen, has some questions of law in it, and also questions of fact. The question of law is, whether the city is liable at all or not; the question of fact, if it is liable, as to what amount. The fact of injury is not disputed; the fact that the party in the case has been injured is admitted on both sides, so that you will have no difficulty with that. But the question whether the city is liable or not is a question of law for the court, and with that you have nothing to do, except to receive the law as given you by the court. But the question of the amount of damages that the party is entitled to receive, if any, is entirely and only a question of fact for you; with that the court has nothing to do. It will be for you to determine, under the circumstances and the law of the case, what the party is entitled to receive; it will be your duty to do that without regard to the effect, without regard to the parties, without regard to anything but the mere facts of the case, and the law of the case as given to you by the court. It is entirely immaterial what has been the verdict on a former trial. The object of your being here to-day is to try the case yourself, and as the points are fully set forth in the requests to charge by the defendant, I will comment on these.

Here the said circuit judge read, in their order, fourteen written requests of the counsel for the defendant to charge the jury, and commented upon them severally as follows, viz.:

1. "That the jury cannot, upon the whole evidence in the case, render a verdict for the plaintiffs." By the court: That is refused.

2. "That if the snow upon the walk was the immediate cause of the injury, and the jury find that but for the snow on the walk the injury would not have occurred, then the plaintiffs cannot recover." By the court: That is refused, as requested. If you find that the walk was in good repair, and that in consequence of the snow, or that the city had not had proper notice, the injury happened, that would be one thing; but if you shall find that the cause of the injury was the walk being out of repair, the snow being upon it, then the plaintiffs may be entitled to recover. So that is refused, as asked.

7. "That if the jury find that the defect complained of was on a crosswalk, then the plaintiffs cannot recover, because of the want of funds to repair the same." By the court: That is refused. That states a fact. The evidence in the case, so far as that is concerned, shows that the funds were some $ 26 overdrawn upon a certain day, and upon a certain day afterward they were several hundred dollars overdrawn.

11. "That no notice to the defendant of the defect in the walk has been proved, and consequently plaintiffs cannot recover." By the court: That is refused. It is for you to consider whether notice has been shown or not. If the walk was in a condition out of repair, so that the proper officers should have known it, then the city is equally as liable as though they had written notice. The jury are to consider whether the city should have known that the walk was out of repair or not; but whether they did know it or not, the jury are at liberty to consider the facts, and determine whether the city had actual notice or not.

The other requests relate rather to extent of the injury, and the prudence of the injured plaintiff, than to the liability of the defendant.

Judgment reversed, with costs.

J. P. Whittemore, for plaintiffs in error:

Proposition. That municipal corporations, in respect to their governmental functions, are not answerable in damages to individuals, but only to the people on indictment. The damages here claimed by an individual are for neglect of governmental duty, hence the action cannot be maintained.

The principle we rely upon, that governments are not liable to individuals for infraction of law, or imperfect execution or enforcement thereof, or for failure to discharge governmental duty, inheres in the relation of government and subject; it is independent of the rule that a state cannot be impleaded in its own courts--which latter rule only affects the remedy, and not the right; while the principle we rely upon is founded in that practical common sense which accepts the imperfections of human government as a necessity, and does not attempt to make society a voluntary insurance company, or establish the Utopian theory of a perfect and infallible government.

The city of Detroit is a governmental corporation. It has no rights or powers of government which are not held at the will of the state legislature. It has no property which is not held at the legislative will; none that has not been paid for by general or special tax upon its inhabitants. It has no more of a proprietary interest in any property thus acquired, than in case of special tax on frontage, for street paving, the resident tax payers acquire to the street, or the improvement thus made.

As a corporation, it is the mere naked trustee of governmental powers; with precisely the same relations to individuals within its boundaries and jurisdiction, as are held by the state to the people at large. As a body corporate, it has the same interest as the state in the exercise of its powers and functions; it receives no more reward, it derives no more income from the discharge of its duty. If it incurs a debt or a pecuniary obligation in the discharge of its duties, it can be sued in the courts of the state, and compelled to levy a tax to pay it.

The state, it is true, cannot be sued in its own courts, by reason of want of power in the court, not of a difference in the nature of the respective corporations. This municipal corporation is a sovereignty within a sovereignty, imperium in imperio.

Our proposition as stated is sustained by the whole body of the common law, without exception, both in England and America, up to the decision of Mayor v. Furze by the Supreme Court of New York in 1842, and by many decisions in America since that time. Vide Lane v. Cotton, 1 Ld. Raym., 646; Whitfield v. Le Despencer, Cowp., 754; Buttrick v. Lowell, 1 Allen 172; Walcott v. Swampscott, Id., 101 (decided in 1861); Richmond v. Long, 17 Gratt. 375; Fowler v. Alexandria, 3 Pet. 398; Mitchell v. Rockland, 52 Me. 118; Bigelow v. Randolph, 14 Gray 541; Barney v. Lowell, 98 Mass. 570, and cases cited; Eastman v. Meredith, and cases cited, 36 N. H., 284; Freeholders v. Strader, 3 Harr. 108; 27 N. J., 415; 29 Id. 345; 32 Id. 394; 13 B. Monroe, 559; 12 Lou. Ann., 481; 12 Ohio N. S., 375; Mower v. Leicester, 9 Mass.; Daagan v. Mayor of Mobile, 31 Ala. 469; Duke v. Mayor, 20 Georgia 635; Morey v. Newfane, 8 Barb. 645; Brinkmeyer v. Evansville, 29 Ind. 187; Russell v. Men of Devon, 2 Term R., 667; Bartlett v. Crozier, 17 J. R., 438 Martin v. Mayor (decided in 1841); 1 Hill 545; Griffin v. Mayor, 9 N. Y., 456 (decided in New York court of appeals in April, 1854).

In 1842, the courts of the state of New York initiated a departure from the line of the common law on this subject, upon the strength of assertions which had foundation neither in reason nor authority; which departure had an extensive following in other courts. In 1854, New York returned to the beaten path of the common law, but in 1856, her courts went again astray upon the strength of equally unfounded assertion, and in this last departure have had an extensive following, in which it is now proposed the courts of Michigan should join.

The courts of Michigan refused to follow the departure of 1842, and we may be excused if we refuse to follow the new departure of 1856, which has no better support in either law or reason than that of 1842.

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