Dohm v. Acme Tp., s. 47

• Decision Date: 02 December 1958
• Docket Number: Nos. 47,48,s. 47
• Citation: 354 Mich. 447,93 N.W.2d 323
• Parties: Alta Marie DOHM, Plaintiff and Appellee, v. TOWNSHIP of ACME, a Municipal Corporation, Defendant and Appellant. Tony DOHM, Plaintiff and Appellee, v. TOWNSHIP of ACME, a Municipal Corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 323

93 N.W.2d 323

354 Mich. 447

Alta Marie DOHM, Plaintiff and Appellee, v. TOWNSHIP of ACME, a Municipal Corporation, Defendant and Appellant.

Tony DOHM, Plaintiff and Appellee, v. TOWNSHIP of ACME, a Municipal Corporation, Defendant and Appellant.

Nos. 47, 48.

Supreme Court of Michigan.

Dec. 2, 1958.

Running & Wise, Traverse City, for appellant.

James R. Zerafa, Elk Rapids, for appellees.

Before the Entire Bench.

CARR, Justice.

At the time of the occurrence resulting in these actions for damages the defendant maintained a two-story frame building in the village of Acme, primarily for use as a township hall. The second story was rented to a fraternal organization, and the township customarily granted to persons applying therefor the right to use the first floor for private purposes. The township clerk was granted authority by the township board to make a charge for such use, the minimum being fixed at $3 with the right to increase that amount in the discretion of the clerk. Apparently the only limitation imposed was that the hall might not be used for any private purpose involving financial benefit.

Plaintiff Alta Marie Dohm, acting at the request of friends, made application for the use of the first floor of the hall for the evening of October 30, 1954, the purpose being the holding of a wedding anniversary celebration. Plaintiffs here were guests at the party. While not of material importance, the persons for whom the reservation was made had not paid the rental for the use of the hall prior to the time of trial, but the question of liability therefor is not in dispute. During the course of the party Mrs. Dohm undertook to leave the hall by a rear entrance for the purpose of going to an outhouse maintained by defendant township at the rear of said hall. It was dark at the time. While descending the steps and, as she claimed, endeavoring to assist another guest, she fell and was injured. She brought action for damages against the township on the theory of negligence in not properly maintaining the steps where the accident occurred, and in not causing them to be properly lighted. Her husband sued to recover his incidental damages resulting from Mrs. Dohm's injuries.

The cases were consolidated for trial. It was the claim of each plaintiff in circuit court that the steps were in a defective condition as a result of decay and protruding nails. It further appears that a light bulb placed above the rear entrance to the hall had been broken, thus creating a situation making it difficult for one using the steps to discover the defects. Plaintiffs further claimed that the condition had existed for such length of time as to fairly charge the defendant township and its officers with notice thereof.

In advance of trial defendant moved for dismissals on the ground to governmental immunity. The motion was denied and the trial proceeded. Motions for directed verdicts were made at the conclusion of plaintiffs' proofs and renewed prior to submission to the jury, said motions being taken under advisement by the trial judge. Verdict of $3,250 was returned in favor of Mrs. Dohm and of $1,000 in favor of the other plaintiff. Motions for judgments notwithstanding the verdicts and for a new trial were made and denied. Defendant has appealed, asserting as the basis for its claim of non-liability that it was in the exercise of a governmental as distinguished from a proprietary function, and immune from tort liability for failing to properly maintain the town hall.

The legal question presented is one that has been repeatedly considered by courts in this State and elsewhere. Generally speaking, the nature of the function involved and the particular facts attending its exercise have been deemed of controlling significance. Thus in Stevens v. City of Muskegon, 111 Mich. 72, 78, 79, 69 N.W. 227, 229, 36 L.R.A. 777, it was said:

'The authorities recognize that municipalities act in two capacities, the one governmental and the other quasi private. When acting in the latter capacity, they are subject to the same rules that govern private corporations or individuals in their transactions with others. In the latter case the doctrine of strict construction is not applied, and courts do not look for express authority for the exercise of the power. The power is inherent in them to make contracts for lighting streets and public buildings, to secure water for fire and other purposes, and to construct sewers in order to protect the health of the inhabitants. It may be, and often is, difficult to determine in which capacity a municipality is acting in a given case, but the distinction is well settled. Chief Justice Nelson, in Bailey v. Mayor, etc., of New York, 3 Hill , 539 (38 Am.Dec. 669), thus states it:

"The distinction is quite clear and well settled, and the process of separation practicable. To this end regard should be had, not so much to the nature and character of the various powers conferred as to the object and purpose of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its [public], political, or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands on the same footing as would any individual or body of persons upon whom the like special franchises had been conferred."

In Hodgins v. Bay City, 156 Mich. 687, 121 N.W. 274, 276, plaintiff's intestate was electrocuted as the result of the defective condition of a wire carrying electric current as a part of the commercial lighting system maintained by the defendant city. Discussing prior decisions of this Court as well as cases from other States, it was held:

'that the municipality, in furnishing electric light, is discharged from liability for the negligence of its officers, agents, and employes when furnishing the service for lighting its public streets, public places, and buildings, and that it is liable for such negligence in furnishing light to its inhabitants for remuneration.'

Other decisions of this Court have also recognized that functions vested by law in municipalities and governmental agencies may be, in certain phases thereof, of a governmental character, and otherwise involve the exercise of a governmental proprietary business activity. Among the cases presenting situations of this character are: Rowland v. Kalamazoo Superintendents of Poor, 49 Mich. 553, 14 N.W. 494; Foss v. City of Lansing, 237 Mich. 633, 212 N.W. 952, 52 A.L.R. 185; Matthews v. City of Detroit, 291 Mich. 161, 289 N.W. 115. The decisions of the supreme court of Arizona in Saways v. Tucson High School District No. 1 of Pima County, 78 Ariz. 389, 281 P.2d 105, 108 is of interest in this...