Foss v. City of Lansing

• Decision Date: 01 April 1927
• Docket Number: No. 62.,62.
• Citation: 212 N.W. 952,237 Mich. 633
• Parties: FOSS v. CITY OF LANSING.
• Court: Michigan Supreme Court

237 Mich. 633

212 N.W. 952

FOSS

v.CITY OF LANSING.

No. 62.

Supreme Court of Michigan.

April 1, 1927.

Error to Circuit Court, Ingham County; Leland W. Carr, Judge.

Action by Catherine Foss against the City of Lansing. Judgment for defendant on a directed verdict, and plaintiff brings error. Reversed, and new trial granted.

Argued before the Entire Court.A. M. Cummins, of Lansing, and Pulver & Bush, of Owosso, for appellant.

D. G. F. Warner, of Lansing, for appellee.

BIRD, J.

Plaintiff, in her declaration, alleges that on the 13th day of November, 1925, a city employee, driving a city truck, negligently ran into her automobile in which she was riding on the public highway, and that as a result thereof she was greatly injured and her automobile was greatly damaged.

The defendant pleaded the general issue and gave notice thereunder that it would show that said employee was engaged in performing a governmental function when said collision occurred, and by reason thereof defendant was not liable for the negligent acts of its servants.

The trial court took defendant's view of the transaction and directed a verdict for it. Plaintiff assigns error.

In the proofs it appears that the city council submitted the following resolution to the vote of the electors in 1916:

‘Shall a municipal garbage collection service be inaugurated and conducted by the city of Lansing, the initial cost of equipment not to exceed $10,000 as prescribed by resolution of city council of said city of Lansing adopted October 2, 1916, the maintenance of such garbage collection service to be defrayed by general taxation.'

This resolution was adopted by the electors on the 7th day of November, 1916. In pursuance of the authority therein given, the city council, on the 4th day of June, 1917, adopted the following ordinance:

‘The cost of the collection and disposal of the garbage of the city of Lansing, except for can service as hereinafter provided, shall be paid from the general city funds; the city shall provide the garbage cans or containers required by ordinance, and the superintendent of garbage shall collect, in advance, from the users of such cans a service charge to help pay the cost and maintenance of the same as follows: $1 for the period of any fiscal year, provided that the service charge for the balance of any fiscal year after November 1, shall be but 50 cents.'

In order to carry out the resolution adopted by the electors, the council purchased a farm five miles west of the city and experimented with different methods of disposing of the city garbage. It finally settled on the plan of raising and purchasing hogs, feeding the garbage collected from the city to them, and, when they were fit for the market, disposing of them. It was while engaged in conveying garbage cans that the city truck collided with plaintiff's automobile. It was conceded on the argument that the service charge of $1 for the can and the profit arising from feeding the hogs helped to reduce the cost of garbage disposal.

It is insisted upon the part of the city attorney that, in disposing of the city garbage, it was performing a governmental function and therefore was not liable for the negligent acts of its servants. Plaintiff's counsel were inclined to and did concede that it was a governmental function, but they insist, when a governmental function is performed with an incidental profit, that the city is not entitled to the exemption. Under these contentions it will be unnecessary to discuss the question as to whether the city was engaged in performing a governmental function in disposing of the garbage. It is conceded...