Fox v. Board of Regents of University of Mich.

• Decision Date: 09 April 1965
• Docket Number: Nos. 70-72,s. 70-72
• Citation: 375 Mich. 238,134 N.W.2d 146
• Parties: Pearl FOX, Plaintiff and Appellee, v. The BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, (Appellant), et al., Defendants. Albert HYMA, Plaintiff and Appellee, v. The BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, Defendant and Appellant. Arthur MITCHELL, Plaintiff and Appellee, v. The BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN, (Appellant), et al., Defendants.
• Court: Michigan Supreme Court

Page 146

134 N.W.2d 146

375 Mich. 238

Pearl FOX, Plaintiff and Appellee, v. The BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN,

(Appellant), et al., Defendants.

Albert HYMA, Plaintiff and Appellee, v. The BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN,

Defendant and Appellant.

Arthur MITCHELL, Plaintiff and Appellee, v. The BOARD OF REGENTS OF the UNIVERSITY OF MICHIGAN,

(Appellant), et al., Defendants.

Nos. 70-72.

Supreme Court of Michigan.

April 9, 1965.

Conlin, Conlin, Parker, McKenney & Wood, Albert J. Rapp, Dulgeroff & Toomey, Ann Arbor, Glassen, Parr, Rhead & McLean, Lansing, for plaintiffs.

Burke, Burke, Ryan & Roberts, Ann Arbor, for defendants.

Before the Entire Bench.

KAVANAGH, Chief Justice.

Separate actions were commenced in the Washtenaw county circuit court by the various plaintiffs against the board of regents of the university of Michigan and others.

In the Fox and Mitchell cases the declarations were filed in two counts:

Count one alleged that the university hospital, an agency controlled by the board of regents, made warranties as to the qualifications, knowledge and skill of its agents and employees, being doctors employed at the said hospital, which qualifications were ordinarily possessed and exercised by members of the medical profession in the locality, and that the warranties were breached in that the diagnosis, treatment and surgery performed on plaintiff was unskillfully and negligently performed, resulting in permanent injury and disability to the plaintiff.

Count two was entitled 'trespass on the case,' in which the claim was made that the defendant board of regents was responsible for the negligent and unskillful performance of surgery and treatment during plaintiff's hospitalization.

Subsequent amendments to the declarations alleged breach of contract and eventually an additional amendment was filed alleging that any immunity from liability on the part of the board of regents had been waived by the purchase of a comprehensive general liability insurance policy.

The Hyma case was begun by summons. No declaration was filed.

Motions to dismiss the cases as to the regents of the university of Michigan only were filed. The motions were based upon the ruling of this Court in Glass v. Dudley Paper Co., 365 Mich. 227, 112 N.W.2d 489, in which it was held that the circuit courts of this State did not have jurisdiction to entertain claims against the governing body of Michigan State university, for the reason such jurisdiction is vested by statute ¹ exclusively in the court of claims. A similar rule would apply to the board of regents of the university of Michigan.

The trial court held that it did not have jurisdiction but that serious injustice would result by reason of the running of the statute of limitations in a court of claims action if dismissal were granted. The trial court instead ordered transfer of jurisdiction to the court of claims.

On leave granted, the board of regents of the university of Michigan presented the following question:

'Can the circuit court, which has acknowledged itself to be without jurisdiction to entertain and determine the issues of fact and law presented, by reason of the court of claims act, which vests that court with exclusive jurisdiction to hear and determine claims against the defendant, enter an order transferring the cause from the circuit court to the court of claims?'

Plaintiffs contend that the General Court Rules of 1963 are to be construed to secure the just, speedy and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceedings which does not affect the substantial rights of the parties.

Plaintiffs further contend the spirit and effect of the Revised Judicature Act of 1961 is to eliminate the old concepts of 'jurisdiction' and to assure that actions shall be justly and promptly heard without stilted concepts of territorial or other limitations by permitting transfer to the proper forum if filed in an improper forum. They also argue that the law in Michigan prior to Glass permitted the bringing of such an action in the Washtenaw circuit court, since actions had...