Hirych v. State
| Citation | 136 N.W.2d 910,376 Mich. 384 |
| Decision Date | 04 October 1965 |
| Docket Number | Nos. 39,40,s. 39 |
| Parties | Edward HIRYCH, Plaintiff and Appellant, v. The STATE of Michigan, Michigan State Fair Commission (Authority), a/k/a Michigan State Fair and Exposition, the City of Detroit, a Municipal Corporation, Herbert Hart, Police Commissioner of City of Detroit, et al., Defendants and Appellees. Vitold William KLIMEK, Plaintiff and Appellant, v. The STATE of Michigan, Michigan State Fair Commission (Authority), a/k/a Michigan State Fair and Exposition, the City of Detroit, a Municipal Corporation, Herbert Hart, Police Commissioner of City of Detroit, et al., Defendants and Appellees. * |
| Court | Supreme Court of Michigan |
Walter A. Kurz, Detroit, for plaintiffs and appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Mario Hector Cisneros, Asst. Atty. Gen., Lansing, for defendant-appellees.
Robert Reese, Corp. Counsel, John E. Cross, William P. Doran, Asst. Corp. Counsel, Detroit, for defendants and appellees.
Before the Entire Bench.
Plaintiffs appeal from a dismissal of the State of Michigan and the Michigan State Fair Commission and, also, from a summary judgment granted the City of Detroit and Police Commissioner Hart.
On September 2, 1960, plaintiffs paid for admission to the Michigan State Fair. While on the grounds, they claim they became involved with 'a huge gang of youthful rowdies', that they were attacked by guards in street clothes employed by the State Fair, that the guards imprisoned them, that while in jail at the fair grounds they were searched by Detroit police and then taken to Detroit police headquarters. On September 3, 1960, they were tried in recorder's court on a charge of disturbing the peace and found not guilty. About two years later, plaintiffs filed suit. Their declarations contained counts for assault and battery, false arrest, malicious prosecution and claims in assumpsit. Amended declarations added two counts under the Federal Civil Rights Act. 1
The trial judge granted a motion to dismiss the State of Michigan and the Michigan State Fair Commission for lack of jurisdiction, exclusive jurisdiction for claims against the State and its commissions being vested in the Court of Claims. C.L.1948, § 691.101 et seq. (Stat.Ann.1959 Cum.Supp. § 27.3548 et seq.). 2 The jurisdiction and constitutionality of the Court of Claims was passed upon by this Court in Glass v. Dudley Paper Company, 365 Mich. 227, 112 N.W.2d 489. See, also, Fox v. Board of Regents of University of Michigan, 375 Mich. 238, 134 N.W.2d 146, and McElrath v. United States, 102 U.S. 426, 440, 26 L.Ed. 189. While the latter case upheld the constitutionality of the United States Court of Claims, the reasoning is relevant here.
The Michigan State Fair Commission was created by P.A.1956, No. 100 (C.L.S.1956 & 1961, § 291.1 et seq. [Stat.Ann.1958 Rev. § 12.1280(1) et seq.]), its members to be appointed by the governor. The objective of the Commission was 'for the purpose of promoting all phases of the economy of Michigan.' The Commission was replaced by the Michigan State Fair Authority by virtue of P.A.1962, No. 224 (Stat.Ann.1963 Cum.Supp. § 12.1280 et seq.). Section 3 of that act provides that the Authority succeeds to all the rights, powers and duties of the Commission, while section 1 of the act provides that the Authority 'may sue and be sued, contract and be contracted with.' Such provision is insufficient to remove the Authority from the jurisdiction of the Court of Claims. The sweeping language of the Court of Claims Act provides jurisdiction 'over claims and demands against the State or any of its departments, commissions, boards, institutions, arms or agencies, shall be exclusive.' (Emphasis supplied.)
Appellants assert that they should have been granted discovery of the books and records of the State Fair Authority in order to establish that it was engaged in a proprietary function. Since the circuit court has no jurisdiction over any claim, proprietary or otherwise, against the Authority or the State of Michigan, the question as to proprietary function was immaterial. Discovery was properly denied.
Summary judgments for the City of Detroit and Police Commissioner Hart were granted upon a showing that the police officers were acting in a governmental capacity, that Commissioner Hart had no knowledge of the alleged acts of the police and that the acts were not done under his direction. Upon these issues appellants were given ample opportunity for discovery. Commissioner Hart was deposed at length, as was also Robert A. Lothian, second deputy commissioner of the Detroit police department who had charge of the business administration of that department. Their testimony, together with their affidavits and those of police officer Paul Gitschlag and Fred W. Lyons, second deputy commissioner previously in charge of the business administration of the police department, was to the effect that the City of Detroit never received any money for activities of the city police at the State Fair; that the police were at the Fair in pursuance of regular police activities; and that Hart had no specific knowledge of the presence of Detroit police at the Fair and gave no directives with regard to their activities there.
Plaintiffs' declarations, when tested by the motions for summary judgment, were not supported by any affidavits, depositions, or other evidence which would raise a genuine issue as to the material facts asserted by the City of Detroit and Commissioner Hart. GCR 117. Durant v. Stahlin, 375 Mich. 628, 135 N.W.2d 392.
First, as to Commissioner Hart, upon such uncontroverted facts, he is not liable for the acts of his subordinates.
'Generally a government officer is not vicariously responsible for the acts of his subordinates any more than a foreman or factory superintendent would be, though there is an exception--now possibly losing ground--in the case of sheriffs, marshals and constables who are liable for the acts of their deputies.'--2 Harper and James, Torts, § 29.8, pp. 1633, 1634.
In Michigan, the exception is represented by Bostatter v. Hinchman, 243 Mich. 589, 220 N.W. 775. In that case, a sheriff appointed Hinchman a special deputy to serve 'during my [the sheriff's] pleasure.' While the sheriff was away, his undersheriff called Hinchman to investigate an incident. While doing so, Hinchman shot plaintiff's decedent. The sheriff was held liable for the reckless killing of an innocent person by his personally appointed deputy.
In Smith v. Olander, 251 Mich. 503, 232 N.W. 364, defendant was the State Commissioner of Public Safety. One of defendant's troopers had legally arrested plaintiff and then, without excuse, assaulted him. This Court stated:
'There being no showing that the trooper in his wrongdoing was acting under the direction of the commissioner or with his knowledge, therefore it must be assumed that the trooper acted contrary to the lawful commands of the commissioner, and we must hold that liability for the wrong done is limited to the wrongdoer.' (Emphasis supplied.)
The reason for the distinction between police commissioners and sheriffs was explained in Pavish v. Meyers, 129 Wash. 605, 225 P. 633, 635, 34 A.L.R. 561:
'This court has held that a sheriff is liable for the misconduct of his deputies. * * *
'But the courts have very generally drawn a distinction between a sheriff and a chief of police, holding that the deputies of the former are selected by the sheriff and act purely as his representatives, but that police officers are generally not selected exclusively by the chief of police, and are themselves officers and do not act for the chief of police in the performance of their official duties.'
As for the City of Detroit, its police activity was in the exercise of a governmental function. Under Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1, governmental immunity exists as to any such acts of a city prior to September 22, 1961. See, also, Wardlow v. City of Detroit, 364 Mich. 291, 111 N.W.2d 44, and Sherbutte v. City of Marine City, 374 Mich. 48, 130 N.W.2d 920.
The trial judge correctly refused to retain the City of Detroit as a defendant under the Michigan indemnification statute (P.A.1951, No. 59 [C.L.S.1961, § 124.101 et seq. (Stat.Ann.1958 Rev. § 5.3376 et seq.)]). 3 The act is permissive, containing the word 'may' which distinguishes it from the Illinois indemnity statute (Ill.Ann.Stat., Ch. 24, §§ 1-4-5, 1-4-6) which provides that a municipality 'shall' indemnify policemen. The single permissive word 'may' is controlling. A city may or may not indemnify policemen under the Michigan indemnification statute but it may not be made a party on the basis of that statute which specifically provides, section 2:
'* * * such political subdivision shall not be made a party to any such action * * *.'
As a result of the decisions in Williams and Sherbutte, supra, a city can be held liable for torts by its agents committed after September 22, 1961, on the theory of respondeat superior.
Plaintiffs, in their amended declarations, alleged that defendants were liable under U.S.C.A., Title 42, §§ 1983, 1985, of the Federal Civil Rights Act. Section 1983 gives a cause of action to any person who, under color of State law, is made to suffer a deprivation of any right, privilege, or immunity secured by the Constitution and law of the United States. It has been interpreted as covering any right protected through the 14th Amendment. Monroe v. Pape, 365 U.S. 167, 171, 180, 81 S.Ct. 473, 5 L.Ed.2d 492). Egan v. City of Aurora, 365 U.S. 514, 515, 81 S.Ct. 684, 5 L.Ed.2d 741. Section 1985 gives a cause of action to any person who has been the victim of a conspiracy by two or more persons to deprive him of equal protection or equal privileges and immunities under the law.
Assuming, without deciding, our jurisdiction over plaintiffs' claims under the Federal Civil Rights...
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