Keenan v. Midland County

• Decision Date: 05 January 1966
• Docket Number: No. 60,60
• Citation: 138 N.W.2d 759,377 Mich. 57
• Parties: Francis KEENAN, Administrator of the Estate of Kimberly Keenan, Deceased, Plaintiff and Appellant, v. The COUNTY OF MIDLAND, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 759

138 N.W.2d 759

377 Mich. 57

Francis KEENAN, Administrator of the Estate of Kimberly Keenan, Deceased, Plaintiff and Appellant, v. The COUNTY OF MIDLAND, Defendant and Appellee.

No. 60.

Supreme Court of Michigan.

Jan. 5, 1966.

Cicinelli, Mossner, Majoros & Harrigan, Saginaw, Peter F. Cicinelli and Eugene D. Mossner, Saginaw, of counsel, for appellant.

Stanton, Taylor, McGraw & Collison, Saginaw, John Davidson, Saginaw, of counsel, for appellee.

Before the Entire Bench.

ADAMS, Justice.

This lawsuit results from the drowning of a 5-year old child. Death occurred in July, 1960, at a swimming beach in Midland county. For purposes of decision on motion for summary judgment, the beach was acknowledged to have been operated by the County of Midland. Defendant was granted a summary judgment, the trial court reasoning that, under prior decisions of this Court, the County of Midland was engaged in a governmental function. The court also reasoned that since the alleged tort occurred prior to decision of this Court in Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1, the rule of governmental immunity, if abrogated by that case, was nevertheless a bar to a claimed cause of action which arose prior to September 22, 1961.

On March 1, 1965, one day before oral argument in this case, in Myers v. Genesee County Auditor, 375 Mich. 1, 133 N.W.2d 190, this Court, with seven members sitting, by reversing and remanding for trial, decided by a clear majority of those participating to abrogate the rule of governmental immunity as to counties, thus overruling Lewis v. Genesee County, 370 Mich. 110, 121 N.W.2d 417, and also held that said abrogation was applicable to 'pending and future cases.'

Inasmuch as this case was pending at the time of decision in Myers, the application of the rule of governmental immunity is no longer valid. The case is remanded to the trial court for vacation of the order granting summary judgment as to defendant County of Midland and for such further proceedings as may be appropriate.

Myers abolished (until the effective date, July 1, 1965, of P.A.1964, No. 170) the defense of governmental immunity as to all political subdivisions of government not theretofore abolished. The State and its agencies, including school districts, remained immune from tort liability. McDowell v. State Highway Commissioner, 365 Mich. 268, 112 N.W.2d 491; Sayers v. School District No. 1, Fractional, 366 Mich. 217, 114 N.W.2d 191. The problem now, and as of July 1, 1965, is governed by the provisions of P.A.1964, No. 170 (C.L.1948, § 691.1401 et seq. [Stat.Ann.1964-1965 Current Material § 3.996(101) et seq.]). Our decision here does not affect the provisions of Article 7, § 6, of the Constitution of 1963.

No costs.

KAVANAGH, C. J., and SMITH and O'HARA, JJ., concurred with ADAMS, J.

SOURIS, Justice.

Once again, as in Myers v. Genesee County Auditor (1965), 375 Mich. 1, 12-13, 133 N.W.2d 190, I cast my vote to overrule Lewis v. Genesee County (1963), 370 Mich. 110, 121 N.W.2d 417. I join also in vacating the summary judgment entered in defendant's favor in this case of Keenan and in remanding the cause for trial.

While five of the seven participating Justices in Myers joined in our decision to reverse and remand the trial judge's decision in Myers, only four of us planted our decision upon abrogation of the rule of governmental immunity as applied to tort actions against counties, Mr. Justice Black having concurred only in the result of Mr. Justice O'Hara's opinion. The question becomes, then, whether the decision of the four Justices out of seven participating in Myers, to abrogate the rule of county immunity to tort actions, carries precedential weight for other like cases including the case at bar. There is apparent authority in Michigan that it does, that a decision of a majority of participating Justices, even when made by less than a majority of the full Court, shall be regarded thereafter as of precedential force under the doctrine of stare decisis. Dolph v. Norton (1909), 158 Mich. 417, 123 N.W. 13. While I acknowledge that the Dolph case can be read, as it appears to have been in Scott v. Sullivan (1911), 164 Mich. 467, 129 N.W. 864, in support of adding the weight of stare decisis to a decision of four out of seven participating Justices of an eight-member Court, I do not believe that such a reading survives careful analysis.

In Dolph v. Norton the question arose whether decision in that case was controlled by the Court's prior decision in Weller v. Wheelock (1908), 155 Mich. 698, 118 N.W. 609. The Weller case was first submitted to the Court on January 10, 1908. Before decision therein, Mr. Justice Carpenter resigned from the Court on September 15, 1908 and his replacement, Mr. Justice Brooke, was not elected until November, 1908. 154 Mich. iii. In the meantime, on October 8, 1908, Weller v. Wheelock was reargued to the Court, then consisting only of seven Justices. The Court's decision in Weller was announced on November 30, 1908. It was by a four-to-three division of the Court, a court which consisted only of seven judges at the time the case was reargued in October. In the following year, in Boughner v. Bay City (1909), 156 Mich. 193, 120 N.W. 597, doubt was cast by the Court upon the precedential weight to be given its earlier decision in Weller, the decision in that case having received the approval of less than five Justices. 156 Mich. 198-199, 120 N.W. 597.

Then, in Dolph v. Norton, seven of the eight Justices participating in Dolph signed an opinion conceding the weight of stare decisis to Weller v. Wheelock in the following language:

'* * * All of the justices, there being at the time but seven, participated in the decision of Weller v. Wheelock. I find no good ground for declaring that in such a case the decision of a majority shall not be received as stare decisis, as establishing the law, not only for the particular case, but for other like cases. There remains, of course, the right and the duty to overrule decisions found to be erroneous.' 158 Mich. 417, 422, 123 N.W. 13, 15.

This quoted statement followed a short discussion by the Court of its then current practice, sanctioned by statute (P.A.1903, No. 250), of sitting for the transaction of business in panels of five Justices and of calling for resubmission of cases to the full Court whenever the five Justices to whom the case originally was submitted were unable to agree, the stated practice resulting 'in expediting the business of the court and in securing, what is desirable, the concurring opinion of a majority of the judges.' 158 Mich. 417, 422, 123 N.W. 13, 15.

Thus, the majority's decision in Dolph v. Norton, insofar as here pertinent, stands for no more than this: When a decision is reached by a majority of the Justices of the Court, as the Court is constituted at the time the case is submitted for decision, that decision thereafter is to be considered of precedential weight as to the issues decided by such majority. Arguably, Dolph v. Norton could be read to mean that a decision made by a majority of participating Justices, whether a majority of the full Court or not, is of precedential weight by virtue of the doctrine of stare decisis, as appears to have been the reading of Dolph v. Norton by the Court in Scott v. Sullivan (1911), 164 Mich. 467, 129 N.W. 864. But, for the reasons stated, I do not believe such a reading survives careful analysis of the majority's opinion in Dolph v. Norton.

Furthermore, the objectives sought to be achieved by the doctrine of stare decisis--stability of law and its concomitant predictability--are far more certain of achievement when a majority of the full Court commits itself to a statement of law binding on all other courts in the state and subject to change thereafter only upon further action by a majority of the full Court, by the people themselves by constitutional amendment or, in some cases, by legislative action. On those relatively few occasions when less than a majority of the full Court agrees upon the rationale for decision, it seems desirable to me to leave any question of law not resolved by a majority of the Court open for our Court of Appeals and our trial courts to decide as a matter of first impression, the discussions of the issue in our divisive opinions providing, hopefully, intellectual stimulus to our bench and bar in the lower courts. Similarly, new trial and appellate court decisions on different but similar facts involving the same issue, when appealed to this Court, would provide our membership another opportunity for contemplation of the issue and, hopefully, for ultimate majority accord in its resolution. That process, it seems to me, conforms with our common law tradition whereby the body of judicial law is developed on a case by case basis and whereby no issue is resolved for the future until a court's majority reaches accord and only so long as that court's majority maintains that accord.

The foregoing views considered, I agree with Justice Black that while a majority of this eight-member Court joined to reach decisional accord in Myers v. Genesee County Auditor (1965), 375 Mich. 1, 133 N.W.2d 190, a majority of this Court, as distinguished from a majority of the participating Justices, did not agree upon a rationale for decision and, therefore, our decision in Myers cannot be regarded as of precedential force in this case of Keenan.

Nor am I able to agree that the Court now can give to Myers, ex post facto, that precedential force which it did not achieve when we announced our decision in Myers in March of 1965. The effect of our decision and opinions in this case of Keenan, as I understand them, is, therefore, that, while only a minority of the Justices would regard Lewis as having been overruled as of March of 1965, a majority (Kavanagh, C. J., and Souris, Smith, O'Hara and Adams, JJ.) agrees that Lewis is overruled at least as of our...