Knight v. City of Tecumseh, Docket No. 20150

• Court: Court of Appeal of Michigan (US)
• Citation: 63 Mich.App. 215,234 N.W.2d 457
• Docket Number: Docket No. 20150
• Parties: Linda KNIGHT and Gregg Knight, Plaintiffs-Appellants, v. CITY OF TECUMSEH, a Municipal Corporation (Herrick Memorial Hospital), et al., Defendants-Appellees.
• Decision Date: 12 August 1975

Page 457

234 N.W.2d 457

63 Mich.App. 215

Linda KNIGHT and Gregg Knight, Plaintiffs-Appellants, v. CITY OF TECUMSEH, a Municipal Corporation (Herrick Memorial

Hospital), et al., Defendants-Appellees.

Docket No. 20150.

Court of Appeals of Michigan.

Aug. 12, 1975.

Released for Publication Nov. 4, 1975.

Sommers, Schwartz, Silver, Schwartz, Tyler & Gordon by Stanley S. Schwartz, Detroit, for plaintiffs-appellants.

Best, Arnold, Gleeson & Best by Felix F. Best, Jackson, for City and Herrick.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by J. P. O'Leary, Detroit, for Beuttgen.

DeVine & DeVine by Allyn D. Kantor, Ann Arbor, for Geringer.

Before ALLEN, P.J., and BRONSON and KAUFMAN, JJ.

ALLEN, Presiding Judge.

Plaintiffs appeal from a decision of the lower court granting defendant city's motion for accelerated judgment dismissing plaintiffs' malpractice suit against a municipally-owned hospital. Plaintiffs' complaint, filed August 21, 1972, alleged that on January 3, 1972, Linda Knight, wife of plaintiff Gregg Knight, entered Herrick Memorial Hospital for treatment known as Fleet's Enema, which was subsequently performed by defendant's agents in such a negligent manner as to cause severe injuries. The complaint further alleged that the city of Tecumseh owned and operated Herrick Memorial Hospital which furnished 'care and treatment for a consideration'. Defendant city entered its appearance specially together with a motion for an accelerated judgment based upon governmental immunity in accordance with M.C.L.A. § 691.1407; M.S.A. § 3.996(107). Subsequently, the complaint was twice amended, first to add the nurse and then the doctor as defendants, but with no change being made in the pleadings as originally filed against the city of Tecumseh.

After long delay, caused primarily by difficulties in completing the interrogatories and depositions of the added defendants, a hearing was held on the motion for accelerated judgment February 4. This hearing was not transcribed. February 21, 1973, the trial court filed its opinion which, after noting that counsel did not know whether the hospital made a profit, ¹ concluded as follows:

'While Section 13 (1964 P.A. 170) deals with 'state' immunity and perhaps not with municipal corporations' immunity, it does define proprietary function. Under that definition operating a hospital is not a proprietary function unless it is done primarily for the purpose of producing a profit. There is nothing in any of the plaintiffs' three filed complaints alleging Tecumseh operates the hospital to produce a profit let alone primarily for that purpose. Martinson v. City of Alpena was reinstated as the law in Michigan by the passage of this statute. The Supreme Court said this could be done. The legislature did it. Trial courts should not overrule both the Supreme Court and the legislature! The motion is granted.'

Initially, plaintiffs charge error on the grounds that the trial court granted the motion on a presumption unsupported by the facts in the record--to wit, that the city operates the hospital as a governmental function. In this connection, reference is made to the statement of the trial court appearing in footnote 1 of this opinion. Respectfully, we do not agree. Plaintiff did not plead the hospital enterprise was 'proprietary' (in which event immunity would not apply) but only pled treatment was rendered 'for a consideration'. This is an insufficient fact upon which to conclude the hospital business was undertaken for profit. A similar claim was made and rejected in the recent case, Lockaby v. Wayne County, 63 Mich.App. 185, 234 N.W.2d 444 (1975). In that case, plaintiff sued to recover for injuries he claimed he had suffered while in the custody of the sheriff's department and during transportation to and treatment at the Detroit General Hospital. There, as here, the trial court granted the several corporate defendants' motions for accelerated judgment predicated upon the defense of governmental immunity. There, as here, plaintiff claimed error because the hospital made charges for the services rendered. This claim was rejected, the Court saying:

'Plaintiff maintains that his cause of action against defendant Detroit General Hospital is not barred by the doctrine of governmental immunity because the hospital is engaged in a proprietary function in that charges are made for the services it renders. This argument was considered and rejected in Snow v. Freeman, 55 Mich.App. 84, 222 N.W.2d 43 (1974), wherein it was held that a municipally owned hospital was engaged in a governmental function despite the fact that medical services were provided for a fee.' 63 Mich.App. at 190, 234 N.W.2d at 444.

Plaintiff relies upon Lisiecki v. Detroit-Wayne Joint Building Authority, 364 Mich. 565, 111 N.W.2d 803 (1961), where the Supreme Court remanded the suit to the trial court to take proofs on whether a county building which leased space to a restaurant, cigar store and print shop was operating in a governmental or proprietary capacity. The case is distinguishable because it involved a building authority which, unlike hospitals, has not been traditionally considered a governmental function. Snow approvingly quoted the trial court as follows:

"Further, a review of the decisions on the question of 'governmental function' of a public hospital, the court has found that such hospital did, indeed, perform a governmental function. Harrison v. City of Pontiac, 285 F.2d 305 (C.A.6, 1961); Martinson v. City of Alpena, 328 Mich. 595, 44 N.W.2d 148 (1950); McCann v. State of Michigan, 47 Mich.App. 326, 209 N.W.2d 456 (1973)." 55 Mich.App. at 89, 222 N.W.2d at 46--47.

Furthermore, plaintiff in Lisiecki pled that the enterprise was a proprietary function. 364 Mich. at 568, 111 N.W.2d at 805.

Plaintiffs argue that this Court should adopt the rationale of Judge Feikens in Lykins v. Peoples Community Hospital, 355 F.Supp. 52 (E.D.Mich.1973), and of the courts of several states, holding that the day-to-day operations of a hospital are proprietary rather than governmental. ² 'This court does not believe the statutory scheme contemplates immunity for the day-to-day operations of a hospital. The statute speaks of immunity for 'governmental functions,' and this court is of the opinion that while it may be an appropriate goal or objective of government to establish a hospital authority, it does not follow that the daily operations of such a hospital authority constitute a governmental function. Governmental functions more properly refer to the tasks of governing. There is, for example, a governmental character to activities such as the collection of taxes or...