Longstreet v. Mecosta Cnty., s. 50-52.

• Decision Date: 06 October 1924
• Docket Number: Nos. 50-52.,s. 50-52.
• Citation: 228 Mich. 542,200 N.W. 248
• Parties: LONGSTREET v. MECOSTA COUNTY et al. (three cases).
• Court: Michigan Supreme Court

228 Mich. 542

200 N.W. 248

LONGSTREET

v.MECOSTA COUNTY et al. (three cases).

Nos. 50-52.

Supreme Court of Michigan.

Oct. 6, 1924.

Cases-Made from Circuit Court, Mecosta County; Joseph Barton, Judge.

Actions by Arley Longstreet, individually and as administratrix of the estates of John and Walter Wayne Longstreet, against the County of Mecosta and others. Cases-made after judgments of dismissal. Affirmed in part, and reversed in part.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. C. W. & W. S. Foster, of Lansing (Wm. S. Cameron, of Lansing, of counsel), for plaintiffs.

Andrew B. Dougherty, Atty. Gen., and Victor Spike, Asst. Atty. Gen., for defendant Rogers.

Alpheus A. Worcester, of Big Rapids, for defendant Mecosta County.

Arthur J. Butler, of Big Rapids, for defendant board of county road commissioners.

John E. Dumon, of Big Rapids, for defendants Young, Manahan, and Laflin.

FELLOWS, J.

These three cases involve one accident, therefore one state of facts, and are controlled by the same legal principles. They were submitted together and will be disposed of in one opinion. A state-rewarded trunk line highway, known as the ‘Mackinaw Trail,’ runs through the county of Mecosta. Between Big Rapids and Paris Dalziel creek crosses this highway. In 1923 the bridge across this stream washed out, and on June 1st a new bridge was being constructed. On the night of that day John Longstreet, accompanied by his wife, Arley, and his son, Walter Wayne, were driving on this highway. It is alleged that there were no barriers to warn the public, and particularly no red light, as required by Act 165, Public Acts 1917. Shortly after midnight the party reached Dalziel creek, and, although exercising due care, the automobile in which they were riding was precipitated into the creek; Mr. Longstreet being instantly killed, Mrs. Longstreet being seriously injured, and the son so seriously injured that he died in a few days. The actions are brought against the state highway commissioner, the county of Mecosta, the board of county road commissioners of that county, and the individual members of the board. The declarations count in the first count on a joint liability, and in other counts on liability of the defendants, separately, and there is no question raised that the cause of action, if one exists, is not properly pleaded. Defendants moved to dismiss, on the ground that none of them are liable under the law. The trial judge dismissed all the suits.

1. We shall first consider whether the individual members of the board of county road commissioners and the board are liable. There is no allegation of willful negligence on the part of the members of the board, nor is the action for trespass by them upon property of an individual, nor for acts committed in excess of their authority. They are public officials owing a duty to the public, generally, as contradistinguished from a duty to the individual members of the public. In 2 Cooley on Torts (3d Ed.) 756, the rule is thus announced:

‘The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual, injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.’

In McConnell v. Dewey, 5 Neb. 385, it was held (quoting from the syllabus):

‘The duties of a supervisor of public roads are of a general public nature, and he acts for the public at large, and therefore an action, at the common law, will not lie against him by an individual for an injury occasioned to his person or property, by reason of a defect in a public road or bridge.’

In Robertson v. Monroe, 79 N. H. 336, 109 Atl. 495, it was said by Chief Justice Parsons, speaking for the court:

‘It is, however, generally, though not universally, held that at common law the officers upon whom is imposed the performance of the duty of highway maintenance are not answerable to individuals for default in such performance. * * * As the same duty when imposed upon public officers remains governmental in its nature, owed to the public and not to individuals, it would seem to plainly follow that the officers upon whom the duty of maintenance was imposed would not be liable to an individual for default in the performance of their public duty.’

The Supreme Court of Idaho, in the case of Youmans v. Thornton, 31 Idaho, 10, 168 Pac. 1141, following the earlier holding in Worden v. Witt, 4 Idaho, 404, 39 Pac. 1114,95 Am. St. Rep. 70, held (we quote the syllabus):

‘1. The duties of county commissioners and road overseers are prescribed by statute, and are governmental functions.

‘2. These officers are responsible to the state and county for the performance of their official duties, but beyond this their liability cannot be extended.

‘3. County commissioners and road overseers are not individually liable in damages for injuries sustained by reason of defective highways or bridges.’

In Templeton v. Beard, 159 N. C. 63, 74 S. E. 735, it was held that an action could not be maintained against the individual members of the county commissioners for negligence in the construction of a bridge, unless they acted or failed to act ‘corruptly or of malice,’ and White v. Commissioners, 90 N. C. 437, 47 Am. Rep. 534, was relied upon. See, also, Nagle v. Wakey, 161 Ill. 387, 43 N. E. 1079;Hardwick v. Franklin, 120 Ky. 78, 85 S. W. 709;Lynn v. Adams, 2 Ind. 143;Moss v. Cummings, 44 Mich. 359, 6 N. W. 843; 29 C. J. 675. Contra, Mott v. Hull, 51 Okl. 602, 152 Pac. 92, L. R. A. 1916B, 1184.

It must be held that the declarations set forth no cause of action against the individual defendants, and that the cases were properly dismissed as to them. We shall presently show that the construction and maintenance of highways is the discharge of a governmental function, and that, in the absence of statute, an action may not be maintained for the negligent discharge of that function. The board of county board commissioners were in the discharge of such governmental function, and we are not persuaded that any statute of this state has waived the immunity from liability which surrounds and protects it. As far back as 1857 it was held by this court, in Commissioners of Highways v. Martin, 4 Mich. 557, 69 Am. Dec. 333 (we quote the syllabus):

‘Towns are not liable, either at common law or by statute, to actions for damages sustained by individuals, in consequence of the nonrepair of bridges and highways. Nor can they, under chapter 119 of the Revised Statutes, be subjected to any liability for such nonrepair, through the means of an action against the commissioners of highways.’

The cases were properly dismissed as to the board of county road commissioners.

2. We shall next consider the liability of defendant Frank F. Rogers. So far as his personal liability is concerned, what has been said as to defendants Young, Manahan, and Laflin is applicable, and there is no personal liability on his part. The fourth count in all the declarations alleges that he is state highway commissioner, and it is in such capacity he is sued. That the courts will look through and beyond the nominal parties to determine the real parties in interest, that where a state officer is sued in relation to official acts it is a suit against the state, and that the state may not be sued without its consent, are all propositions settled by McDowell v. Warden of Reformatory, 169 Mich. 332, 135 N. W. 265, and we could well forego consideration of the character of the duties of the state highway commissioner, if his liability was the only question in the case. Decision, so far as liability of this state officer, could be well rested on the McDowell Case. But it is insisted by the other defendants that his duties, and particularly those prescribed by Act 19, Public Acts 1919, as amended, go beyond supervision, administration, and discretionary control.

That the public highways of the state measure thousands of miles is a fact of which this court will take judicial notice. That, in legislative judgment, supervision and administration of their improvement should be largely vested in the state as the most efficient method to accomplish results, is fairly apparent from the legislation dealing with the subject. A state highway department was created (sections 4378 et seq., C. L. 1915), and numerous duties were placed on the state highway commissioner, and various powers conferred at substantially every session of the Legislature. We shall consider, in detail, the Act of 1919, but cannot, within the compass of this opinion, detail all the powers and duties of the state highway commissioner. Some will be noted: He is authorized to collect information from overseers of highways and city superintendents or commissioners of streets (section 4381, C. L. 1915); he is to furnish outline plans and specifications for the improvement of public wagon roads (section 4383, C. L. 1915); he passes on the plans for state reward highways, gives information and advice as to construction, inspects them when the work is completed, and draws the warrant for the award (section 4386, C. L. 1915, as amended by Act 184, Public Acts 1923), and there must be filed for his approval a map of the county showing the system of county roads (section 18, c. 4, Act 367, Public Acts 1921); he approves the system for patrol and maintenance of the roads and may withhold rewards (section 12, c. 5, Act 116, Public Acts 1919); he is required to perform numerous duties under the Covert Act, so called (Act 59, Public Acts 1915 [sections 4671 et seq., C. L. 1915]), which, however, may be performed by...