McCann v. State Dept. of Mental Health, Docket No. 13913

• Citation: 47 Mich.App. 326,209 N.W.2d 456
• Decision Date: 23 May 1973
• Docket Number: Docket No. 13913,No. 2,2
• Parties: John F. McCANN, Individually and d/b/a the Weekender, Plaintiff-Appellant, v. STATE of Michigan, DEPARTMENT OF MENTAL HEALTH, and Traverse City State Hospital, Defendants-Appellees
• Court: Court of Appeal of Michigan (US)

Page 456

209 N.W.2d 456

47 Mich.App. 326

John F. McCANN, Individually and d/b/a the Weekender, Plaintiff-Appellant, v. STATE of Michigan, DEPARTMENT OF MENTAL HEALTH, and Traverse

City State Hospital, Defendants-Appellees.

Docket No. 13913.

Court of Appeals of Michigan, Division No. 2.

May 23, 1973.

Released for Publication Aug. 2, 1973.

Leave to Appeal Granted Aug. 24, 1973.

Albert L. Holtz, Perlman, Garber & Holtz, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Arthur D'Hondt, Asst. Atty. Gen., for defendants-appellees.

Before DANHOF, P.J., and HOLBROOK and BASHARA, JJ.

DANHOF, Presiding Judge.

Plaintiff appeals from a grant of summary judgment by the Court of Claims dismissing plaintiff's complaint with prejudice as failing to state a claim upon which relief can be granted. GCR 1963, 117.2(1). We affirm.

Plaintiff commenced this action on August 17, 1971 stating in his complaint that he had been the owner and publisher of a newspaper in Traverse City, and that on September 3, 1970 the plaintiff's newspaper commenced publication of a series of articles concerning the death of one John D. Cronk, a former mental patient at Traverse City State Hospital. The complaint further alleged that the article sought to raise the question of whether John D. Cronk expired from natural causes, criminal activity, negligence or gross negligence on the part of certain hospital personnel.

Plaintiff contends that as a result of the publication of the aforementioned articles, certain employees of the state hospital embarked on a campaign to destroy plaintiff's business enterprise. Plaintiff claims that the medical superintendent of the hospital, administrative officer of the hospital, community relations director of the hospital, and director of nursing, as well as numerous lesser employees, 'willfully, wantonly, and maliciously, by persuasion, economic and social pressure, threats and innuendos directed at claimant's customers, advertisers, and claimant himself, did attempt to cause the demise and destruction' of his newspaper. These said employees did this by contacting various advertisers and customers by telephone and letter attempting to convince them to withdraw their support of plaintiff's newspaper.

Plaintiff alleges that as a result of the above-stated activities by state hospital employees, he lost most of his advertising customers. This ultimately led to the insolvency of his business accompanied by mental suffering and anxiety. On April 16, 1971, plaintiff instituted an action in the United States District Court against the above referred to state employees in their individual capacity, the substance of this action being identical to that which was subsequently filed in the Michigan Court of Claims.

In its opinion dated February 17, 1972, the Court of Claims states:

'But one may look in vain for any affirmative legislation that manifests an intent on the part of the State of Michigan that it must respond in damages for intentional tortious acts or conduct on the part of employees of State agencies whereby they interfere with or even destroy an established business for profit enterprise or libel or slander the owners and operators hereof.

'The Michigan Court of Claims is a court of limited jurisdiction and the State of Michigan having clearly retained its defense of sovereign immunity in this particular action asserted against it by the plaintiff this Court is simply without any power to afford plaintiff any relief by way of damages on the claim or claims asserted.'

A brief review of the complicated judicial and, most importantly, legislative history of governmental immunity in Michigan will be useful. By 1943 P.A. 237, the state waived its defense of immunity from liability for the torts of its officers and employees. This broad waiver was shortlived, however, for by 1945 P.A. 87 governmental immunity was restored as a defense, except as to causes of action based on the negligent operation of motor vehicles. By 1960 P.A. 33, this exception to immunity was broadened to include the negligent operation of aircraft other than military aircraft. Then came the case of Williams v. Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961). Today it is clear that the Williams decision achieved but one result and must be interpreted therefore in the light of the separate opinion of Justice Black who was the 'swing vote.' For all of the sweeping language in the opinion by Justice Edwards which seemed to shake the doctrine of governmental immunity to its very foundations, the result of Williams was to overrule prospectively the Judicial doctrine of governmental immunity as it applied to Municipal corporations. Any doubts as to the effect of Williams on the immunity of the state and its agencies was erased in McDowell v. State Highway Commissioner, 365 Mich. 268, 112 N.W.2d 491 (1961). The defense as it applied to the state had become a creature of the Legislature and would not be overruled by the judiciary.

By 1964 P.A. 170, the Legislature passed 'An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in a governmental function, for injuries to property and persons caused by negligence'. The act as passed was obviously designed to effect the following results: (1) To restore the defense of governmental immunity to municipal corporations and lesser political subdivisions, which defense had been abrogated by Williams, and to make it uniform with the state's immunity; (2) To adopt and statutorily define the judicially fashioned proprietary-function exception to governmental immunity; (3) To carve out as the only legislative exceptions to immunity actions based on negligent operation of motor vehicles, or defective maintenance of roads and public buildings. Green v. Department of Corrections, 30 Mich.App. 648, 186 N.W.2d 792 (1971), aff'd 386 Mich. 459, 192 N.W.2d 491 (1971).

The constitutionality of § 7, 1964 P.A. 170, being M.C.L.A. § 691.1407; M.S.A. § 3.996(107), which dealt with governmental immunity from tort liability, came under judicial scrutiny in Maki v. City of East Tawas, 18 Mich.App. 109, 170 N.W.2d 530 (1969). In ruling this section unconstitutional, this court in an opinion by this writer held:

'We think that the constitutionality of § 7 cannot be sustained if it is construed as applying to all tort liability when the title is limited to negligence. We agree with the point made in the brief on behalf of the intervenor that legislators might have been misled by the title into voting affirmatively, thinking that immunity from liability for negligence desirable, yet not wishing to go so far as to grant immunity from assault and battery, false arrest, invasion of privacy, direct trespass, nuisance, and other torts.' Maki v. City of East Tawas, 18 Mich.App. 109, 123, 170 N.W.2d 530, 536 (1969), aff'd 385 Mich. 151, 188 N.W.2d 593 (1971).

The effect of the Maki decision was to temporarily leave the state without immunity from tort liability, since immunity had become a creature of the Legislature and since a key section of the most recent statute had been declared void.

The Legislature acted quickly to cure this defect. By 1970 P.A. 155, the Legislature amended the title and several sections of the act. The effective date of the amendment was August 1, 1970--more than one month prior to the date on which plaintiff's cause of action allegedly arose. In the title, the words 'the exercise or discharge of' were added between the words 'engaged in' and 'a governmental function'. The words 'caused by negligence' were deleted:

'An Act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function, for injuries to property and persons;'

Section 7 was reenacted with the only change being the substitution of the word 'the' in lieu of the word 'said' following the word 'wherein' in the first sentence:

'Except as in...