Mead v. State

• Decision Date: 21 October 1942
• Docket Number: No. 78.,78.
• Citation: 303 Mich. 168,5 N.W.2d 740
• Parties: MEAD v. STATE et al.
• Court: Michigan Supreme Court

303 Mich. 168

5 N.W.2d 740

MEAD

v.STATE et al. ^*

No. 78.

Supreme Court of Michigan.

Oct. 21, 1942.

Action by Chloa Mead, administratrix of the estate of Roy Mead, deceased, against the State of Michigan, the Michigan Public Service Commission, and another to recover damages for the death of plaintiff's intestate. From an order vacating an order granting named defendants' motion to dismiss the action as to them and reinstating the petition, named defendants appeal.

Cause remanded with instructions.

Appeal from Court of Claims; Herman Dehnke, Circuit Judge, Presiding.

Before the Entire Bench, except WIEST, J.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., and Meredith H. Doyle and Daniel J. O'Hara, Asst. Attys. Gen., for appellants.

J. Donald Murphy, of White Cloud, and William J. Branstrom, of Fremont, for appellee.

Clarence E. Page, of Detroit, amicus curiae.

BUTZEL, Justice.

Chloa Mead, administratrix of the estate of Roy Mead, deceased, brought suit in the court of claims of the State of Michigan against the State and the Michigan Public Service Commission. She dismissed the suit as to Edward F. Hurst, an employee of the Michigan Public Service Commission, whom she had first included as a defendant. Hurst pleaded guilty to a charge of negligence homicide. For the purposes of this suit, on motion to dismiss, we assume that Hurst was guilty of negligence while driving a car belonging to defendants and while engaged in his official duties.

The act creating the court of claims, Act No. 135, Pub.Acts 1939, Stat.Ann.Cum.Supp. §§ 27.3548(1), et seq., while providing a forum in which all claims and demands, liquidated and unliquidated, ex contractu and ex delicto against the State or any of its departments, commissions, boards, institutions, arms or agencies, may be heard and determined, distinctly provides in section 24: ‘This act shall in no manner be construed as enlarging the present liabilities of the state and any of its departments, commissions, boards, institutions, arms or agencies.’ The Michigan Public Service Commission is an unincorporated commission or agency of the State, created by Act No. 3, Pub.Acts 1939, Stat.Ann.Cum.Supp. §§ 22.13(1) et seq.

The trial judge in the court of claims first granted defendants' motion to dismiss on the ground that the Michigan Public Service Commission was a governmental agency, and that the defense of governmental function, raised by the motion to dismiss, was available to it and relieved it of liability at the common law. This defense continues to exist in the absence of any statute to the contrary. Subsequently, on a hearing of said motion, and after the decision in Miller v. Manistee County Board of Road Commissioners, 297 Mich. 487, 298 N.W. 105, 136 A.L.R. 575, the judge vacated his former order on a petition to set aside the dismissal. In his opinion he still expresses a very slight doubt whether, in the light of Miller v. Manistee County Board of Road Commissioners, supra, a liability existed. He vacated his former order and reinstated the petition. We allowed an appeal.

Decision in the Miller case involved certain statutory provisions contained in the Michigan Motor Vehicle Law, 1 Comp.Laws 1929, § 4632 et seq., Stat.Ann. § 9.1431, et seq., and also provisions in the Uniform Motor Vehicle Act, 1 Comp.Laws 1929, § 4693, Stat.Ann. § 9.1561; and to some extent a construction of such statutory provisions. Very careful research and deliberation has resulted in the conclusion that we overstressed a portion of the statute and failed to sufficiently observe and preserve the attribute of sovereign immunity.

It is obvious that the State, either directly or through its agencies, may be and is the owner or motor vehicles. As to such ownership, there is nothing in the statute to the contrary. See 1 Comp.Laws 1929, § 4632, Stat.Ann. § 9.1561. Notwithstanding the statute, 1 Comp.Laws 1929, § 4648, Stat.Ann. § 9.1446, provides: ‘The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle * * *,’ it would be contrary to the great weight of the authority to hold that by enacting this provision of the statute the legislature intended to deprive the State of immunity from liability incident to the negligent use of its automobiles; and in that respect place the State on a par with private or corporate owners. The act is not couched in terms sufficiently clear and specific to make it applicable to State ownership of motor vehicles, and thereby indirectly deprive the State of immunity from liability incident to the negligent use of its motor vehicle. We so held in Wrighton v. City of Highland Park, 236 Mich. 279, 210 N.W. 250. See also City of Wyandotte v. State Board, 278 Mich. 47, 270 N.W. 211. To hold that the Michigan Motor Vehicle Law deprives the sovereign State of immunity in the respect noted would be to construe the act as including an important provision of which there is no hint in the title of the act. That would render the act in that particular unconstitutional. Instead...