Minty v. State

• Decision Date: 01 October 1952
• Docket Number: No. 78,78
• Citation: 336 Mich. 370,58 N.W.2d 106
• Parties: MINITY v. STATE et al. ,
• Court: Michigan Supreme Court

Page 106

58 N.W.2d 106

336 Mich. 370

MINITY v. STATE et al.

No. 78, October Term, 1952.

Supreme Court of Michigan.

April 13, 1953.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Daniel J. O'Hara, Merodith H. Doyle, Asst. Attys. Gen., for defendants-appellants.

Goembel, White & Locke, Kalamazoo, for plaintiff-appellee.

Before the Entire Bench.

BOYLES, Justice.

I do not concur in reversal. The order of the court of claims denying defendants-appellants' motion to dismiss should be affirmed and the case remanded for hearing on the merits. Hereinafter appellants will be referred to as the State.

The precise question raised here on this appeal, and the only ground advanced here by the State for reversal, is stated by its counsel as follows:

'Where plaintiff sustained personal injuries for which the State of Michigan would then be liable by virtue of section 24 of the court claims act as amended in 1943 expressly waiving sovereign immunity from liability for any tort committed by a State employee in performance of a governmental function, and where subsequently, but before plaintiff's cause of action had been reduced to judgment in the court of claims, section 24 was expressly repealed by legislative enactment, did plaintiff, by virtue of an event which occurred while section 24 was still in full force and effect, acquire a vested right enforceable in the court of claims?'

Said question (as above quoted) apparently was intended to cover the State's motion to dismiss filed and heard in the court of claims and denied, which was as follows:

'Now come defendants State of Michigan and Board of State Auditors by Eugene F. Black, attorney general, and move that the petition herein be dismissed for the reason that said petition fails to state facts sufficient to constitute a valid cause of action against said defendants, or either of them, in that said defendants, at the time and place of the grievances and matters set forth in said petition, were engaged in the performance of a governmental function and having been so engaged, are not liable for the negligent or tortious acts of their officers, agents or employees.'

As indicated by the Chief Justice, the motion was apparently intended to refer to plaintiff's claim that the State is liable for negligent or tortious acts of its officers, agents or employees which occurred during the period of time while section 24, P.A.1943, No. 237, called the waiver of immunity act, was in effect and prior to its repeal by P.A.1945, No. 87. The event which gave rise to plaintiff's cause of action occurred during that period of time. Said section 24, P.A.1943, No. 237, then in effect, provided that:

'Upon the happening of any event subsequent to November 1, 1943, which gives rise to a cause of action, the state hereby waives its immunity from liability for the torts of its officers and employees and consents to have its liability for such torts determined in accordance with the same rules of law as apply to an action in the circuit court against an individual or a corporation, and the state hereby assumes liability for such acts, and jurisdiction is hereby conferred upon the court of claims to hear and determine all claims against the state to recover damages for injuries to property or for personal injury caused by the misfeasance or negligence of the officers or employees of the state while acting as such officer or employee.' (Emphasis supplied.)

This was not merely a consent by the State to be sued, or a waiver of immunity from the right to sue the State. It was a waiver of immunity from liability, and an express assumption of liability by the State. No plainer language to accomplish that result could have been written--'and the State hereby assumes liability for such acts.' Furthermore, there was no need for the State to amend the court of claims act ¹ by adding any waiver of immunity from being sued, in order to give its consent to be sued. That had been granted by section 8 of the court of claims act when it was passed in 1939. This Court so held in Manion v. State Highway Commissioner, 303 Mich. 1, 5 N.W.2d 527, 528, decided in 1942, after the enactment of the court of claims act, but before the 1943 waiver of immunity from liability. In that case we held that the State had waived its immunity from being sued, but not its immunity for liability, and that the defense of governmental immunity from liability might still be raised in such suit. Speaking through Justice Bushnell, the Court said:

'There is a distinction between sovereign immunity from suit and sovereign immunity from liability. The latter exists when the sovereign is engaged in a governmental function. The former may be waived without a waiver of the latter. Section 24 of the Court of Claims Act, Act No. 135, Pub.Acts 1939 [Comp.Laws Supp.1940, § 13862-1 et seq.], Stat.Ann. [1940 Cum.Supp.] § 27.3548 (1-24) reads: '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.'

'I construe this to mean that the State's immunity from liability while engaged in a governmental function is preserved because the waiver of this defense would enlarge the 'present liabilities of the state.'

* * *

* * *

'The State is not liable in this instance because of its sovereign immunity from liability in the performance of a governmental function and not because of its sovereign immunity from suit.'

To the same effect, see Mead v. Michigan Public Service Commission, 303 Mich. 168, 5 N.W.2d 740, also decided in 1942, under the court of claims act, before the waiver of immunity from liability in 1943. There the Court held (syllabus):

'While the act creating the court of claims provides 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, the act is not to be construed as enlarging the liabilities of the State or such agencies (Act No. 135, Pub.Acts 1939).'

In section 8 of the act, as enacted in 1939 and in effect at all times since, it is expressly stated that:

'The jurisdiction of the court of claims as conferred upon it by this act over claims and demands against the state or any of its departments, commissions, boards, institutions, arms or agencies, shall be exclusive * * *. The court shall have power and jurisdiction:

'1. To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms or agencies.

'2. * * *

'The judgment entered by the court of claims upon any such claim, either against or in favor of the state or any department, commission, board, institution, arm or agency thereof, upon becoming final shall be res adjudicata of such claim. * * * Writs of execution or garnishment may issue upon said judgment the same as from one of the circuit courts of this state. The judgment entered by the court of claims upon any such claim, either for or against the claimant, shall be final unless appealed from as herein provided.' Stat.Ann.1951 Cum.Supp. § 27.3548(8).

In Benson v. State Hospital Commission, 316 Mich. 66, at pages 71-72, 25 N.W.2d 112, 113, the Court said:

'There is no question but that the State, by enacting the court of claims act, thereby consented that the State, and its departments, commissions, boards, institutions, arms and agencies might be sued in the court of claims on claims and demands, liquidated and unliquidated, ex contractu and ex delicto. Section 8 of the act so provides, and the right has been recognized by this court in subsequent decisions. Manion v. State Highway Commissioner, 303 Mich. 1, 5 N.W.2d 527; Abbott v. Michigan State Industries, 303 Mich. 575, 6 N.W.2d 900; McNair v. State Highway Department, 305 Mich. 181, 9 N.W.2d 52; Hersey Gravel Co. v. State Highway Department, 305 Mich. 333, 9 N.W.2d 567 ; Detroit Club v. State of Michigan, 309 Mich. 721, 16 N.W.2d 136; W. H. Knapp Co. v. State Highway Department, 311 Mich. 186, 18 N.W.2d 421; Western Electric Co. v. [State] Department of Revenue, 312 Mich. 582, 20 N.W.2d 734.'

It would seem that the question whether section 24 of the 1943 act constituted a waiver by the State of immunity from liability, not limited merely to a consent to be sued, has been settled by our previous decisions. In Benson v. State Hospital Commission, supra, as in the case at bar, the court of claims had before it a motion to dismiss, filed by the State. That court granted the motion and dismissed the case. We reversed and remanded the case for further proceedings. The precise argument then advanced by the State was that section 24 of the 1943 act, waiving the State's immunity from liability, was not germane to the title of the act, hence void. For obvious reasons, a determination of that question necessarily involved a consideration as to what respect, if any, section 24 of the 1943 act amending the court of claims act was outside the scope of the title. The question as to the import of the amendment was necessarily involved in the case, in order to determine whether it was germane to the title. Was it a waiver of governmental immunity and an assumption of liability, or merely a consent by the State to be sued in the court of claims? I do not agree with the Chief Justice that the question in the Benson case was limited solely to whether section 24, P.A.1943, No. 237, waiving governmental immunity, was unconstitutional; and that all else was surplusage. In that case the Court further said:

'Plaintiff has planted his right to sue the State on Act No. 135, Pub.Acts 1939. By virtue of this act, the State has consented that it may be sued, in the court of claims. That court has jurisdiction of the instant suit. Conceding that the court of claims has...