Munson v. Menominee County
| Decision Date | 04 November 1963 |
| Docket Number | No. 34,34 |
| Citation | 124 N.W.2d 246,371 Mich. 504 |
| Parties | Mildred MUNSON, Plaintiff and Appellant, v. The COUNTY OF MENOMINEE, a Body Politic and Corporate Defendant and Appellee. |
| Court | Michigan Supreme Court |
Doyle & Doyle, Menominee, for appellant.
Russell W. Bradley, Pros. Atty., Menominee County, Menominee, Emmet McCarthy, Marinette, Wis., of counsel, for appellee.
Before the Entire Bench, except O'HARA, J.
Plaintiff brought suit in circuit court to recover damages for injuries claimed to have been suffered by her as a result of negligence and otherwise wrongful conduct on the part of defendant. Each of the three counts in her declaration was dismissed on motion, and she has appealed claiming that the trial judge was in error insofar as dismissal of the 2nd and 3rd counts were concerned. Apparently it is conceded that the 1st count was properly stricken.
The 2nd count of plaintiff's pleading averred that on the 2nd day of June, 1959, she was an employee of the department of social welfare of the State of Michigan, assigned to the performance of duties of that department within the county of Menominee. It was alleged that the department by which she was employed was occupying office space in the Menominee county courthouse under an agreement pursuant to which the State paid a fixed consideration to the county. It was further alleged that it was the duty of the defendant as owner of the premises to maintain the said office, and particularly window shades therein, in a reasonably safe condition so that plaintiff in her capacity as an employee of the State could perform her duties without being subjected to unnecessary dangers. It was asserted that the county failed to perform said duty and that as a result a window shade in the office became out of repair so that, when the plaintiff undertook to adjust it, it sprang or fell from its brackets, striking her on the head and causing serious and permanent injuries to her.
Defendant's motion to dismiss count 2 was based on the theory that the operation of the courthouse involved the exercise of a governmental function, further asserting that defendant did not receive rent as consideration for supplying the office space but that payment were made to it by the State to cover expenses of operation and maintenance and also the cost of certain alterations amortized over a five year period, which presumably were required in order to prepare the office in question for its use by the agency of the State welfare department for which plaintiff was working. Testimony was taken with particular reference to the nature of the relation between the State welfare department and the county, the specific matter of inquiry being whether the county, in furnishing the office space to the State under the agreement above mentioned, was acting in a proprietary capacity or was engaged in the exercise of a governmental function. The circuit judge hearing the matter concluded that the payments made by the State were not in the nature of rent but amounted to the rendition of assistance to the county in the preparation and maintenance of the office facility. The 2nd count of the declaration was accordingly dismissed.
By amendment plaintiff added to her declaration a 3rd county charging that the window shade by the falling of which she had been injured had previously fallen, that defendant was charged with notice of the fact that it was defective, and that allowing it to continue in such a condition as to permit its falling in case of an attempt to adjust it constituted the maintenance of a nuisance. Motion to dismiss said county was granted on the ground that it, in effect, alleged negligence and was, therefore, a repetition of the 2nd count. On behalf of plaintiff it is claimed that the rulings as to the 2nd and 3rd counts were erroneous, and that the question whether the county was engaged in the exercise of a proprietary or of a governmental function should have been left for determination as an issue of fact on the trial of the case.
At the time of the making of the orders from which appeal has been taken Michigan Court Rule 18 as adopted in 1945 was in effect, said rule having reference to motions to dismiss. Section 3 thereof provided:
'If upon the hearing of such motion, the opposite party shall present affidavits or other proof denying the facts alleged or establishing facts obviating the objection, the court may take proof, and hear and determine the same and may grant or deny the motion; but if disputed questions of fact are involved the court may deny the motion without prejudice and shall so deny it if the action is one at law and the opposite party demands that the issue be submitted to a jury.'
It must be assumed that the trial judge directed the taking of testimony on the theory that an issue of fact with reference to the defense of immunity raised by the motion to dismiss was presented. The record does not indicate that any demand was made that the issue be submitted to a jury. Under the circumstances it may not be said that the circuit judge acted improperly in taking the testimony of witnesses and considering such testimony in deciding the motion. See in this connection Case v. City of Saginaw, 291 Mich. 130, 288 N.W. 357, in which this Court under somewhat analogous circumstances sustained the action of the trial court in taking proofs on an issue of fact involved in a motion to dismiss, reference being made to the State statute giving discretionary authority for such action. In Lisiecki v. Detroit-Wayne Joint Building Authority, 364 Mich. 565, 111 N.W.2d 803, motion to dismiss was granted without the taking of testimony and this Court reversed, holding that plaintiff was entitled to offer proofs to sustain her theory that the function of the defendant involved was proprietary in nature rather than governmental. In the case at bar plaintiff was given such opportunity.
On the record before us the question is presented whether the proofs taken on the motion to dismiss were sufficient to establish defendant's claim that in its arrangement with the State welfare department for the use by the latter of office facilities in the county building defendant was engaged in a governmental function. The general subject of public assistance and welfare is covered by the social welfare act of the State, P.A.1939, No. 280, as amended.* As set forth in the title of said act, there was created thereunder a State department of social welfare the powers and duties of which were specified at some length, and provision was also made for the establishing of county departments, bureaus of social aid and certain other bureaus and offices, the duties of which were likewise prescribed. It appears from the testimony taken in the instant case that the State agency and the county agency functioned within their proper spheres. The area representative of the State department of social welfare testified that the agency of the State department in defendant county was designated as the 'bureau of social aid' and was engaged in 'administering the categories of old age assistance, aid to dependent children, aid to the blind, aid to the totally and permanently disabled, and medical assistance to the aged.' He further stated that none of the functions of the Menominee county department of social welfare was performed in the State office. The testimony further disclosed that the functions of the Menominee county department of social welfare were to receive, and to procees, applications for funds of the county of Menominee. The establishment of county departments of social welfare is proviced for in section 45 of the statute (C.L.1948, § 400.45 [Stat.Ann.1960 Rev. § 16.445]). Said section reads as follows:
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...of care." Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 636, 178 N.W.2d 476, 480 (1970). See, also, Munson v. Menominee County, 371 Mich. 504, 124 N.W.2d 246 (1963); Bluemer v. Saginaw Central Oil & Gas Service, Inc., 356 Mich. 399, 97 N.W.2d 90 (1959); and Maki v. East Tawas, 385......
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Maki v. City of East Tawas
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Buckeye Union Fire Ins. Co. v. State
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