Myers v. Genesee County Auditor

Decision Date01 March 1965
Docket NumberNo. 7,7
Citation133 N.W.2d 190,375 Mich. 1
PartiesDelores MYERS, Administratrix of the Estate of Sharon Myers, deceased, Plaintiff and Appellant, v. GENESEE COUNTY AUDITOR, the Board of Trustees of the Genesee County Tuberculosis Sanatorium, a body corporate, as such and d/b/a Genesee County Memorial Hospital, Genesee County Board of Supervisors, Defendants and Appellees.
CourtMichigan Supreme Court

D. Bruce Wistrand, Donald T. Butler, Philip Elliott, Flint, for plaintiff and appellant.

Moll, Desenberg, Purdy, Glover & Bayer, Detroit, John G. David, Flint, for defendants and appellees.

Before the Entire Bench, except SMITH, J.

O'HARA, Justice.

Genesee county operates a hospital. It was formerly known as the County Sanatorium and its use was restricted to patients suffering from tuberculosis. Later, pursuant to statute, 1 its status was changed to a general hospital. It provided treatment for Genesee county welfare patients and also accepted private pay patients.

Plaintiff's decedent, a 7-year-old child, was one of those latter. She was admitted as such on February 27, 1961, and died therein the following day after a tonsillectomy. It is claimed by her personal representative that her death was occasioned by wrongful acts and omissions of the hospital staff. A suit was started against the principals named herein in January, 1962. It was designated No. 44,645, Genesee county. The responsive pleading, which is not included in either appendix, apparently raised the defense of governmental immunity and must further have challenged the action for plaintiff's failure to have precedently complied with the constitutional 2 and statutory 3 requirements of first filing a claim with the proper Genesee county officials. The motion to dismiss was granted on September 26, 1962. If an opinion accompanied the order at that time it has not been made a part of either appendix. On October 4, 1962, plaintiff filed the claim as required. October 23, 1962, it was rejected by the Genesee county board of supervisors. Appeal from its disallowance was duly taken November 13, 1962. Thereupon, pursuant to statute, 4 the claim as filed became 'equivalent to the declaration' and defendants again pleaded thereto by special appearance and motion to dismiss supported by affidavit. The trial court denied the motion and set the matter down for trial before a jury. His opinion, on the motion, was dated December 20, 1962. On February 26, 1963, the court, in a brief supplemental opinion, rejected defendants claim that the grant of the motion to dismiss in the original action (44,643) operated as a bar to the instant action (47,563) by reason of the plea of res judicata. Thereupon, defendants made a motion for summary judgment. Affidavits and counter-affidavits were duly filed. This motion was granted and it is in this posture the case reached us on appeal.

Plaintiff asks:

First: Should a county continue to enjoy governmental immunity from tort liability?

Second: If this Court continues to hold that it should, but only when engaged in a governmental function, was defendant-county in this case, in its relationship to plaintiff's decedent, engaged in a proprietary function and thus not governmentally immune?

Third: Did plaintiff's claim, as filed, state a cause of action for breach of an implied contract to furnish hospital services, as distinguished from a claim based on negligence?

Before answer to these questions is undertaken, it may not be untoward to review briefly the status of the concept of governmental immunity in our State. This for the reason that in recent years this Court has divided sharply, and in some cases indecisively, in cases involving the doctrine.

First, it is well to note that strictly speaking 'sovereign' immunity and 'governmental' immunity are not synonymous. True, they have been over the years used interchangeably in decisions, but a delineation may be helpful. Sovereign immunity is a specific term limited in its application to the State and to the departments, commissions, boards, institutions and instrumentalities of the State. The reason is the State is the only sovereignty in our system of government, except as the States delegated part of their implicit sovereignty to the Federal government. U.S.Const. Amend. 10, provides:

'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

At common law the sovereign was immune from suit by a subject. The common law, by Constitution, is the law of our State:

'The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.' Const.1963, art. 3, § 7.

The meaning of the article is readily discernible. The common law as well as statutes abide unless 'changed, amended or repealed.' 'Amendment' and 'repeal' refer to the legislative process. 'Change' must necessarily contemplate judicial change. The common law is not static; fixed and immutable as of some given date. Thus sovereign immunity as a part of the common law obtains only unless and until it is altered by amendment, repeal or change.

This doctrine, inherited with the common law in Michigan, has never by a majority of this Court been judicially 'changed' as to the State. Importantly, however, the doctrine was construed by a majority of this Court to have been legislatively repudiated, readopted and modified. The case which clearly makes this important distinction is McDowell v. State Highway way Commissioner, 365 Mich. 268, at p. 271, 112 N.W.2d 491, p. 492:

"So far as the State itself is concerned, the doctrine of sovereign immunity as it presently exists in Michigan is a creature of the legislature. The doctrine has been modified by the legislature, abolished by the legislature, re-established by the legislature, and further modified by the legislature.' 5

'The judiciary has no right or power to repeal statutes. As said by the attorney general, the legislature has willed that the present defendants be and remain immune from liability for torts such as these plaintiffs have alleged. There they must stand, legally, until the legislature wills to the contrary.'

This opinion was signed by a clear majority of this Court--5 Justices--4 of whom are still members of this seated Court.

Justice Black emphasized this point in that decision, quoting from Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1. He pinpoints what is encompassed by the term the State when used in relationship to 'governmental,' i. e., 'sovereign' immunity:

"That doctrine includes within its purview the State and 'its departments, commissions, boards, institutions, arms or agencies."' McDowell, supra, 365 Mich., p. 269, 112 N.W.2d, p. 491.

Thus, as of this decision day under settled law, the State and its immediate integral parts, enjoy absolute immunity from tort liability by reason of the negligent acts or omissions of its servants or agents, except as that liability has been statutorily modified. 6 Over the years, by judicial construction, this 'sovereign' immunity has been transmogrified into 'governmental' immunity and made applicable to the 'inferior' divisions of government, i. e., townships, school districts, villages, cities and counties, but with an important distinction. These subdivisions of government enjoyed the immunity only when engaged in 'governmental' as distinguished from 'proprietary' functions. It would serve no purpose here to retrace the myriad lines of demarcation. It is pertinent to add that the distinction has at times been judicially regarded as a question of fact and not of law, requiring a testimonial or other evidentiary record for determination.

And so the law stood until Williams v. City of Detroit, supra. There a confusing chapter was added because this Court, though numerically evenly divided as between affirmance and reversal, really represented a 5-3 holding as to the liability of 'municipal corporation.' For a review of that decision and its effect, see Sherbutte v. City of Marine City, 374 Mich. 48, 130 N.W.2d 920. As the decision in Williams is relevant here 'municipal corporation' lost their tort immunity for the negligence of their servants, agents and employees, irrespective of whether the municipal corporation was acting in a 'governmental' or 'proprietary' capacity.

To recapitulate then, as of today the State and its agencies are absolutely immune (except as legislatively excepted) from tort liability; subdivisions of government, except municipal corporations are immune when functioning 'governmentally,' but not 'proprietarily,' and municipal corporations are without any governmental immunity, as to tort liability.

Thus oriented, we address ourselves to the first question posed by plaintiff-appellant. Restated for decisional purpose here we may rightly inquire: since municipal corporations--and for our purpose here we mean incorporated cities, statutory or home-rule charter--are liable in tort for the negligence of their agents and servants, what distinction in law, logic or reason is there to maintain a distinction between a city, as above specified, and a county, a township or a village? We see none. All are creatures of the constitution with the powers and immunities provided by law. In the case of a county which might historically be differentiated, the Constitutions of 1908 and 1963 both define them as a 'body corporate.' 7 Rightfully, we inquire again what distinguishes a constitutional 'body corporate' from a 'municipal corporation.' In candor, we must say the distinction, if any, is one without a difference. If some one falls down an unguarded elevator shaft in the city hall, he recovers if the shaft were negligently maintained. If the identical occurrence eventuates in the county courthouse, the village or township hall, the...

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    ...sovereignty to the Federal government.” [7] [ Pohutski, supra at 682, 641 N.W.2d 219, quoting Myers v. Genesee Co. Auditor, 375 Mich. 1, 6, 133 N.W.2d 190 (1965) (opinion by O'Hara, J.) (emphasis in original).]All defendants in this cause of action are state agents and agencies. Accordingly......
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