Robinson v. Washtenaw Circuit Judge

• Citation: 199 N.W. 618,228 Mich. 225
• Decision Date: 24 July 1924
• Docket Number: No. 284.,284.
• Parties: ROBINSON v. WASHTENAW CIRCUIT JUDGE (two cases).
• Court: Supreme Court of Michigan

228 Mich. 225

199 N.W. 618

ROBINSON

v.WASHTENAW CIRCUIT JUDGE (two cases).

No. 284.

Supreme Court of Michigan.

July 24, 1924.

Separate applications for writ of mandamus by Claude A. Robinson and Fay Robinson against George W. Sample, Washtenaw Circuit Judge. Writs denied.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Wm. Henry Gallagher, of Detroit, for relator.

Cavanaugh & Burke, of Ann Arbor, for respondent.

STEERE, J.

Plaintiffs in the above-entitled cases are husband and wife. Each commenced a tort action in the circuit court of Washtenaw county against Dr. Scott C. Runnells and the Regents of the University of Michigan to recover damages resulting from injuries alleged to have been wrongfully inflicted upon her (Fay Robinson) while a surgical patient in the University hospital. The questions involved in these mandamus proceedings are substantially the same in both cases, and they were submitted upon the same briefs.

Service was duly had upon defendants, and similar declarations, each containing two counts of like import, were filed and served. Counsel for defendants appeared specially in said cases, and entered motions requesting the court for orders dismissing the declarations, ‘or, in the alternative, in case such relief cannot be granted, to dismiss the second count in said declarations against said Regents of the University of Michigan,’ stating various grounds therefor. The court denied said motions as to Dr. Runnells and granted them as to the Regents. Plaintiffs ask mandamus to compel defendant herein to set aside his orders dismissing the declarations against the Regents.

The first count in the declarations alleges that Mrs. Fay Robinson, being ill, consulted Dr. Runnells, a physician and agent of the Regents of the University, who advised her that an abdominal operation was necessary, to which she consented, and was operated upon at the University hospital by him, and charges that in performing the operation he negligently permitted a sponge which he had placed in her abdomen to remain after the wound caused during the operation had been closed, in consequence of which she suffered greatly, and became yet more dangerously ill, rendering another operation necessary in order to save her life, which disclosed the presence of the sponge left there during the former operation. The second count in the declarations more distinctly charges such neglect and lack of skill, with the serious results which followed, to the Regents of the University of Michigan, their physicians, nurses, agents, servants, etc.

Plaintiff's counsel in his brief points out that the actions are not brought ‘against the hospital of the University of Michigan, but against the Regents of the University of Michigan,’ and urges that the question is disposed of by the provision of section 1159, Comp. Laws 1915, providing that ‘the Board of Regents shall constitute the body corporate, with the right as such of suing and being sued,’ contending that the Regents are in no sense an eleemosynary institution entitled to be excepted from the general rule that a corporation is liable for the torts of its agents; while counsel for the Regents urge that no cause of action is stated against them because the University hospital, maintained under the direction of the Regents in connection with its medical department, is a charitable institution, eleemosynary in character. Other objections are raised, but this is the only one which we regard as calling for serious consideration.

The Regents of the Michigan University are constitutional state officers, their selection and election being on the same basis as that of the judges of the Supreme and circuit courts, the state superintendent of public instruction, and other specified state officers who are elected at the biennial spring election, all of whose names are required by law to be placed upon an official state ballot in a designated order, those of the Regents being second on the list.

Our Constitution recognizes ‘education’ as a subject of governmental concern and activity. Its article 11 is so entitled and devoted to that subject, three sections of which relate exclusively to regents of the University, who are to be eight in number, hold office for eight years, two to...