Sayers v. School Dist. No. 1 of Fractional Tps. of Argentine and Deerfield, Counties of Genesee and Livingston

• Decision Date: 01 June 1961
• Docket Number: Nos. 8,s. 8
• Citation: 366 Mich. 217,60 A.L.R.2d 1198,114 N.W.2d 191
• Parties: Ollie Lee SAYERS, an Infant, by Oliver L. Sayers, his Next Friend, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 1 OF the FRACTIONAL TOWNSHIPS OF ARGENTINE AND DEERFIELD, COUNTIES OF GENESEE AND LIVINGSTON, State of Michigan, and Jud E. Wolfe, Sr. Jud E. Wolfe, Jr., and Clarence F. Wolfe, d/b/a Wolfe Lumber and Building Supplies, d/b/a Wolfe Construction Company, Jointly and Severally, Defendants and Appellees. Oliver L. SAYERS, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 1 OF the FRACTIONAL TOWNSHIPS OF ARGENTINE AND DEERFIELD, COUNTIES OF GENESEE AND LIVINGSTON, State of Michigan, and Jud E. Wolfe, Sr., Jud E. Wolfe, Jr., and Clarence, F. Wolfe, d/b/a Wolfe Lumber and Building Supplies, d/b/a Wolfe Construction Company, Jointly and Severally, Defendants and Appellees. ,
• Court: Michigan Supreme Court

Page 191

114 N.W.2d 191

366 Mich. 217

Ollie Lee SAYERS, an Infant, by Oliver L. Sayers, his Next

Friend, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 1 OF the FRACTIONAL TOWNSHIPS OF

ARGENTINE AND DEERFIELD, COUNTIES OF GENESEE AND LIVINGSTON,

State of Michigan, and Jud E. Wolfe, Sr. Jud E. Wolfe, Jr.,

and Clarence F. Wolfe, d/b/a Wolfe Lumber and Building

Supplies, d/b/a Wolfe Construction Company, Jointly and

Severally, Defendants and Appellees.

Oliver L. SAYERS, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 1 OF the FRACTIONAL TOWNSHIPS OF

ARGENTINE AND DEERFIELD, COUNTIES OF GENESEE AND LIVINGSTON,

State of Michigan, and Jud E. Wolfe, Sr., Jud E. Wolfe, Jr.,

and Clarence, F. Wolfe, d/b/a Wolfe Lumber and Building

Supplies, d/b/a Wolfe Construction Company, Jointly and

Severally, Defendants and Appellees.

Nos. 8, June Term, 1961, 9, June Term, 1961.

Supreme Court of Michigan.

March 19, 1962.

Miner & White, Fenton, for plaintiffs and appellants; Robert A. McKenney, Holly, of counsel.

Gault, Davison & Bowers, by Russell E. Bowers, Flint, for defendants and appellees.

Before the Entire Bench, except SMITH and ADAMS, JJ.

KAVANAGH, Justice.

These two cases, consolidated for trial and for this appeal, were brought by Oliver L. Sayers--one in his own right and one as guardian of his son--for expenses and personal injuries suffered by the son, Ollie Lee Sayers, a pupil of School District No. 1, who was injured while playing on the school grounds. The boy suffered injuries as a result of stepping into a hole created by construction work. These actions were brought against the contractors constructing new buildings and against the school district itself.

Defendant school district raised the affirmative defense of governmental immunity. Plaintiff replied, admitting defendant school district was in the exercise of a governmental function, but contending the school district had waived its immunity by purchasing a policy of general liability insurance.

The lower court granted defendant school district's motion for summary judgment saying the action was barred by the doctrine of governmental immunity and that the purchase of insurance did not constitute a waiver of this immunity.

We are asked to reverse the trial court by holding the doctrine of governmental immunity is no longer available to a school district. To do so we would have to reverse a number of decisions of our Court dealing with the doctrine of governmental immunity as applied to school districts. Under our decisions the school district as an agency of the State has been clothed with the State's immunity from liability. Whitehead v. Detroit Board of Education, 139 Mich. 490, 102 N.W. 1028; Daniels v. Board of Education of City of Grand Rapids, 191 Mich. 339, 158 N.W. 23, L.R.A.1916F, 468; Richards v. Birmingham School District, 348 Mich. 490, 83 N.W.2d 643.

If we were dealing with the obsolete 'king can do no harm' edition of governmental immunity established by the courts, we would not hesitate to strike it down for the reasons set forth in Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1. However, here we are concerned with the repeal of the doctrine of governmental immunity by the legislature through the enactment of Act No. 237 of the Public Acts of 1943 and its re-establishment by the legislature by Act No. 87 of the Public Acts of 1945, which this Court has construed as determining the legislative intent to re-establish the doctrine by statute. Van Antwerp v. State, 334 Mich. 593, 55 N.W.2d 108; McDowell v. State Highway Commissioner, 365 Mich. 268, 112 N.W.2d 491.

The only other question raised on appeal is whether the purchase of a general liability policy of insurance by defendant school district constitutes a waiver of the defense of governmental immunity. It is pointed out by appellant that Illinois, in the case of Thomas v. Broadlands Community Consolidated School District, 348 Ill.App. 567, 109 N.E.2d 636 and in Moore v. Moyle, 405 Ill. 555, 92 N.E.2d 81, has adopted such a rule of law. We find no authority other than the Illinois cases to justify our reversing the Michigan position. We do not feel free to do so in view of the intent of the legislature in re-establishing a defense of governmental immunity in such cases.

The orders granting the summary judgments in favor of defendant school district are affirmed. Defendant school district shall have costs.

DETHMERS, C. J., and BLACK, J., concurred with KAVANAGH, J.

SOURIS, Justice (dissenting).

By our decision in this case, and in McDowell v. State Highway Commissioner, 365 Mich. 268, 112 N.W.2d 491, all of the former ¹ horror of our common law rule of governmental immunity is restored to full bloom and, by an adroit dribble in this 'game of quasi-legal basketball,' ² responsibility therefor is passed to the legislature. What we are told is that the old common law rule of governmental immunity has become a legislative rule, subject to modification only by the legislature, by virtue of simple repeal of a prior statutory waiver of the state's immunity.

For too long on this Court the felt need for change in 'grievously unjust' ³ rules of the common law has been thwarted, or at least delayed, by the fanciful notion that legislatures legislate by keeping silent. For payment of meritoriously due respects to this obstacle to performance of our oathbound judicial duty, see Mr. Justice Talbot Smith's opinions in Reed v. Employment Security Commission, 364 Mich. 395, at p. 399, 110 N.W.2d 907, and Sheppard v. Michigan National Bank, 348 Mich. 577, at p. 599, 83 N.W.2d 614.

Today, a like need is thwarted, perhaps only delayed, by an even more fanciful notion that legislatures adopt as their very own doctrines originally conceived, born and nurtured to maturity by common law courts simply by cryptically repealing ⁴ an intervening statutory waiver of the common law doctrine's grant of immunity. We are told that by this sequence of legislative waiver of judge-made governmental immunity and subsequent repeal, and by nothing more, the previously waived common law doctrine is magically reincarnated not in its original common law flesh and blood and bones, but rather in an ethereal legislative form,--ethereal because it cannot be found, as can other 'creatures of the legislature,' ⁵ in the state's statute books. If its form and shape and substance are to be discerned, we must look only to the dusty reports of this Court's decisions.

Whether P.A.1943, No. 237 be considered to have 'repealed' or 'abolished' the common law doctrine or whether it be considered to have only waived the state's immunity from liability recognized by the doctrine, its own subsequent repeal cannot have the result claimed by our majority in McDowell and here. If Act No. 237 was a waiver, as I believe it was, it left the common law doctrine intact but waived, in express language, the state's immunity from liability. The subsequent withdrawal of that waiver, by P.A.1945, No. 87 (the repealer act), did not affect the continuing vitality of the common law doctrine. In no sense can the waiver be considered, in my view, as a complete abrogation of the common law doctrine. That, however, is the view this Court has mistakenly taken.

But, even if that view were correct,--that Act No. 237 repealed or abolished the common law doctrine of governmental immunity,--the subsequent repeal of Act No. 237 by Act No. 87 has the effect at common law of reinstating the common law doctrine in the absence of legislative mandate to the contrary. For recent application of this common law rule, see State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353. See, also, Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297, 77 A.L.R.2d 329, where the common law rule is recognized.

The same rule at common law applied to revive statutes repealed by acts which, in turn, were later repealed. Bender v. U. S., 3 Cir., 93 F.2d 814. In this state, however, the common law rule as it applied to statutory law has been changed. C.L.1948, § 8.4 (Stat.Ann.1961 Rev. § 2.213) provides:

'Whenever a statute, or any part thereof shall be repealed by a subsequent statute, such statute, or any part thereof, so repealed, shall not be revived by the repeal of such subsequent repealing statute.'

But no change was made in the rule as it applied to legislative abrogation of the common law. Hence, even if we assume that the common law doctrine of governmental immunity was repealed by Act No. 237, under the common law it was revived (as a common law doctrine) by the subsequent repeal of Act No. 237.

I conclude from all of the foregoing that we judicial descendants of the creators of the governmental immunity doctrine have now, and had when we decided Williams v. City of Detroit, supra, the power and the duty to relieve its judge-made injustice. This power and this duty we share equally...