Tzatzken v. City of Detroit

• Decision Date: 10 April 1924
• Docket Number: No. 81.,81.
• Citation: 226 Mich. 603,198 N.W. 214
• Parties: TZATZKEN v. CITY OF DETROIT.
• Court: Michigan Supreme Court

226 Mich. 603

198 N.W. 214

TZATZKEN

v.CITY OF DETROIT.

No. 81.

Supreme Court of Michigan.

April 10, 1924.

Error to Circuit Court, Wayne County; Guy M. Chester, Judge.

Action by Joseph Tzatzken against the City of Detroit. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Baubie & Baubie, of Detroit, for appellant.

James R. Walsh, of Detroit (Richard I. Lawson, of Detroit, of counsel), for appellee.

FELLOWS, J.

Members of the police force of the city of Detroit entered plaintiff's private residence without a warrant, searched the home, and found in a bedroom 53 quart bottles of brandy which he had purchased for his personal use before the prohibition law was in effect. They took away the 53 bottles and delivered to the police station 51 bottles. What became of the other two does not appear. It is said the liquor was of excellent quality. Later plaintiff was arrested and on examination was discharged and the liquor ordered returned. Every effort possible was made by plaintiff to locate the liquor and to secure its return, but he was sent from the station to the property clerk and back to the station, and this operation was repeated several times, but his efforts were unavailing. He filed his claim against the city, but it was rejected, and he brought this suit to recover against the city for the value of the liquor taken. Upon the trial it appeared that one quart bottle was turned over to the chemist, and the balance was delivered to the property clerk who turned it over to the federal authorities. The trial judge directed a verdict for the defendant on the ground that the police officers were in the discharge of a governmental function and the city was not liable for their torts.

We may not find difficulty in agreeing with plaintiff's counsel that the police department and officers are deserving of severe condemnation of their unlawful invasion of the sanctity of plaintiff's home, their disregard of plaintiff's constitutional rights, their disregard of the order of the court, their sending plaintiff from ‘pillar to post’ without any good faith effort on their part to return the liquor unlawfully taken. But the question with which we are concerned is whether the city, a municipal corporation, is liable for the torts of its police officers.

Counsel for both parties very fairly discuss the fact that the municipality exercises dual powers, one as an arm of the state, in which all the members of the public are alike concerned, and the other the exercise of the powers of a proprietary character, and both counsel agree that it is sometimes difficult to draw the line of cleavage. In the recent cases of Gunther v. County Road Commissioners, 225 Mich. 619, 196 N. W. 386, and Attorney General v. City of Detroit, 225 Mich. 631, 196 N. W. 391, we fully considered the question of this duality of power. It may be here noted that some of the cases cited by plaintiff's counsel from other jurisdictions are not in accord with our conclusion in the Gunther Case. We shall not again review the cases from this and other jurisdictions cited by us in these two cases, but will content ourselves with considering only those authorities dealing with the liability of the municipality for the torts of its police officers. In section 1656, Dillon on Municipal Corporations (5th Ed.) with the citation of numerous cases in the foot notes, it is said:

‘Agreeably to the principles just mentioned, police officers appointed by a city are not its agents or servants in such a sense as to render it responsible for their unlawful or negligent acts in the discharge of their public duties as policemen; and, accordingly, a city is not liable for an assault and battery committed by its police officers, though done in an attempt to enforce an ordinance of the city; or for an arrest made by them which is illegal for want of a warrant, or for other cause; or for their unlawful acts of violence whereby, in the exercise of their duty of suppressing an unlawful assemblage of slaves, the plaintiff's sale was killed.’

In Buttrick v. City of Lowell, 1 Allen (Mass.) 172, 79 Am. Dec. 721, Chief Justice Bigelow, speaking for the court, said:

‘Police officers can in no sense be regarded as agents or servants of the city. Their duties are of a public nature. Their appointment is devolved on cities and towns by the Legislature as a convenient mode of exercising a function of government; but this does not render them liable for their unlawful or negligent acts. The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar powers and duties with which police officers and constables are intrusted, are derived from the law, and not from the city or town under which they hold their appointment. For the mode in which they exercise their powers and duties the city or town cannot be held liable.’

In McIlhenney v. Wilmington, 127 N. C. 146, 37 S. E. 187,50 L. R. A. 470, the plaintiff had been arrested without warrant and without cause. He sought to recover from the city for his unlawful arrest and imprisonment. In disposing of the case it was said:

‘Upon reason and authority, the defendant city is exempt from the liability here sought to be imposed upon it equally whether it is for a tort or negligence, and whether the recovery is sought by reason of the misconduct of the officer in making the arrest, or in the act of the mayor and aldermen in appointing or retaining an unsuitable officer, with knowledge of his unfitness. In either aspect, the conduct of the officer is in the discharge of official and governmental duty, and the taxpayers of the city are not...