Zynda v. Michigan Aeronautics Commission, 36
| Decision Date | 03 February 1964 |
| Docket Number | No. 36,36 |
| Citation | 372 Mich. 285,125 N.W.2d 858 |
| Parties | Andrew S. ZYNDA, Plaintiff and Appellant, v. MICHIGAN AERONAUTICS COMMISSION, Michigan Department of Aeronautics, Defendants and Appellees. |
| Court | Michigan Supreme Court |
Carl H. Reynolds, Lansing, Norman French, Detroit, for plaintiff, and appellant.
Frank J. Kelley, Atty. Gen., by Harold H. Warner, Sp. Asst. Atty. Gen., Lansing, for defendants and appellees.
Before the Entire Bench.
SOURIS, Justice (for reversal and remand).
Plaintiff's airplane was damaged when a hangar door fell upon it as defendants' employees were removing it, at plaintiff's request, from a hangar located upon an airport operated by defendants. Attempts to reach a settlement having failed, plaintiff filed a statement of claim with the court of claims in accordance with the provisions of C.L.1948, § 691.101 et seq. (Stat.Ann.1959 Cum.Supp. § 27.3548(1) et seq.).* That court granted defendants' motion to dismiss, reasoning that in accordance with recent decisions of this Court (McDowell v. State Highway Commissioner, 365 Mich. 268, 112 N.W.2d 491, and Sayers v. School District, No. 1, Fractional etc., 366 Mich. 217, 114 N.W.2d 191) a state agency could, as defendants did in their motion, avail itself of the defense of governmental immunity to a cause of action in tort. The court held further that nothing could be found in plaintiff's statement of claim which could be taken to allege a contractual cause of action and, in any event, defendants' operation of the airport was not a proprietary function from which either contractual or tort liability could be imposed upon defendants.
Plaintiff's claim alleged that defendants had contracted to lease the hangar to him and to provide certain services, including moving the aircraft into and out of the hangar, and that while defendants' employees were in the performance of this agreement, the aircraft had been damaged. Included in an attached memorandum agreement is a statement that the defendant department of aeronautics would not 'assume any liability for loss due to fire or theft within the hangar.' Plaintiff's allegations adequately pleaded the issue of defendants' breach of a contractual obligation to service the aircraft without damaging it, the existence of which obligation is at least inferable from the specific disclaimer of liability only with respect to loss incurred as a result of fire or theft. Expressio unius est exclusio alterius. 3 Corbin, Contracts 206 and cases there cited.
The assumption indulged by the court of claims in its...
To continue reading
Request your trial
-
Ross v. Consumers Power Co.
...333, 339, 9 N.W.2d 567 (1943); W.H. Knapp Co. v. Highway Dep't, 311 Mich. 186, 188, 18 N.W.2d 421 (1945); Zynda v. Aeronautics Comm., 372 Mich. 285, 287, 125 N.W.2d 858 (1964).54 Denying immunity for breach of contract by a governmental entity will not enable plaintiffs generally to avoid t......
-
Greenfield Const. Co. Inc. v. Michigan Dept. of State Highways
...the State for contractual liability arising out of either governmental or proprietary operations". Zynda v. Aeronautics Commission, 372 Mich. 285, 287, 125 N.W.2d 858, 860 (1964). While the state's judge-made sovereign immunity from suit may, as held in Manion, "be waived without a waiver o......
-
Clark Bros. Sales Co. v. Dana Corp.
...to pay other sorts of commissions, such as the post-termination commissions sought by Plaintiff. See Zynda v. Michigan Aeronautics Comm'n, 372 Mich. 285, 125 N.W.2d 858, 859 (1964); Grinnell Bros. v. Brown, 205 Mich. 134, 171 N.W. 399, 400 (1919) ("The expression of one thing is the exclusi......
-
Blue Fox Bar, Inc. v. City of Yankton
...the state for contractual liability arising out of either governmental or proprietary operations. Zynda v. Michigan Aeronautics Commission, 372 Mich. 285, 125 N.W.2d 858, 860 (1964); Department of Parks and Recreation v. West-A-Rama, Inc., 35 Cal.App.3d 786, 111 Cal.Rptr. 197, 202 (1973). S......
-
FFF Sovereign Immunity Series ' Part V
...N.E.2d 1370, 1371 (Mass. 1984) 2 See Davidson v. State, 201 N.W.2d 296, 298 (Mich. Ct. App. 1972) (citing Zynda v. Aeronautics Comm'n, 125 N.W.2d 858 (Mich. 3 Const 1963, art 9, Sec 18 4 Minn. Stat. '3.751. 5 McDonough v. City of Rosemount, 503 N.W.2d 493, 497; City of Minneapolis v. Ames &......