Rogers v. Kent County Road Comrs. , 319 Mich. 661 ( 1947 )

After an opinion was filed in this cause a rehearing was granted on the question of defendant's governmental immunity from liability for acts of trespass and negligence by its agents and employees. Although an attempt is made in the briefs to secure reconsideration of other phases of the case, the order granting rehearing limits the scope of our present inquiry.

The facts are sufficiently stated in the original opinion. It is also pointed out therein that section 24 of Act No. 135, Pub. Acts 1939, as amended by Act No. 237, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 13862-26, Stat. Ann. 1943 Cum. Supp. § 27.3548 [24]) was not repealed until 90 days after the adjournment of the regular session of the legislature on June 7, 1945. See Act No. 87, Pub. Acts 1945. Therefore, at the time of the accident in question (July 23, 1945) the 1943 act which waived governmental immunity was in effect. That act was silent as to waiver of the governmental immunity of counties and only provided for the hearing and determination of claims in the court of claims.

In Maffei v. Berrien County, 293 Mich. 92, this Court quoted with approval the following from 14 Am. Jur. p. 216, § 49:

"`The principal ground upon which it is held that counties are not liable for damages in action for their neglect of public duty is that they are involuntary political divisions of the State, created for public purposes connected with the administration of local government. They are involuntary corporations, because created by the State, without the solicitation or even the consent of the people within their boundaries, and made depositaries of limited political and governmental functions, to be exercised for the public good, in behalf of the State, and not for themselves. They are in fact no less than public agencies of the State, invested by it with their particular powers, but with no power to decline the functions devolved upon them, and hence, are clothed with the same immunity from liability as the State itself. In other words, the rule of nonliability for torts is dictated by public policy. Since a suit against the county is in effect a suit against the State, an action will not lie without the consent of the legislature.'"

Was such consent granted by the waiver of immunity clause in the 1943 act, supra?

Unless during the period covered by the life of section 24 of this act, the legislature intended to preserve greater immunity in a case involving a county than that involving the State, it must be held that the waiver of governmental immunity extended to claims against counties. But it is argued that the only forum provided for the hearing of such claims was a court of claims. This argument ignores that portion of section 24 which expresses the consent of the State to have its liability for torts "determined in accordance with the same rules of law as apply to an action in the circuit court against an individual or a corporation."

If any waiver of immunity as to counties existed, such waiver must be found within the language of the 1943 act, and it also must be determined that actions against counties could, under its language, be brought in the circuit court.

Was there any intention on the part of the legislature to deprive the State of the defense of governmental immunity and leave this same defense available to its political subdivisions? Such was the question resolved in Bernardine v. City of NewYork, 294 N.Y. 361 (62 N.E. [2d] 604, 161 A.L.R. 364, decided July 19, 1945). That court said:

"Section 8 of the court of claims act says: `The State hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations.' The gist of this waiver and consent of the State has been operative since 1929, and is limited only by the incidental procedure prescribed in article 2 of the same act. None of the civil divisions of the State — its counties, cities, towns and villages — has any independent sovereignty. See N.Y. Const. art. 9, § 9; City ofChicago v. Sturges, 222 U.S. 313, 323 (32 Sup. Ct. 92,56 L.Ed. 215, Ann. Cas. 1913B, 1349; Keifer Keifer v.Reconstruction Finance Corporation, 306 U.S. 381 (59 Sup. Ct. 516, 83 L.Ed. 784). Cf. Gaglio v. City of New York (C.C.A.),143 Fed. [2d] 904. The legal irresponsibility heretofore enjoyed by these governmental units was nothing more than an extension of the exemption from liability which the State possessed. Murtha v. New York Homeopathic Medical College Flower Hospital,228 N.Y. 183, 185 (126 N.E. 722). On the waiver by the State of its own sovereign dispensation, that extension naturally was at an end and thus we were brought all the way round to a point where the civil divisions of the State are answerable equally with individuals and private corporations for wrongs of officers and employees, — even if no separate statute sanctions that enlarged liability in a given instance. Holmes v. County of Erie,291 N.Y. 798 (53 N.E. [2d] 369). Of course, the plaintiff in such a case must satisfy all applicable general statutory or charter requirements in the way of presentation of claims, notice of injury, notice of intent to sue and the like.

"The plea which was most often made for the immunity of the civil divisions of the State was an assertion that officers and employees thereof — when engaged in the discharge of so-called governmental functions — acted as delegates of the State and not in behalf of any municipal master. Murtha v. New YorkHomeopathic Medical College Flower Hospital, 228 N.Y. 183, 185 (126 N.E. 722). On this former basis, it is possible to suggest that the State has now laid itself open to suit for wrongs of officers or employees of its civil divisions. But any view point of that kind would be vain, since the argumentation that had been contrived as a front for the doctrine of governmental immunity did not survive the renouncement of that doctrine. Cf. Miller v. City of New York, 292 N.Y. 571 (54 N.E. [2d] 690)."

See other authorities annotated in 161 A.L.R. p. 367 et seq.

In the original opinion, this Court held that the judgment of the circuit court dismissing the cause of action should be reversed and the cause remanded for such further proceedings as shall be found necessary. On re-examination we adhere to our former conclusion.

REID, J., concurred with BUSHNELL, C.J.