Watson v. Bay City School District , 324 Mich. 1 ( 1949 )

The judgment non obstante veredicto in favor of defendant should be affirmed.

The facts are sufficiently set forth in Mr. Justice BUSHNELL'S opinion to obviate their restatement. As therein indicated, plaintiff seeks to predicate liability on 3 grounds: (1) negligence; (2) public nuisance; (3) breach of implied contract. We consider these seriatim.

In the absence of a statute to the contrary, is the defense of "sovereign immunity" available to a municipal corporation in an action against it for damages resulting from the negligent performance of one of its functions by its agents or employees? Plaintiff properly contends that the answer is determined by the test of whether the function involved is a governmental function or a proprietary function. A few of the cases in which that defense has been upheld, as relates to governmental function, areWhite-head v. Detroit Board of Education, 139 Mich. 490;Brink v. City of Grand Rapids, 144 Mich. 472; Daniels v.Grand Rapids Board of Education, 191 Mich. 339 (L.R.A. 1916F, 468); Heino v. City of Grand Rapids, 202 Mich. 363 (L.R.A. 1918F, 528); Gunther v. Cheboygan County Road Commissioners,225 Mich. 619; Tzatzken v. City of Detroit, 226 Mich. 603;Butler v. City of Grand Rapids, 273 Mich. 674; McDonell v.Brozo, 285 Mich. 38. When the function has been held to be proprietary, "sovereign immunity" has been held to be no defense.Hodgins v. Bay City, 156 Mich. 687 (132 Am. St. Rep. 546);Sykes v. Village of Portland, 177 Mich. 290; Borski v.City of Wakefield, 239 Mich. 656; Bathke v. City of TraverseCity, 308 Mich. 1.

Defendant is a third-class school district under Act No. 319, part 1, chap. 6, § 2, Pub. Acts 1927, as amended¹ (2 Comp. Laws 1929, § 7220 [Stat. Ann. § 15.182]). That act authorizes the board of education to acquire sites for athletic fields and to build and equip buildings thereon (2 Comp. Laws 1929, § 7233² [Stat. Ann. § 15.195]). The act requires courses in health and physical education in all public schools (2 Comp. Laws 1929, § 7562³ [Stat. Ann. § 15.602]) and requires the superintendent of public instruction to prepare such courses for the public schools and gives him supervision over their interscholastic athletic activities (2 Comp. Laws 1929, §§ 7565, 7566⁴ [Stat. Ann. §§ 15.605, 15.606]). Thus the public schools are charged with responsibility for physical education and the duty of training bodies as well as minds, and the playing of games and interscholastic athletic contests are made a part of the educational program of the schools. As was said in Rhoades v. School District No. 9, Roosevelt County,115 Mont. 352 (142 Pac. [2d] 890, 160 A.L.R. 1):

"It is a matter of common knowledge that, in these schools, teams are selected to play against another team or teams of the same school; and that out of all of these are selected those who have acquired the greatest proficiency, and these compose the team which represents the school in contests with teams from other schools in the same general vicinity. In striving to make the first team there is great rivalry. A spirit of emulation is developed — all of which results in a more complete development of the physical powers. Undoubtedly, one of the elements which stimulate the contestants is that they will be afforded an opportunity of exhibiting their skill in games against their fellows of the same school or against teams of a different school. This, we think, is true, not alone as it pertains to physical sports, but the same may be said of debating teams, or of band concerts, or of exhibitions of the art department of a school. The fact that a band concert is held, or an exhibition of the work of those in the art department of the school had, brings better results in each of these departments. Therefore, we conclude that the basketball game in question was merely a part of the program of physical education of the school; and, consequently, the defendants were exercising governmental functions in connection therewith."

We can only conclude that the school function here involved was governmental, not proprietary. Plaintiff urges that the fact that an admission charge was paid by plaintiff's decedent and other spectators made the athletic event in question a proprietary rather than a governmental activity of the school. In point is the following language from the Rhoades Case:

"Counsel for plaintiff emphasize the fact that an admission fee was charged and assert that because such charge was made, the activity is removed from the field of governmental functions. With that we cannot agree. Little if any difference does it make whether the admission fee thus collected went into the school fund, or whether the expense of conducting this game of basketball was paid from general taxation. The result is the same. It advances the purpose of physical education. That is a part of the governmental functions of the school district and of its trustees."

In this connection plaintiff cites such cases as Hodgins v.Bay City, supra, and City of Bay City v. State Board of TaxAdministration, 292 Mich. 241, in which the municipality engages in the business of selling gas or electricity. In such instances it is the very nature of the function involved, not merely the revenue, that is determinative of its proprietary character. Here the football game was part of the school's physical education program. The function is inherently educational, a governmental function without doubt. See Daszkiewicz v. Detroit Board ofEducation, 301 Mich. 212, 221, and cases there cited. The incidental profit or revenue does not operate to change the character of that function. As this Court said in theDaszkiewicz Case:

"The collection of tuition from students and the admission of students only upon approval by a committee on admissions did not change defendant's operation of the medical school from a governmental function to that of a proprietary enterprise."

Plaintiff relies, however, as does Mr. Justice BUSHNELL'S opinion, on language in the case of Foss v. City of Lansing, 237 Mich. 633 (52 A.L.R. 185), as follows:

"We are of the opinion that the rule in Michigan is that, if a municipality is engaged in a governmental work with an incidental profit, it is liable the same as a private corporation would be."

In so saying, this Court seems to have qualified the rule that liability depends on whether the function is governmental or proprietary by adding a third classification; namely, governmental function with incidental profit, as to which it was held, in that case, that the defense of "sovereign immunity" does not apply. Decision was planted on Rowland v. Kalamazoo CountySuperintendents of Poor, 49 Mich. 553; Ostrander v. City ofLansing, 111 Mich. 693, and Hodgins v. Bay City, supra. Not one of these cases mentions, nor is it authority for, such third classification. In the Rowland Case liability was based on trespass and in the Ostrander and Hodgins Cases on holdings that the functions involved were proprietary. The Foss Case is cited in Johnson v. Ontonagon County Road Commission,253 Mich. 465, in which it is said that the function involved in theFoss Case was proprietary. In the Johnson Case this Court, speaking in direct opposition to the language of the above quotation from the Foss Case, said:

"Municipal corporations and other governmental agencies when performing a purely governmental function do not lose their immunity from liability for its negligent performance merely because they derive an income therefrom, provided the income is only incidental to the main purpose of so functioning and aimed at covering the cost of the undertaking."

To the extent that the Foss Case is authority for the proposition that liability rests on municipal corporations in cases of governmental functions with an incidental profit or revenue, we declined to follow it in the Johnson Case and decline to do so here. It should, to that extent, be deemed to be overruled. To plaintiff's claim of negligence the doctrine of "sovereign immunity" is a complete defense here.

Is defendant liable on a "public nuisance" theory? In this connection plaintiff cites Ferris v. Detroit Board ofEducation, 122 Mich. 315; Kilts v. Kent County Board ofSupervisors, 162 Mich. 646; Royston v. City of Charlotte,278 Mich. 255; and McDonell v. Brozo, supra. In the FerrisCase the plaintiff was injured by reason of snow and ice falling onto his property from the roof of an adjacent school building, which was so constructed that snow and ice must inevitably fall on plaintiff's property. This Court held defendant liable because "the injury is the result of the direct act or trespass of the municipality." In the Kilts Case the county was held not liable for plaintiff's injuries, sustained by reason of faulty construction of a scaffolding on a water tower on the county's premises on which plaintiff was working, this Court holding that there was no nuisance. In the Royston Case it was held that "the fact that the swing in question was knowingly maintained in a faulty and dangerous condition by the defendant city," with resultant injury to plaintiff's decedent, did not constitute a public nuisance and that the city was not liable. In theMcDonell Case it was held that permitting school boys to run races on a public sidewalk incident to physical education program was not a nuisance for which liability could be imposed on the school district for injury sustained when pupil participating in race ran into pedestrian and knocked her down. Assuming, as plaintiff contends, that safety required the ramp in the instant case to be lighted or surrounded by warning signs or a higher wall or railing, the case is, in effect, no different thanDaniels v. Grand Rapids Board of Education, supra, in which plaintiff fell over a 30-inch balustrade into an 18-foot stairwell. This Court declined to accept plaintiff's contention, in that case, that the stairway, with its low railing enclosing the well, was a nuisance, and held the defendant not liable. That case is controlling of the nuisance theory in this case.

Plaintiff relies on Scott v. University of Michigan AthleticAssociation, 152 Mich. 684 (17 L.R.A. [N.S.] 234, 125 Am. St. Rep. 423, 15 Ann. Cas. 515), in support of the theory that when defendant sold plaintiff's decedent a ticket it impliedly promised her that its property was in a safe and fit condition for her use as a spectator. In the Scott Case the defendant was not a municipal corporation, but a voluntary association. As in the case of any individual or private corporation, it owed a duty to its patrons to furnish bleacher seats which were safe and in fit and proper condition for use. In accepting the price of admission and admitting the plaintiff in that case it impliedly promised to perform that duty. The implied contract in such cases arises out of the existing legal duty and amounts to an implied agreement to carry out that duty. In the instant case defendant was a municipal corporation, was not liable for the negligent acts of its agents or employees, and owed plaintiff no duty to prevent such negligence; hence, there was lacking the element from which a promise might be implied, thus distinguishing it from the Scott Case. In Ford v. Independent SchoolDistrict, 223 Iowa, 795 (273 N.W. 870), plaintiff, employed to paint defendant's schoolroom, was furnished by defendant with a faulty scaffold on which to work, which broke, causing plaintiff to fall and suffer injuries. Plaintiff contended that defendant had impliedly contracted to furnish him a safe place in which to work. In rejecting his theory the court said:

"It is our opinion that no contract or warranty binding defendant school district, as claimed by plaintiffs, can be implied from such alleged state of facts. These alleged acts of defendant, if they transpired, were things done by defendant through its representatives and agents in the performance of governmental functions for the negligent doing of which the school district could not be held to respond in damages. Contracts implied in law rest on legal fiction. They arise from law or natural equity. When one is under legal obligation toperform a duty a promise may be inferred that the duty will befulfilled. But in the case here there was no legal obligationowing by the school district to plaintiffs while defendant wasengaged in performance of a governmental function. There havingbeen no legal duty or obligation, there was nothing as to thedoing of which the law would imply or infer a promise on part ofdefendant. Our conclusion has support in other jurisdictions. InWhitehead v. Detroit Board of Education, 139 Mich. 490, plaintiff alleged: That he had been employed by the defendant school district to paint its school buildings, and that defendant owed plaintiff the duty to furnish a safe place in which to work and to furnish him tools and accommodations reasonably safe for the use expected of them; that defendant furnished plaintiff a guy hook that defendant knew was defective and as a result the scaffold on which plaintiff was working gave way causing him to fall and receive the injuries for which he claimed damages. A demurrer to the petition was sustained, the grounds being that there was no statutory liability, and further that in the State of Michigan municipal corporations are not liable for the negligence of their servants when in the exercise of duties in connection with a governmental capacity of the corporation unless made so by statute. On appeal it was held the demurrer was properly sustained."

The judgment non obstante veredicto is affirmed, with costs of both courts to the defendant.

NORTH, BUTZEL, and CARR, JJ., concurred with DETHMERS, J.

¹ 2 Comp. Laws 1948, § 346.2. — REPORTER.

² See 2 Comp. Laws 1948, § 346.15. — REPORTER.

³ 2 Comp. Laws 1948, § 370.1. — REPORTER.

⁴ 2 Comp. Laws 1948, §§ 370.4, 370.5. — REPORTER.