Richards v. Birmingham School District

83 N.W.2d 643, 348 Mich. 490, 1957 Mich. LEXIS 446

• Court: Michigan Supreme Court
• Decided: June 3, 1957
• Docket: Docket 64, Calendar 46,672
• Status: Published

Opinions

Carr, J.

Plaintiff herein is, and for a number of years past has been, a practicing dentist in the city of Royal Oak. On November 25, 1948, which was Thanksgiving Day, he attended a football game between teams representing the high schools of Royal Oak and Birmingham, the game being played on the athletic field of the latter district. In preparation for the game said defendant had leased from a co-partnership doing business as the Atlas Portable Bleacher Company several bleachers to be used at the game in conjunction with other bleachers previously erected. At the time in question the athletic field was surrounded by a fence, with ticket offices on the west side and at the southeast. Plaintiff, and friends who accompanied him, procured tickets shortly before the scheduled time for the game and entered the field. They took their places on one of the leased Atlas bleachers which was located on the east side of the field at or in proximity to the north 30-yard line, if extended, of the playing field.

A few minutes before the starting of the game the bleacher on which plaintiff was seated, with other bleachers adjacent thereto, collapsed, as a consequence of which plaintiff sustained serious physical injuries. This action was instituted against the Birmingham school district and the copartners, doing business as the Atlas Bleacher Company, George B. Post and Georgiana Stringham,- to recover damages. The declaration filed charged that the copart-ners were guilty of negligence in that the bleachers which they rented to the school district were improperly and negligently constructed. It was further alleged that the district, which by the leasing contract had assumed responsibility for the erection of the bleachers, was negligent in so doing in that due care was not exercised in the process. It was plaintiff’s theory as evidenced by his' pleadings and proofs that the injuries sustained by him were the proximate result of the concurrent negligence of the defendants.

A motion to dismiss the declaration was made by defendant school district on the ground that under the facts alleged in the pleading there was no liability on its part. The other defendants presented a motion of like character, claiming that there was a mis-joinder of parties. Both motions were denied, but without prejudice. Defendants filed answers to plaintiff’s declaration, denying liability, and the parties proceeded to trial before a jury. In support of his claims as set forth in the declaration, proofs were offered on behalf of plaintiff with reference to the construction of the so-called Atlas bleachers and the manner in which they were erected by the school district. 'Witnesses, including plaintiff, testified as to the condition of the ground beneath said bleachers, indicating that it was wet, possibly to the extent of being muddy, at the time of the game, and that proper planking or other base support was not placed beneath the bleachers in order to prevent tilting. A mechanical engineer, called as an expert, gave testimony with reference to the construction of the Atlas bleachers, with particular reference to the ability thereof to withstand stress and strain, and the possible results of improper erection. Proofs were also introduced as to the nature and extent of plaintiff’s injuries.

After plaintiff had rested his case defendants moved for directed verdicts. The record indicates that said motions were based, at least in part, on the same grounds as were the previous motions that were denied without prejudice. Said motions for directed verdicts were taken under advisement by the trial judge, whereupon defendants proceeded with their proofs. Several witnesses testified, in substance, that to the north of the Atlas bleachers, on one of which plaintiff was seated, were other bleachers referred to in the record as “Leavitt bleachers,” that the trouble originated in the latter bleachers, which collapsed toward the south causing the Atlas bleachers to likewise collapse. The movement was compared by one witness to a “slow motion” picture, and by others likened to a row of dominoes falling in succession. It was also described as a “wave,” progressing toward the south.

A detailed discussion of the testimony given by each witness would serve no useful purpose. It was the theory and claim of the defendant school district that the collapse of the bleacher on which plaintiff was seated, and his consequent injuries, resulted directly from the failure of the Leavitt bleachers. Testimony was further introduced that the people on the bleachers, particularly on the Leavitt bleachers, started a rhythmic moving or swaying in keeping with calisthenics in which the players on one of the football teams were engaged, and that this movement resulted in the collapse of said bleachers.

In submitting the case to the jury the trial-judge carefully set forth in detail the claims of the parties with reference to the reasons for the occurrence in which plaintiff suffered his injuries. The term “proximate cause” was defined and explained. The jury was told that:

“It is the plaintiff’s claim in this case that the proximate cause of his injury was lack of ordinary care on the part of the agents of the Birmingham school district either in the erection of the Atlas bleacher on which the plaintiff was sitting or in the inspection or in both such erection and inspection. Thus, if you should find by a fair preponderance of the evidence that the bleacher on which Doctor Richards was sitting went down not because of faulty erection or inspection but because of a lateral force applied to it from the side by the falling of other adjoining bleachers which in turn were forced down by the failure of an entirely different make of bleacher, to-wit, a Leavitt bleacher, then the proximate cause of the plaintiff’s injury would not be the negligence claimed by the plaintiff in its declaration and your verdict would be one of ‘no cause for action.’ ”

At the request of defendant school district the following special question was submitted with questions, not material at this time, presented by the other defendants:

“Do you find that the proximate cause of the fall of the bleacher section in which Dr. Richards, the plaintiff, was sitting was a sideward thrust or lateral force applied thereto by a sideward movement of the adjoining bleacher sections, which sideward thrust or lateral force resulted from a sideward movement of one or more Leavitt bleacher sections at the north end of the east side of the football field?”

The jury returned a general verdict for plaintiff in the sum of $45,000 against the defendant school district, finding that the other defendants were not liable. The special question above quoted was answered in the affirmative. Thereupon defendant school district moved for judgment notwithstanding the verdict, claiming, 1st, that the answer to the special question was inconsistent with the general verdict; 2d, that the verdict in plaintiff’s favor was based on speculation and conjecture; and, 3d, that the school district of the city of Birmingham, as a gwasi-municipal corporation, was immune from liability. The trial court concluded that plaintiff had made out a prima facie case by his proofs, and that the 2d reason urged in support of the motion was not well-founded, but that the defendant district was entitled to judgment on the basis of the 1st and 3d reasons advanced, that is, inconsistency between the answer to the special question and the general verdict and immunity from liability for damages under the facts in the case. Judgment was accordingly entered in favor of the defendant district. From such judgment plaintiff has appealed.

The submission of special questions to a jury in the trial of cases of the character here involved is provided for by CL 1948, § 618.39 (Stat Ann § 27.-1019), which reads as follows:

“In all cases where an issue of facts is tried before any court of record, the court shall at the request in writing, of the counsel of either party, instruct the jury if they return a general verdict, also to find upon particular questions of facts, respecting which the issue is joined, to' be stated in writing, and shall direct a written finding thereon: Provided, such special questions shall not exceed 5 in number, and shall be each in single, short sentences, readily answered by yes or no. The special verdict, or finding, shall be filed with the clerk, and entered upon the minutes, and when any special finding of facts shall-be inconsistent with a general verdict, the former shall control the latter, and the ■court give judgment accordingly.”

The object sought to be attained by the section quoted was, stated in Mitchell v. Perkins, 334 Mich 192, 206, as follows:

“The purpose of special questions is to enable the court to learn what view the jury takes of the material issues and their ability to make correct inferences from existing facts. See Cole v. Boyd, 47 Mich 98; Durfee v. Abbott, 50 Mich 479; and Hart-ley v. A. I. Rodd Lumber Co., 282 Mich 652.”

The language of the statute is clear and specific .as to the effect to be given by an answer to a proper special question when such answer is at variance with the general verdict returned. As indicated in the above quotation from the Mitchell Case, the procedure furnishes a method by which the trial court may determine whether the verdict has been properly reached in accordance with the facts as found from the testimony. The scope of the statute was recognized in Finch v. W. R. Roach Co., 299 Mich 703, 711, in the following excerpt from the opinion:

“Counsel for appellant has not discussed what consideration, if any, should be given to the special questions submitted to the jury and the answers of the jury, thereto. These questions hereinbefore quoted were submitted to the jury by the court upon request of defendant. They were plain and unambiguous and called for findings on questions of fact which were conclusive of the real issues involved in this case. The answers, above noted, to the questions so submitted by defendant’s request, if based upon any competent evidence, are binding upon defendant and are conclusive of the issues involved in the instant case. Pajalich v. Ford Motor Co., 267 Mich 418; Wuerth v. Stivers, 273 Mich 276; Beecher v. Galvin, 71 Mich 391.”

See, also, Nantico v. Matuszak, 322 Mich 644.

Counsel for plaintiff call attention to the well-established rule that there may be more than 1 proximate cause for injuries received under circumstances analogous to those in the case at bar. However, the special question referred to the proximate cause, and the proofs introduced by the defendant school district were obviously offered in support of its claim that such cause was the failure of the Leavitt bleachers to withstand the strain placed on them, rather than any negligence on its part in the erection of the Atlas bleachers leased from the other defendants in the case. The excerpt above quoted from the charge to the jury indicates that the trial judge had defendant’s theory and claim in mind. It may be assumed that the jury recognized the positions of the parties to the case, as well as the charge of the court. It may be noted further that no objection was made to the form of the special question involved prior to its submission to the jury.

In Sedorchuk v. Weeder, 311 Mich 6, the difference in meaning between the expressions “the proximate cause” and “a proximate cause” was clearly recognized. There the trial court in submitting the case to the jury used the first phrase throughout his charge.- This was held to be error, and the judgment entered on a verdict in defendant’s favor was reversed and a new trial ordered. The distinction between the 2 forms of expression was also recognized in Elias v. Hess, 327 Mich 323.

Having made no objection to the submission of the special question here involved, counsel for plaintiff are not now in position to question the action of the court in submitting it. Clearly it was not ambiguous in form. The term “the proximate cause” is not ambiguous, and from the charge of the court it must be assumed that the jury understood its meaning. In its construction we are not at liberty to substitute the general article “a” for the definite article “the.” To do so would involve the changing of the meaning of the question.

It is contended on behalf of plaintiff that the general verdict may be reconciled with the answer to the special question on the theory that the negligence of the school district in the erection and maintenance of the Leavitt bleachers was involved in the case. It is insisted that the declaration should be construed as charging such negligence. With this contention we are unable to agree. The pleading does not in terms refer to the Leavitt bleachers nor to the conditions under which, or the manner in which, said bleachers were erected. The parties supplying the Atlas bleachers were joined as parties defendant, and plaintiff charged them with negligence in the construction of the bleachers as well as claiming negligence against the school district in the erection thereof. The averments of the 3d count of the amended declaration are particularly significant, said count being based on the contract between the copartners, doing business as the Atlas Portable Bleacher Company, and the school district, in accordance with which the Atlas bleachers were leased to the latter. There is no chance for argument with reference to the bleachers referred to in the 3d count, nor does it appear that the preceding counts, insofar as the duties of the defendants were concerned, had reference to bleachers other than those furnished by defendants Post and Stringham for the use of the other defendant.

The ease was tried on the theory of plaintiff’s amended declaration, and in the light of the issues raised by the answers thereto. The proofs offered by plaintiff, including’ the testimony of the expert, above mentioned, related to the construction and erection of the Atlas bleachers. In denying plaintiff’s allegations of negligence in the erection of said bleachers, it was not incumbent on the school district to set forth its theory as to the proximate cause of the bleacher collapse. It does not appear that any objections to the proofs introduced by defendant district were made on the ground that its answer to the amended declaration was insufficient to permit the receiving of the proofs offered because of the omission to set forth in the answer in affirmative form the theory and claim of said defendant as advanced on the trial. It may be noted further, in the consideration of the arguments advanced on behalf of plaintiff, that the record contains no proofs to support a finding, or an inference, that the lateral force exerted against the bleacher on which plaintiff was seated would not have caused it to collapse had it been erected in accordance with the details that plaintiff insists should have been observed. The trial court correctly held that under the record in the cause the answer to the special question was inconsistent with the general verdict returned, and that in accordance with the mandate of the statute such answer was controlling with reference to the entering of judgment. We are in accord with his conclusions relating to the issues presented in the case by the pleadings and the proofs.

This brings us to the question whether the defendant school district is immune from liability in the instant case because of its status as a governmental agency. The rule has been repeatedly recognized in Michigan that a municipal corporation is not liable for the negligence of its agents engaged in the performance of a purely governmental function. In the early case of City of Detroit v. Blackeby, 21 Mich 84 (4 Am Rep 450), the question involved was the liability of the city for injuries resulting from the defective condition of a crosswalk. Such liability was not expressly imposed by any statutory provision then in effect. It was held that there was no liability on the part of the municipality because of the failure of its employees to perform their duty. In writing for the Court, Chief Justice Campbell said (p 113):

“It has also been uniformly held in New York, as well as elsewhere, that public officers, whose offices are created by act of the legislature, are in no sense municipal agents, and that their neglect is not to-be regarded as the neglect of the municipality, and their misconduct is not chargeable against it unless it is authorized or ratified expressly or by implication. This doctrine has been applied to cities as well as to all other corporations.” (Citing cases.)

Justice Cooley, who dissented from the conclusion of the Court on the ground that the special legislative charter of Detroit granting to the city certain powers had imposed on it corporate duties, the violation of which might give rise to liability, acquiesced in the conclusion indicated in the opinion of the Chief Justice, saying (pp 118, 119):

“I concur fully in the doctrine that a municipal corporation or body is not liable to an individual damnified by the exercise, or the failure to exercise, a legislative authority; and I also agree that the political divisions of the State, which have duties imposed upon them by general law without their assent, are not liable to respond to individuals in damages for their neglect, unless expressly made so by statute. Upon these 2 points the authorities are generally agreed, and the result is well stated in the ■opinion of the Chief Justice.”

The doctrine of the Blackeby Case has been recognized in subsequent decisions, among which are Butler v. City of Grand Rapids, 273 Mich 674; and Royston v. City of Charlotte, 278 Mich 255. In the Butler Case it was held that the motor vehicle law of the State then in effect could not be construed as imposing liability on the city because of the negligent operation of a police cruiser, the driver of which was at the time engaged in performing a governmental function. It was declared that such liability was not imposed at common law and that the legislature had not in the motor vehicle code clearly indicated an intent to change the common-law rule. In the Royston Case the defendant city was held not liable for injuries resulting from maintaining a swing, installed in a public park in connection with •other playground equipment, in a condition unsafe for use. In these cases no proprietary function was involved.

Plaintiff in the case at bar relies on the decision in Foss v. City of Lansing, 237 Mich 633 (52 ALR 185). There the defendant city, pursuant to resolution approved by vote of the electors, established a municipal garbage collection service, a fee of $1 per annum being specified by action of the city council as a charge for the use of cans or containers. To provide a means of disposing of the garbage the city purchased land outside the corporate limits, finally establishing on the property a piggery wherein the garbage was fed to hogs that were sold when ready for marketing. While returning to the city after conveying garbage to the piggery, a truck operated by a city employee collided with plaintiff’s automobile. Tbe suit was brought on tbe ground tbat tbe driver of tbe truck was negligent, and tbat tbe city was liable therefor. It appeared in tbe case tbat defendant realized a profit which was used to reduce tbe cost of garbage disposal. Under these circumstances this Court concluded tbat tbe city might be held liable, in tbe same manner as would a private corporation. Judgment in defendant’s favor, entered on a directed verdict, was reversed and a new trial granted.

In support of tbe conclusion reached in tbe Foss Case tbe opinion rendered cited Rowland v. Kalamazoo Superintendents of Poor, 49 Mich 553, in which tbe suit was based on a claim of damages suffered by plaintiff because defendants bad wrongfully permitted tbe communication of a contagious disease to plaintiff’s bogs. Tbe alleged wrong was committed, as it was claimed, in tbe operation of a farm by tbe defendants from which some profit was realized. Tbe liability of defendants was recognized. Tbe Foss opinion also cited Ostrander v. City of Lansing, 111 Mich 693, in which tbe plaintiff was injured by tbe caving in of a sewer. Liability was claimed because of a provision of tbe charter of tbe city authorizing tbe making of an annual charge to persons whose premises were connected by private drains to tbe public sewer system. It is interesting to note tbat tbe language in the Ostrander Case was based on tbe bolding in City of Detroit v. Corey, 9 Mich 165 (80 Am Dec 78), in which was involved a provision of tbe charter of Detroit similar in nature to tbe charter provision of tbe city of Lansing, to which reference was made. In tbe Corey Case it-was said (p 184) :

“It is also to be observed tbat tbe power under which they acted, and which made tbat lawful which' would otherwise have been unlawful, was not a power given to the city for governmental purposes, or a public municipal duty imposed on the city, as to keep its streets in repair, or the like, but a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city — they belong to the city. The corporation and its corporators, the citizens, are alone interested in them — the outside public or people of the State at large have no interest in them, as they have in the streets of the city, which are public highways.”

It thus appears that in the final analysis the language in the Ostrander Case was predicated on the theory that the city of Lansing was in effect exercising not a strictly governmental function but one proprietary in character.

A similar situation existed in Hodgins v. Bay City, 156 Mich 687 (132 Am St Rep 546), likewise cited in support of the conclusion reached in the Foss Case. It was there recognized that it was within the power of the legislature to grant to municipalities the right to furnish light and water to the public generally. Plaintiff’s intestate was electrocuted by coming in contact with a wire erected and operated by defendant as a part of its system for the transmission of electric current. It was held that the city could not be held responsible insofar as wires used in the transmission of electric current to the public lighting system was concerned, but that it would be liable for negligence in the maintenance of wires transmitting current for sale to purchasers. Here again the proprietary function was recognized, the Court referring to the Ostrander Case, supra, in such manner as to indicate that the decision there was based on the fact that in the construction of the sewer in question the city was exercising “its local governmental ¡functions.”

It is of interest to note the comment made by this Court in Johnson v. Ontonagon County Road Commissioners, 253 Mich 465, with reference to the Foss Case and the prior decisions cited therein. In the Johnson Case plaintiff sought to recover damages for injuries sustained as a result of being struck by a snowplow operated by- an employee of defendant board on trunk line M-26 in Ontonagon county. The work was being done by defendant under contract with the State highway commissioner. Said contract provided for payments determined on a cost-plus basis, and plaintiff in the case insisted that because some incidental profit was realized, or might have been realized, from the snow removal operation, defendant should be held liable under the apparent theory of Foss v. City of Lansing, supra. In rejecting this claim, it was said (pp 471, 472):

“On this phase of the case it may also be noted that 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. Curran v. City of Boston, 151 Mass 505 (24 NE 781, 8 LRA 243, 21 Am St Rep 465); Bolster v. City of Lawrence, 225 Mass 387 (114 NE 722, LRA1917B, 1285); Bell v. City of Cincinnati, 80 Ohio St 1 (88 NE 128, 23 LRA NS 910). On the other hand, a municipality may be held to respond in damages for the negligent act of its agent or employee incident to a voluntary activity undertaken for its own profit and commercial in character. Bolster v. City of Lawrence, supra. In Gunther v. Board of Road Commissioners of Cheboygan County, 225 Mich 619, 621, this Court said:

“ ‘The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.’ (Bolster v. City of Lawrence, supra.)

“~We find nothing in this record indicating that defendant was engaged in an enterprise which inured especially to. its own corporate benefit. Instead, all of its activities had to do with the construction or maintenance of the public highways, which is the performance of a public duty. In the cases relied upon by plaintiff a very different situation is presented. In Rowland v. Kalamazoo Superintendents of Poor, 49 Mich 553, the defendant county superintendents of the poor were engaged in farming; and in the Foss Case, defendant was engaged in buying, fattening, and selling hogs. In Ostrander v. City of Lansing, 111 Mich 693; and Hodgins v. Bay City, 156 Mich 687 (132 Am St Rep 546), the defendants were engaged in matters relating to local government, and at least in the latter case derived an income therefrom. There are other cognate cases which are readily distinguishable in like manner. We are mindful that plaintiff here asserts that defendant conducted a garage where its road machinery was repaired; but this activity was also confined solely to its use in connection with the public work.”

It is significant to note that the opinion in the Johnson Case was signed by all members of the Court, 4 of whom had also signed the opinion in the Foss Case. Particularly significant is the reference to the Foss Case as one involving the “buying, fattening, and selling hogs,” and to the Rowland Case as one involving a farming operation. Such references suggest that in each ease there was added to a function strictly governmental in character an additional operation that was essentially proprietary. With particular reference to the Foss Case it may be said that the city of Lansing, insofar as the collection and removal of garbage from within the city was concerned, was performing a public duty, in other words, exercising a governmental function, but that in the operation of the piggery it was, in effect, operating in a proprietary character in the same manner as a private corporation might have acted. The decisions therein relied on, as well as certain statements in the opinion, support such theory, and the references thereto in the Johnson Case are in accord. That the functions involved in the Ostrander and Ilodgins Cases were of such character is, we think, scarcely open to question. It may be noted also that the prevailing opinion in Matthews v. City of Detroit, 291 Mich 161, rested on the basis suggested. There the defendant was held liable for negligence of its employee in the operation of a miniature train used in connection with a zoological park. A small fare was charged visitors for riding on the train. In affirming, by an equally divided Court, a judgment for plaintiff, it was said (pp 167, 168):

“It is our conclusion that while the city of Detroit was maintaining the zoological park in its purely governmental capacity, nevertheless in its operation of the miniature railroad, with a resultant profit therefrom, it was exercising a proprietary function; and was liable for negligence arising from such operation.”

School districts organized under the statutes of this State are created for the specific governmental purpose of carrying out the constitutional powers and duties vested in the State legislature with reference to education and the maintenance of common schools and institutions of higher learning. In Daniels v. Board of Education, 191 Mich 339 (LRA1916F, 468), plaintiff, a boy approximately 8 years of age, was injured as the result of falling in a school building from a stairway claimed to have been improperly safeguarded for use by children. A demurrer to the declaration in the case was sustained and on appeal this Court affirmed the action of the trial court, commenting in its opinon on the status of the defendant school district in particular and other districts of the State in general. It was there said, in part (pp 346, 347) :

“We find nothing in this act enlarging the powers of the board beyond that of a pure governmental agency created and restricted in its authority exclusively to the public purpose of education, universally recognized as a distinctive governmental function. If it were a municipal corporation proper, its functions would be both governmental in administering delegated powers of the State and, to a larger extent, municipal, or to govern, manage, and regulate local affairs within the limits of the city, village, or district incorporated, the latter frequently including business activities for profit in operating public utilities in the interest and for the well-being of the community. Not only is no authority given to the school board to exercise municipal functions, but its limited powers are exclusively restricted to purposes of education. Although invested with certain corporate characteristics to more efficiently serve the purpose for which they are created, school districts are not municipalities, nor public corporations in the full sense, but because of their very restricted powers are distinguished and recognized as quasi corporations. That a district is organized under a local act, that the school property of the district is held in its name, and that it may sue or be sued does not enlarge it from a quasi corporation. Attorney General, ex rel. Kies, v. Lowrey, 131 Mich 639; Whitehead v. Board of Education of Detroit, 139 Mich 490.”

The reasons supporting the decision in Daszkiewicz v. Detroit Board of Education, 301 Mich 212, support the conclusion of the trial judge in the case at bar. There the administrator of the estate of a young man, who had been a student in the college of medicine operated by defendant in connection with Wayne University, sued to recover damages because of the death of his intestate, due, as it was alleged, to negligence on the part of defendant’s employees. At the conclusion of the testimony in the case motion for a directed verdict was made by defendant, the motion was taken under advisement, and the cause submitted to the jury. Verdict in favor of defendant was returned, and the court denied a subsequent motion for a new trial. It was the contention of the plaintiff, on appeal from the judgment entered, that the defendant in operating the public schools’ of the city of Detroit was performing an exclusively governmental function, but that in operating the medical school it was engaged as a quasi municipality in a proprietary enterprise and, therefore, liable for the negligence of its employees because of the fact that the payment of tuition for attending said school was required. This Court, however, rejected the claim, citing and quoting from Johnson v. On-tonagon County Road Commissioners, supra, and. saying, further (pp 222, 223):

“The rule is generally recognized that a govern-mentally sponsored educational institution does not-lose its immunity from tort liability by collecting tuition fees to assist in defraying the cost of such institution. Davie v. University of California Board of Regents, 66 Cal App 693 (227 P 243); Nabell v. City of Atlanta, 33 Ga. App 545 (126 SE 905); Todd v. Curators of University of Missouri, 347 Mo 460 (147 SW2d 1063).”

This decision must be construed as a clear recognition of the proposition that a school district created under the laws of the State of Michigan is not liabte for the negligence of its employees even though income is received from tuition charged certain pupils. Obviously, the acceptance of a contrary theory would result in the diversion of moneys raised by taxation for school purposes in any instance where such tuition is charged.

In the case at bar the defendant school district maintains a physical education department as a part of its facilities, and in connection therewith fosters and promotes athletics, including football, baseball, basketball, track and other activities. This is done in accordance with regulations of the State department of education, and as a part of the educational program of the defendant school district. It is not disputed that such activities have a proper place in education and in the physical and mental development of students. It is conceded that defendant has charged admission to football and baseball games, other athletic contests apparently being open to the public generally without charge.

An exhibit introduced by defendant district on the trial of the case, without objection, which exhibit was prepared by certified public accountants, discloses that the athletic activities program of the defendant school district for the year ending June 30, 1949, resulted in a net operating loss. The football game played on November 25, 1948, must be considered as a part of the athletic activities of the school rather than as an independent contest. It thus appears that such activities of the physical education department did not, for the year in question, result in a net profit. On the record in the case it may not be claimed that such activities are carried on for the purpose of making money for the benefit of defendant school district. Rather, the entire department is operated as a part of the school facilities and in furtherance of the objectives to be attained in educational lines. It may not be said that defendant district, in allowing athletic competition with other schools, is thereby engaging in a function proprietary in nature. On the contrary, it is performing a governmental function vested in it by law.

Under facts somewhat analogous to those in the case at bar, and involving the precise question of immunity from liability claimed here, it was held in Watson v. School District of the City of Bay City, 324 Mich 1, by an evenly divided Court, that the plaintiff was not entitled to recover. Judgment entered by the trial court notwithstanding the verdict of the jury was affirmed. The reasons advanced in the prevailing opinion are applicable here. Foss v. City of Lansing, supra, is for the reasons herein-before suggested not applicable. It may be noted in passing that Scott v. University of Michigan Athletic Ass’n, 152 Mich 684 (17 LRA NS 234, 125 Am St Rep 423, 15 Ann Cas 515), was not an action against the board of regents of the University of Michigan but was, rather, against an association composed of undergraduates, alumni and businessmen. In the decision of the case, reversing judgment entered on a verdict directed for defendant by the court, it was emphasized that the association, rather than the board of regents, was a proper party to the action because it was responsible for the erection of the bleacher that collapsed and stood in a position analogous to that of proprietor of a public resort. It may be noted, also, that in Robinson v. Washtenaw Circuit Judge, 228 Mich 225, it was held that the board of regents was not liable for alleged malpractice on the part of a surgeon operating on plaintiff in the University hospital. It was held that said hospital was an adjunct to the medical department and was a State educational instrumentality maintained at public expense. We think the foregoing decisions clearly indicate the principles recognized in this State as controlling on the question under consideration.

Counsel for plaintiff have called attention to the decision of the supreme court of Arizona in Sawaya v. Tucson High School District No. 1 of Pima County, 78 Ariz 389 (281 P2d 105). There the defendant school district rented its stadium for use by other schools in conducting a football game. It was the claim of plaintiff that while attending the game he fell because of the defective condition of the stadium. It was held that in leasing the stadium and receiving compensation therefor the school district was in the exercise of a proprietary function, and that in consequence it was liable for injuries sustained as a result of negligence in the maintenance of said stadium. It may be noted that the defendant district was not promoting an educational activity of its own but was, rather, receiving rental for the use of its property. The holding, being based on the finding that the function actually exercised was proprietary in nature, is not in point in the case at bar. It is interesting to note that in the opinion the court recognized the general rule, saying (p 391):

.“We believe the great weight of.authority to be that the school district is a quasi-public corporation and acts as a governmental agency for the sole purpose of furnishing educational facilities and administering the public educational system of the State and hence is not liable for the negligence of its officers, agents, or employees. We have so held in the case of School District No. 48 of Maricopa County v. Rivera, 30 Ariz 1 (243 P 609, 45 ALR 762). The case of Bang v. Independent School District No. 27 of St. Louis County, 177 Minn 454 (225 NW 449), cites cases from many jurisdictions adhering to this view.”

Plaintiff also cites Harllee v. City of Gulfport (CCA), 120 F2d 41, in which it was.held that under pertinent provisions of the Mississippi code of 1930 the duty rested on defendant city to maintain jurisdiction over its public parks and playgrounds and to exercise reasonable care to make them safe for public resort. Plaintiff was injured because of defective equipment belonging to the city. Obviously,, the decision must be regarded either as based on provisions of the State statute, construed as imposing duties on the city, or as in direct conflict with decisions of this Court, above cited. In either event, it may not be regarded as authority for holding the defendant school district liable in the case at bar.

Appellant further claims that the trial court was in error in excluding certain testimony offered by the plaintiff on the trial. We have examined the record and have concluded that no error prejudicial to' plaintiff was committed in the respects to which attention is directed. Had the testimony offered been received, it does not appear that the result reached, so far as the granting of the motion for judgment notwithstanding the verdict is concerned, could have been in any way affected.

Judgment affirmed.

Dethmers, C. J., and Kelly, J., concurred with Carr, J.