Smith v. Ginther

150 N.W.2d 798, 379 Mich. 208, 1967 Mich. LEXIS 74

• Court: Michigan Supreme Court
• Decided: June 6, 1967
• Docket: Calendar 6, Docket 51,513
• Status: Published

Opinions

Adams, J.

Plaintiff was injured in an accident that occurred on June 20, 1964. Defendant Grinther, a volunteer fireman for the city of Croswell, while responding in his own car to a fire alarm, collided with a car being. driven by plaintiff’s husband. Plaintiff brought suit against Grinther and the city of Croswell. The circuit judge denied a motion by the city for summary judgment, holding that this case falls squarely within Williams v. City of Detroit, 364 Mich 231; Sherbutte v. City of Marine City, 374 Mich 48; and Myers v. Genesee County Auditor, 375 Mich 1. The Court of Appeals denied application for leave to appeal, holding the case is controlled by Sherbutte. Appeal was taken to this Court upon leave granted.

Defendant city contends that Sherbutte, decided four and one-half months after the present cause of action arose, should not be given retrospective effect, that it has the right to rely on statutory governmental immunity granted by PA 1951, No 59, as amended by PA 1963, No 83 (Stat Ann 1963 Cum Supp § 5.3376[1] et seq.), and that the decision in Sherbutte, if controlling, should be overruled.

PA 1951, No 59, was considered by Justice O’Hara in Sherbutte. He reasoned that the act was adopted to improve the lot of plaintiffs, that it did not deal with governmental immunity because at the time of enactment cities had governmental immunity, and that when cities lost governmental immunity by virtue of Williams they might then be named as defendants. Since Williams is the foundation case for decision both in Sherbutte and here, no question of retroactivity is involved.

The title of PA 1951, No 59, was changed by the addition of the underlined words in the title of PA 1963, No 83:

“An act to authorize political subdivisions of the State to indemnify a policeman or fireman for any judgment recovered against him for torts, wrongful acts or omissions while such policeman or fireman is acting within the scope of his authority or in the course of his employment; and to authorize political subdivisions to furnish legal counsel.”

No mention of governmental immunity or governmental function is made in either act. No right to sue policemen or firemen is conferred by either act. The statute as amended is permissive insofar as it pertains to political subdivisions. It permits political subdivisions under the conditions it imposes to indemnify a policeman or fireman for a judgment or to pay same. No liability is created. None is taken away.

Had the legislature intended to deal with governmental liability it had only so to state as was done in PA 1964, No 170 (MCLA § 691.1401 et seq., Stat Ann 1965 Cum Supp § 3.996[101] et seq.), the title of which commences as follows:

“An act to make uniform the liability of municipal corporations,” et cetera.

Since it must be concluded that PA 1951, No 59, and PA 1963, No 83, do not provide governmental immunity for cities and since governmental immunity as to cities was abolished prospectively by Williams, decided September 22, 1961, plaintiff has stated a cause of action against the city arising out of the accident which occurred June 20, 1964.

•'The decision of the trial judge is affirmed. The case is remanded to him for further proceedings. Costs to appellees.

T. M. Kavanagh, Souris, and O’Hara, JJ., concurred with Adams, J.