Rogers v. Kent Board of County Road Commissioners

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiff instituted this suit to recover damages because of the death of her husband, Theodore Rogers, which plaintiff claims was caused by the trespass and negligence of the defendant board of county road commissioners. Defendant filed a motion to dismiss, based on the pleadings and on the ground of governmental immunity. The lower court granted defendant's motion and dismissed the cause. Plaintiff appeals from the judgment of dismissal of her cause.

Plaintiff claims that for two winter seasons previous to the date of the fatal injury to her husband the defendant board of road commissioners had obtained a license to place a snow fence in decedent's filed parallel to the roadway past decedent's farm. Plaintiff claims in her declaration that the placing of the snow fence there was with the distinct understanding and agreement between the defendant and decedent that all of the fence together with the anchor posts should be removed by defendant at the end of each winter season, when the necessity for snow fences for that season no longer existed. Plaintiff claims that such was the arrangement for the winter season of 1943-1944, that the arrangement was renewed for the winter season of 1944-1945, and that in the spring of 1945 the defendant's agents and employees removed the snow fence but did not remove a steel anchor post which protruded from 6 to 8 inches above the ground. Plaintiff further claims that the place where the post was located was a meadow where the grass grew to a considerable height, so that the anchor post was entirely hidden, and that on July 23, 1945, after decedent's husband had mowed several swaths around the field where the snow fence had been, with his mowing machine attached to his neighbor's tractor, and without any negligence or want of proper method of operation on his part, the mowing bar struck the steel stake and as a result of the impact decedent was forcibly thrown from the seat of the mowing machine to and upon the wheels of the mowing machine and upon the ground. By reason of the accident decedent received severe injuries which caused his death on October 25, 1945.

Plaintiff bases her suit upon trespass and negligence of defendant, claiming that the accident was the result of the trespass and negligence by the defendant in leaving the stake after the license to have the snow fence in place had expired, and the rest of the snow fence had been removed.

Plaintiff claims that the suit is in reality defended by the Michigan Mutual Liability Company, which company provided insurance coverage for the defendant for 1945. Plaintiff claims that the policy of insurance required the defendant to permit the liability company to defend a suit in the name of defendant, and that the suit is in fact being so defended by the liability company and further, that one of the provisions of the insurance contract is that the insurer will refrain from interposing the defense that the insured was engaged in the performance of a governmental function at the time of the accident, unless the insured shall promptly request the company in writing to make use of such defense. Plaintiff claims that by reason of the third-party beneficiary statute, Act No. 296, Pub. Acts 1937 (Comp. Laws Supp. 1940, §§ 14063-1 — 14063-5, Stat. Ann. 1946 Cum. Supp. §§ 26.1231 — 26.1235), plaintiff is entitled to avail herself of the benefits of the undertaking on the part of the insurance company not to assert the defense of governmental immunity. Plaintiff moved the court to strike from the file defendant's motion to dismiss plaintiff's suit, and for an order requiring defendant to answer without asserting governmental immunity, which motion of the plaintiff was denied. We do not consider that the third-party beneficiary statute is of assistance to plaintiff under the circumstances of this case. The road commissioners had the right to permit interposition of the defense of governmental immunity, appeared and have seen fit to interpose that defense. There is no showing that the surety company is actually conducting the defense.

The court dismissed plaintiff's cause of action, ruling that the action was plainly an action based upon negligence, that there was no basis for any finding of trespass and that the defense of governmental immunity applied to the facts set forth in plaintiff's declaration.

Failure to remove the anchor stake upon expiration of the license to have it on defendant's land was a continuing trespass and is alleged by plaintiff to have been a proximate cause of the damage which she seeks to recover.

"SEC. 160. Failure to remove a thing placed on the land pursuant to a license or other privilege.

"A trespass, actionable under the rule stated in section 158, may be committed by the continued presence on the land of a structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon

"(a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or

"(b) pursuant to a privilege conferred on the actor irrespective of the possessor's consent, if the actor fails to remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise." 1 Restatement, Torts, p. 368.

Defendant argues that the county, as an involuntary political subdivision of the State, has a different status as to governmental immunity from that of townships, cities and villages, whose governmental immunity has been limited by statute, as for example, 1 Comp. Laws 1929, § 4229 (Stat. Ann. § 9.597) and 1 Comp. Laws 1929, § 4230 (Stat. Ann. § 9.598), concerning defective condition of highways, streets, et cetera. See, also, Act No. 264, Pub. Acts 1887 (1 Comp. Laws 1897, § 3441), and citations thereunder. In Ashley v. City of PortHuron, 35 Mich. 296, 301 (24 Am. Rep. 552), decided in 1877, Justice COOLEY nowhere discusses the effect of any statute limiting the immunity of villages and cities, as any part of the ground for the opinion of the Court rendered by him. It will be noted that in Robinson v. Township of Wyoming, 312 Mich. 14, the cause of action was not concerning any defective highway, street, bridge or culvert.

For the distinction in the liability of cities, villages and townships on the one hand and that of counties on the other, on grounds of governmental immunity, defendant cites Maffei v.Berrien County, 293 Mich. 92, and other cases. However, at the time of the accident to decedent in this case, July 23, 1945, there was still in effect Act No. 135, § 24, 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]) (though repealed as of later effect by Act No. 87, Pub. Acts 1945 [Comp. Laws Supp. 1945, § 13862-26, Stat. Ann. 1946 Cum. Supp. § 27.3548 (41) et seq.]). We should not overlook our decision in Benson v. State Hospital Commission, 316 Mich. 66, 82. The distinction favorable to the theory of nonliability of counties, as being involuntary subdivisions of the State and carrying on the functions of the State as to local affairs, based on the proposition that the State itself would be immune under like circumstances, has no applicability to the instant case, where the cause of action arose while the act of 1943 was in effect, which act waived the State's immunity in certain cases.

In view of our decisions in Ashley v. City of Port Huron,supra; Ferris v. Board of Education of Detroit, 122 Mich. 315,318; Robinson v. Township of Wyoming, supra; Benson v. StateHospital Commission, supra, we consider plaintiff to have a cause of action under her declaration.

The judgment of the court dismissing the cause of action is reversed and the cause remanded for such further proceedings as shall be found necessary. Costs to plaintiff.

CARR, C.J., and BUTZEL, BUSHNELL, SHARPE, BOYLES, and NORTH, JJ., concurred with REID, J. DETHMERS, J., concurred in the result.

ON REHEARING.