Lester v. Morenci Area Schools 10

365 Mich. 537 (1962) 113 N.W.2d 778

LESTER
v.
MORENCI AREA SCHOOLS # 10.

Docket No. 90, Calendar No. 49,184.

Supreme Court of Michigan.

Decided March 15, 1962.

Yale Leland Kerby, for plaintiff.

Baker, Hammond & Baker, for defendant school district.

ADAMS, J.

Plaintiff declares that Nancy Ann Lester was severely injured while in attendance at school and while playing on the school grounds during recess time. A motion was filed to dismiss as to the Morenci Area Schools on the ground that under the doctrine of governmental immunity and the facts alleged, there was no liability on its part. The motion was granted. This appeal is taken therefrom.

Plaintiff would now raise the question as to whether or not the circuit court erred because plaintiff now contends that the defendant school district carried liability insurance and had therefore waived its governmental immunity at least to the extent of the insurance coverage. Declaration was filed on December 27, 1960. Motion to dismiss was filed January 23, 1961, heard February 6th, and decided February 23, 1961. Nowhere in the declaration is it alleged that the defendant school district carried liability insurance and therefore waived its governmental immunity.

No attempt was made to amend the plaintiff's declaration to contain such allegations. Ample opportunity was afforded by Michigan Court Rule No 26, § 1 (1945), which provides:

"Sec. 1. A plaintiff may at any time before answer is put in, or within 15 days thereafter, amend his declaration or bill of complaint, and a defendant within 15 days after his answer is put in may amend same, without leave of court and without costs."

Since the question was never before the trial court, he did not attempt to rule thereon, nor, under the state of the record before us, do we.

We need not concern ourselves with the extent to which the doctrine of governmental immunity from ordinary torts may have been altered by Williams v. City of Detroit, 364 Mich 231, decided September 22, 1961, or by McDowell v. State Highway Commissioner, 365 Mich 268, or other recent cases dealing with that doctrine. It was still in effect on February 1, 1956, when the injury in this case occurred.

The trial court did not err.

Affirmed. Costs to appellee.

KELLY, BLACK, KAVANAGH, SOURIS, and OTIS M. SMITH, JJ., concurred with ADAMS, J.

DETHMERS, C.J., and CARR, J., concurred in result.