#### PENIX *v.*CITY OF ST. JOHNS.

Municipal Corporations — Baseball Park Bleachers — Governmental Function — Sovereign Immunity.

Declaration in baseball game spectator’s action against city for injuries received when bleachers collapsed at city ball park failed to state a cause of action, where there was no averment of performance of a proprietary function, there being at best only a claim against the city resulting from its employees’ negligent performance of a governmental function as to which the doctrine of sovereign immunity presently applies.

References for Points in Headnotes

39 Am Jur, Parks, Squares, and Playgrounds § 39; 52 Am Jur,

Theaters, Shows, Exhibitions, and Public Resorts §§ 49, 65, 78.

Duty and liability of owner or keeper’ of place of amusement respecting injuries to patrons from collapse of seats or part of grandstand structure. 22 ALR 648, 44 ALR 207, 53 ALR 860, 61 ALR 1296, and 98 ALR 571.

Appeal from Clinton; Cash (Pañi R.), J.

Submitted April 8, 1958.

(Docket No. 5, Calendar No. 47,474.)

Decided October 13, 1958.

Case by Betty Penix against the City of St. Johns, a municipal corporation, for personal injuries sustained when park bleachers collapsed. Motion to dismiss denied. Defendant appeals.

Reversed and remanded for dismissal.

*Timothy M. Green,*for defendant.

Dethmers, C. J.

Defendant city appeals, on leave granted, from denial of its motion to dismiss. The *260motion was based on-2 grounds: (1) that as appears from the allegations of plaintiff’s declaration timely notice of her claim was not presented to the city commission, as required by the city charter, and (2) that her declaration alleges damages resulting from the negligence of defendant’s employees in performance of *a*governmental function. Pertinent provisions of the declaration follow:

> “2. "That the defendant, the city of St. Johns, is a municipal corporation located in Clinton county, Michigan, whose' corporate authority extends over a certain municipal park within the confines of its corporate, limits. That such said city park is under the .custody and control of the city of St. Johns, and is operated by city employees.

> “3. That on or about the 24th day of July, 1955, plaintiff, while attending a softball game at said park, utilized certain bleachers situated next to the ball field. That due to a defect in erecting said bleachers, or keeping them in repair, the bleacher gave way beneath the plaintiff, causing her to fall to the ground, first striking her head against another board- in the bleachers, in her descent.

> “4. That it was the duty of the defendant to keep said bleachers in reasonable repair and reasonably safe arid fit for public use; the defendant’s employees being the persons who moved, disassemble, and erect the said bleachers, keep them in a state of repair, and inspect them.

> *“5.*That as a result of said defect, arid the defendant’s inability to keep said bleachers in a state of repair to reasonably assure the safety of the public using them, the defendant [plaintiff?] suffered a severe blow and traumatic injury to the base of her skull, iinpairment to her nervous system to an extent that, she was unable to be gainfully employed, carry on household duties as a wife and motherland was in fact, an invalid for a peribd’of several months.

> *“6:*That within 60 days thereafter, and on or about the 26th day of July,-1956, plaintiff, through her hus*261band, served due notice upon the city manager of the city of St. Johns, of -the extent of the injury and her intention to claim damages thereof,' in accordance with the ordinance and statute made and provided, and under the control and direction of the city manager of the city of St. Johns, Michigan, the defendant herein.’-’

On the first point, it is defendant’s contention that service of the notice of claim upon defendant’s city manager did not comply with the city charter requirement that the claim be presented to the city commission and that such failure is fatal to plaintiff’s suit, citing *Selden*v. *Village of St. Johns,*114 Mich 698; *Van Auken*v. *City of Adrian,*135 Mich 534; *Ridgeway*v. *City of Escanaba,*154 Mich 68; *Moulthrop*v. *City of Detroit,*218 Mich 464; *Kelley*v. *City of Flint,*251 Mich 691; *Northrup*v. *City of Jackson,*273 Mich 20; *Harrington*v. *City of Battle Creek,*288 Mich 152; *Sykes*v. *City of Battle Creek,*288 Mich 660; *Grand Trunk Western R. Co.*v. *City of Detroit,*342 Mich 537. None of these cases presented the question, before us here, whether service of the claim upon the city manager complies with the requirement of presenting it to the city commission. In *Ridgeway*v. *City of Escanaba, supra,*this Court said that substantial compliance with the requirement for service of such notice of claim is sufficient. We do not believe the language of the charter should be construed to require that the claim be handed to members of the commission individually or presented to that body while they are assembled in official meeting. The city’s charter (p 12) provides that the powers and duties of the. city manager' shall be, *inter alia,*“to have general supervision over all public improvements, works and undertakings” and “to attend all meetings of the city commission; with the right to take part in the discussions.” One might reasonably assume that a claim of the kind in question served on *262the city manager would be presented and come to the attention of the city commission. We think that this amounted to substantial compliance with the charter requirement and that plaintiff’s case ought not to fail for the reasons urged by defendant in this connection. For similar facts and a holding in accord with this view, see *Perry*v. *City of High Point,*218 NC714 (12 SE2d 275).

Nothing in plaintiff’s declaration can be construed as constituting an averment of performance of a proprietary function by defendant city out of which plaintiff’s claim for damages is alleged to arise. We think the case should have been dismissed on the ground that the averments of the declaration, construed most favorably to plaintiff, allege, at best, only a claim against the defendant city resulting from its employees’ negligent performance of a governmental function as to which the doctrine of sovereign immunity applies. *Royston*v. *City of Charlotte,*278 Mich 255; *City of Detroit*v. *Blackeby,*21 Mich 84 (4 Am Rep 450); *Butler*v. *City of Grand Rapids,*273 Mich 674; *Johnson*v. *Board of Ontonagon County Commissioners,*253 Mich 465; *Daszkiewicz*v. *Detroit Board of Education,*301 Mich 212; *Whitehead*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 (LRA1916F, 468); *Heino*v. *City of Grand Rapids,*202 Mich 363 (LRA1918F, 528); *Gunther*v. *Cheboygan County Road Commissioners,*225 Mich 619; *Tzatzken*v. *City of Detroit,*226 Mich 603; *McDonnell*v. *Brozo,*285 Mich 38.

Beversed and remanded for entry of order dismissing the case. Costs to defendant.

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

*263Edwards, J.

(concurring). The opinion filed by Chief Justice Dethmers in this case is based upon ample case precedent by which Michigan has to this point followed the doctrine of governmental immunity. I concur that this is the law, while retaining the grave doubts expressed in my dissent in *Richards*v. *Birmingham School District,*348 Mich 490, 514, as to whether or not it should continue to be. This case is, of course, distinguished from the *Richards Case*by the fact that no proprietary function question is presented here.

Smith, Black, Yoelker, and Kavanagh, JJ., concurred with Edwards, J.