Plaintiff's decedent was killed by the negligent operation of a truck owned by the board of county road commissioners of Manistee county while being operated by William Potter, an employee of the road commission. Judgment was taken by default against defendants William Potter and the estate of Clyde Jones, deceased. The court below dismissed the suit as against defendant I. H. Gingrich Sons, Inc. No appeal has been taken as to the above-named defendants and the case now stands against Manistee county and the board of county road commissioners. The case was tried before a jury. At the close of plaintiff's proofs, and again after both parties had rested their cases, defendants Manistee county and board of county road commissioners moved for directed verdict on the ground that they were engaged in the exercise of a governmental function at the time of the accident and, therefore, not liable for the negligence of the employee. These motions were denied. The jury returned a verdict for plaintiff, whereupon the same defendants moved for judgment non obstante veredicto on the same grounds. This motion was granted, and plaintiff appeals from the judgment entered thereon.
Two questions are relied upon by plaintiff, for reversal. The first is, that defendants could not raise the question of governmental immunity by these motions, not having pleaded the same as an *Page 497 affirmative defense. The record does not show that plaintiff raised this question at any stage of the proceedings in the court below. Plaintiff argued both motions for directed verdict as well as the motion for judgment non obstante veredicto without raising the question now relied upon, so far as this record discloses. Plaintiff at no time during the trial claimed surprise or asked for a continuance. The defendants' answers, by inference at least, put in issue the defense of governmental immunity. It would have been in order for defendants to ask for leave to amend if the issue had been raised. No reversible error was committed by the court in considering the motions.
Plaintiff's second ground for reversal is that the court erred in holding the defendants immune from liability for the admitted negligence of the employee, by reason of the truck being engaged in a governmental function at the time of the accident. The facts material to that issue are as follows: Defendant road commission purchased a truck from I. H. Gingrich Sons, Inc., in Grand Rapids, paid for the same, and accepted delivery of the same in Grand Rapids. The truck was being driven from Grand Rapids to Manistee by Potter, an employee of the road commission, when the accident occurred. While passing through Mason county, plaintiff's decedent was killed by the truck due to the negligent operation of the driver. It is conceded that the Manistee county road commission was not engaged in the construction, maintenance or repair of any highway in Mason county at that time. The truck was then owned by the county road commission and being driven over a highway in Mason county by an employee of the commission, on its way to Manistee county for use in Manistee county. The truck was *Page 498 carrying some minor parts or repairs from Grand Rapids for the use of the commission.
The commission had the right to purchase the truck. 1 Comp. Laws 1929, § 3985 (Stat. Ann. § 9.110).* It was purchased for governmental purposes. There would seem to be no justification in reason, and no authority has been cited, for holding that the road commission could not take title to the truck in Grand Rapids. It is common knowledge that highways are now maintained and repaired largely by the use of motor equipment. The use of the truck in Manistee county was necessary for the county road commission to perform its statutory duties. If the road commission could become the owner of the truck at some point outside Manistee county, it obviously must follow that the commission had the right to move the equipment to its home county. In so doing, was the road commission engaged solely in the performance of a governmental function? If so, the law is well settled that defendants are not liable for the negligent acts of employees unless expressly made so by statute. Johnson v. Board of County Road Commissioners, 253 Mich. 465; Royston v. City of Charlotte, 278 Mich. 255; McDonell v.Brozo, 285 Mich. 38; Maffei v. Berrien County, 293 Mich. 92.
Manistee county is a public corporation, with such powers and immunities as shall be established by law (Const. 1908, art. 8, § 1), and the immunities of counties remain as at the common law unless changed by statute (1 Comp. Laws 1929, § 1100 [Stat. Ann. § 5.282]). Boards of county road commissioners are also public corporations (1 Comp. Laws 1929, § 3984 [Stat. Ann. § 9.109]), and they *Page 499 are not liable for torts committed by employees while acting for the commission in a governmental function. Brink v. City ofGrand Rapids, 144 Mich. 472.
While plaintiff did not declare expressly upon any claimed statutory liability of defendants, plaintiff's brief indicates that he relies upon 1 Comp. Laws 1929, § 4724 (Stat. Ann. § 9.1592). This is a part of the uniform motor vehicle act regulating the operation of vehicles on highways (Act No. 318, Pub. Acts 1927, as amended [1 Comp. Laws 1929, § 4693 et seq. (Stat. Ann. § 9.1561 et seq.)]). The section relied upon by plaintiff is as follows:
"The provisions of this act applicable to the drivers of vehicles upon the highways, shall apply to the drivers of all vehicles owned or operated by this State or any county, city, town, district or any other political subdivision of the State subject to such specific exceptions as are set forth in this act. The provisions of this act shall not apply to persons, teams, motor vehicles and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work." I Comp. Laws 1929, § 4724.
We should say at the outset, that many of the cases cited by plaintiff do not apply. We have had frequent occasion to hold that a municipal corporation cannot rely on governmental immunity as a defense when engaged in operations of a proprietary nature, where profit results therefrom. Instances of such situations are: (bus line) Borski v. City of Wakefield,239 Mich. 656; (garbage collection) Foss v. City of Lansing,237 Mich. 633 (52 A.L.R. 185); (electric energy) Hodgins v.City of Bay City, 156 Mich. 687 (132 Am. St. Rep. 546). It cannot be successfully claimed that the moving of the *Page 500 truck from Grand Rapids to Manistee county comes within these exceptions to the general rule of governmental immunity.
The statute relied upon by plaintiff in express terms imposes a liability upon drivers of motor vehicles owned or operated by the State or any county, city, town, district or any other political subdivision of the State subject to the specific exceptions set forth therein. In the case at bar, judgment has been entered against the driver of the motor vehicle. Plaintiff would have us construe the statute so as to impose a liability on the county itself (or its board of county road commissioners). The statute does not do so in terms of certainty, nor does such intent clearly appear. The principles announced by this court in Gunther v. County RoadCommissioners, 225 Mich. 619, apply to the instant situation. Moving the truck from Grand Rapids to Manistee county was a governmental function and defendants are not liable for the negligent operation of the truck by the employee while so engaged. The legislature will be presumed not to have made a change in the common-law rule of governmental immunity by the enactment of a statute relating to the operation of vehicles on the highway unless the intent to do so clearly appears, and it must do so in terms of certainty before such results will follow. This is well stated in the syllabi in Butler v. City ofGrand Rapids, 273 Mich. 674, as follows:
"At common law a city is not liable for the torts of its agents while acting for it in a governmental function.
"When the legislature intends to change a common-law rule of law, it must do so in terms of certainty and unless its intent to do so clearly appears it will be presumed not to have made a change *Page 501 by enactment of a statute on the same subject (Const. 1908, sched. § 1).
"General statutes are not to be construed to include, to its hurt, the sovereign.
"Since a city is not liable at common law for torts committed in the operation of its automobiles used in the performance of governmental functions, a statute is required to impose such liability."
If such results in hardship, the remedy is by legislation to change the law of liability of a municipal corporation from immunity in exercise of governmental functions.
Judgment should be affirmed. No costs should be awarded as this cause involves a matter of public interest in the construction of a statute.
* Amended, Act No. 292, Pub. Acts 1937 (Stat. Ann. 1940 Cum. Supp. § 9.110). — REPORTER.