(dissenting). History would tell us-that the doctrine, “The king can do no wrong,” died at Bunnymede in 1215. Yet in the court which tried this case the legal ghost of that doctrine strode forth and struck down a jury award of damages to an Oakland county dentist seriously injured at a Thanksgiving Day football game by the collapse of *515negligently-erected bleachers. Basing his opinion largely on an immunity derived from that once held by the absolute sovereign, Justice Carr would likewise hold that this school district cannot be sued for this wrong. And he holds this even though the tort was committed in the conduct of a revenue-producing activity and the injured person was an invited, admission paying, innocent spectator.
His opinion, if adopted, would, to some degree, extend the influence of a doctrine which has been whittled down in our courts and legislative halls in recent decades. We cannot concur with turning the clock back from such progress as has already been made toward allowing damages for governmental wrongs.
The real question which this case raises is: When in the discharge of a governmental duty the agents of some governmental unit commit an act which injures or damages an individual, which act would occasion recovery if committed by a private person or corporation, shall the damage fall entirely upon the unlucky victim, or shall it rather be borne by all citizens of the governmental unit concerned through judgment or tax-paid insurance premiums?
The land which gave this doctrine birth has long since abandoned it and adopted the latter of these alternatives. For generations in English courts, actions founded upon negligence have been allowed against municipalities and school districts. Lyme Regis v. Henley (1834), 2 Clark & F 331 (6 Eng Rep 1180, 1 Eng Rep Cas 601); Shrimpton v. Hertfordshire County Council (1911), 104 Law Times Rep 145 (2 NCCA 238); Ching v. Surrey County Council, [1910] 1 KB 736 (2 NCCA 229);Morris v. Carnarvon County Council, [1910] 1 KB 840 (2 NCCA 234); Smith v. Martin and the Corporation of Kingston-Upon-Hull, [1911] 2 KB 775 (2 NCCA 215).
*516Certain of the States of the United States have likewise followed this later English precedent by marked deviation from the rule of governmental immunity as it applies to municipalities and schools.
California, by statute, now allows tort actions generally. California Government Code (Deering’s 1951), §§ 53050 et seq., and 16040 et seq.-, California Education Code (Deering’s 1952), §§ 1007 and 1008. Rather more limited liability has also been established by statute in New York, Washington and Alabama, apparently without the disastrous results which some defenders of governmental immunity have predicted. Lloyd, Municipal Tort Liability in New York, 23 NYU Law Quarterly 278; Roseniield, Governmental Immunity from Liability for Tort in School Accidents, 5 Legal Notes on Local Government, 358 (1939-1940).
One State, Tennessee, has undertaken judicial amelioration of the immunity doctrine to the limited extent of insurance coverage. Marion County v. Cantrell, 166 Tenn 358 (61 SW2d 477); Rogers v. Butler, 170 Tenn 125 (92 SW2d 414).
There is no doubt, however, that the majority of the courts in the 48 States of the United States adhere at present to the basic proposition that the State and its political subdivisions are immune from damage actions arising from tort claims in the absence of ameliorative legislation or proof of proprietary function. 38 Am Jur, Municipal Corporations, § 572, and 18 McQuillin, Law of Municipal Corporations (3d ed), § 53.05 and cases cited therein.
Some brave and persuasive voices have been raised from the bench to urge outright judicial abandonment of the ancient judge-made rule. Justice Wolfe put the case for these dissenters thus (Bingham v. Board of Education of Ogden City, 118 Utah 582, 593, 594, 598-600 [223 P2d 432]:
*517“I dissent.
“The court’s opinion states:
“ ‘While law writers, editors and judges have criticized and disapproved the foregoing doctrine of governmental immunity as illogical and unjust, the weight of precedent of decided eases supports the general rule and we prefer not to disregard a principle so well established without statutory authority. We, therefore, adopt the rule of the majority and hold that school boards cannot be held liable for ordinary negligent acts.’
“I prefer to regard said principle for the purpose of overruling it. I would not wait for the dim distant future in never-never land when the legislature-may act. During my 6 years on the district bench and 16 years on this bench, the principle of sovereign immunity and its cousin, nonliability of charitable institutions, specifically of hospitals, has come before this court at various times. We, as well as other courts of last resort, in various jurisdictions have-had to face this problem of the principle of nonlia-ability of the State and of municipal and quasi-municipal corporations which are said to have taken on the cloak of sovereignty because of their exercise-of governmental functions which, it is claimed, insulates them from the doctrine of respondeat superior. We have recognized that the State, which permits an action for damages against its citizens for injuries inflicted by their torts and the torts of their servants committed in the course of or in pursuance of the master’s business, should not shield itself behind the immoral and indefensible doctrine that ‘the-king (sovereign) can do no wrong;’ that neither should the sovereign take refuge in the doctrine that its own agencies, the courts, must not be allowed to-render judgment against their creator. * * *
“Having in the case of hospitals found the rule of immunity not fitting for the conditions of today, we should by the same token hold the rule of sovereign, immunity not applicable for the conditions of today.. It is outmoded and does not fit those conditions.
*518“Society has developed systems whereby risks may be pooled and distributed. ' In consequence, I think the fear that I expressed in the Niblock Case [Niblock v. Salt Lake City], 100 Utah 573, 583 (111 P2d 800, 804) that ‘the State should be free from the vexatious suits based on fictitious grounds which might spring into abundance were the immunity removed’ did not take into account that the risk might be insured. Doubtless, there will be fictitious or unworthy suits and doubtless some of them will be successful. That is one of the penalties we pay for democracy and justice, because justice must be administered by human beings. But greatly outweighing this consideration is the fact that in a period of time children and adults injured by the negligence of servants of the State, or employees of the municipalities or of the school boards, will suffer the injustice of being uncompensated by a society which was too shortsighted to see that the rule of sovereign immunity was outmoded and no longer necessary.
“I admit that the legislature could and should abolish or modify the doctrine. But we must be realistic. It may he a long time indeed before the enlightened individuals in our society become sufficiently interested and aroused to the injustice of this rule of immunity as to bring that social pressure on the legislature which Mr. Justice Plolmes denominated the ‘felt necessity of the times.’ But meanwhile children, not charged in fact or law with the capacity and experience to know danger, and adults not chargeable with contributory negligence, may perish or carry throughout their lives disfigurement and impairment without hope of compensation because they were unlucky enough to have had such damages inflicted by a servant of the State or by a servant of one of its governmental arms.
“Certainly we have a duty here. There are cases where we are powerless to act because the remedy lies solely with the legislature. But in those cases where we still have control of a rule or doctrine because it was judge made and developed, we may act. *519Nonaction here and ‘passing’ the problem to the legislature is the easy way out. But I do not think it conscionable for us not to lift our hand when to do so would bring the law up to date and furnish remedies long overdue. I opine that if we affirmatively acted, there would be those who would hasten to the legislature to advocate such limitations and conditions that they thought would be needed to give the State and now exempt bodies opportunity to make timely investigation and to prevent excessive judgments against those public bodies.”
See, also, Erickson dissent in Rhoades v. School District No. 9, Roosevelt County, 115 Mont 352, 361 (142 P2d 890, 160 ALR 1) and Frank dissent in Clain v. City of Burlington, 202 F2d 532.
As has been noted, this plea for outright abandonment of governmental immunity by judicial decision has to date been little heeded.
But in many other ways in this country, too, a trend is indicated toward mitigating and curtailing the harsh effects of this doctrine.
The Federal government, through congress, has in recent years in the tort claims act largely abolished the defense as far as tort claims against the United States government are concerned. 28 USCA, § 2674; 28 USCA, § 1346(b). See Indian Towing Co. v. United States, 350 US 61 (76 S Ct 122, 100 L ed 48); Rayonier Incorporated v. United States, 352 US 315 (77 S Ct 374, 1 L ed2d 354).
In the same spirit the Michigan legislature has abolished the defense of governmental immunity for all political subdivisions of the State as well as for the State itself in relation to negligence actions pertaining to motor vehicles. CL 1948, §§ 691.151, 691.-152 (Stat Ann 1952 Eev §§ 9.1708[1], 9.1708[2]; CL 1948, § 691.141 (Stat Ann 1955 Cum Supp. § 27.3548 [41]).
*520For a still longer period of time the courts of Michigan have moved to some lesser degree in the same direction by refusing to apply the doctrine of immunity in that classification of cases where the activity concerned was of a revenue-producing character and, hence, “proprietary” in nature. Hodgins v. Bay City, 156 Mich 687 (132 Am St Rep 546); Foss v. City of Lansing, 237 Mich 633 (52 ALR 185); Matthews v. City of Detroit, 291 Mich 161.
This distinction between “proprietary” function and “governmental” function has itself been widely criticized as difficult to interpret and lacking in logic. Antieau, Tort Liability of American Municipalities, 40 Ky Law Journal 131, Tooke, Extension of Municipal Liability in Torts, 19 Va Law Rev 97. In our view, the basic lack of logic, however, lies not in the “proprietary” exception, but in the underlying rule based upon the notion that the King can do no wrong when so much of history testifies to the contrary.
The clear-cut remedy to the problem of governmental immunity undoubtedly lies with State legislation of the nature and character of that adopted within recent years by the Federal government through congress. Court action to achieve the same goal by repudiation of this long-established common-law doctrine is hampered by unnumbered precedents and the doctrine of stare decisis. It cannot come as can legislative change after ample public discussion and with full warning to those bodies upon whom liability would be thrust to take such measures of an insurance nature as they might deem desirable.
Further, in the instant case, this major question has not been adequately briefed or argued. Nor, indeed, do we believe a decision on the basic doctrine essential to our current decision except in the sense that this case will inevitably either extend or curtail governmental immunity to some degree.
*521To that degree we do not hesitate to continue in this case the established judicial movement toward curtailing this rule of protected negligence. For the present, we reiterate the existing distinction in Michigan between functions which are solely governmental and those which are also proprietary in their nature.
Much of the confusion that has come into its discussion lies in the assumption that these are mutually exclusive terms. This, we believe, is not so. All activities performed by any governmental unit within constitutionally or legislatively-assigned powers are obviously governmental. Of those governmental functions some are recognized in this distinction as being more customarily performed by private industry, less historically associated with government alone, and these, when they produce revenue or profit, have been termed “proprietary.” There is no necessity, in order to find an activity “proprietary” for. the purpose of exemption from governmental immunity, also to find that it is nongovernmental.
Thus we agree with Justice Carr that the football game which produced this current litigation was a proper governmental activity for the school district of the city of Birmingham to sponsor. Nor do we hesitate to say that when the school district of Birmingham charged admission thereto, solicited and advertised for attendance, set up temporary bleachers to accommodate larger numbers of admission-paying spectators, and collected a sum total of $5,757.55 in admissions, that it was thereby engaging in a “proprietary” function which, under the case law of this State, forestalled any claim of immunity.
It is interesting to note that from the gross admission sum recited above, the official report of expenses includes payment of $956.21 Federal tax. This follows the decision of the United States supreme court in Allen v. Regents of University System *522of Georgia, 304 US 439 (58 S Ct 980, 82 L ed 1448),, wherein the supreme court held that State college athletic contests for which admission was charged were subject to a Federal admission tax. Mr. Justice' Roberts’ opinion, in speaking of the University of' Georgia’s athletic contests, said (p 452): “The1 important fact is that the State, in order to raise' funds for public purposes, has embarked in a business having the incidents of similar enterprises-usually prosecuted for private gain.”
We can find no more apt definition of a proprietary function than the above. And the fact situation which gave rise to Justice Roberts’ comment is identical in all matters bearing on legal principles with the one with which we deal here.
We recognize that, in the event this opinion prevails, we are for the first time, in Michigan, specifically applying the “proprietary” limitation upon governmental immunity for school districts. Yet the “proprietary” limitation has been recognized frequently in Michigan as applicable under proper facts to school districts as well as to municipalities. Daniels v. Board of Education of the City of Grand Rapids, 191 Mich 339 (LRA 1916F, 468); Daszkiewicz v. Detroit Board of Education, 301 Mich 212.
In both of these above-cited cases the decision in favor of immunity for the school district was based on the fact that the school’s alleged negligent act arose from nonproprietary functions involving maintenance of the actual school building.
In Watson v. School District of the City of Bay City, 324 Mich 1, the Court divided evenly 4-4 with the result of upholding the trial judge who there (as here) granted defendant’s motion for verdict non obstante veredicto. The 2 opinions agreed, however (p 9), on the essential legal question posed here
*523“Plaintiff properly contends that the answer is •determined by the test of whether the function involved is a governmental function or a proprietary function.”
Our question in this case, then, is simply: Was the defendant school district engaged, on the date in question, in a “proprietary” function within the meaning of this doctrine? The answer lies in the facts which much more strongly favor an affirmative answer than even those in the Watson Case which evenly divided the Court:
(1) The game was on a school and national holiday — Thanksgiving, 1948;
(2) The general public was invited by paid advertisements ;
(3) The plaintiff, as well as all spectators, paid admission;
(4) The total admissions greatly exceeded the •costs of the game, leaving a profit after taxes and ■expenses of over $3,000;
(5) The accident occurred in the stands provided for the admission-paying spectators and while the players were on the field;
(6) The particular source of the injury (the temporary stands) was erected specifically for the game in' question, and obviously for the purpose of producing more revenue. The source of injury was not (as in the Watson Case) a permanent feature of the regular school premises;
(7) As to one set of stands, the school district deliberately sought to reduce the cost and increase the profit by attempting to contract its claimed immunity to the suppliers of the stands, through an agreement “to assume all responsibility that might be incurred during the use and rental of these seats.”
In our view, these facts clearly indicate that the defendant school district was engaged in a “proprie*524tary function” in the conduct of this football game and, hence, under present and settled Michigan case law is not entitled to claim the defense of governmental immunity.
As another basis for denial of relief, my Brothers Carr and Black point to the answer to a special question and say that the jury’s answer thereon was inconsistent with its general verdict.
The statute (CL 1948, § 618.39 [Stat Ann § 27.-1019]), under which special questions may be submitted, is as follows:
“In all cases where an issue of facts is tried before any court of record, the court shall at the request in writing, of the counsel of either party, instruct the jury if they return a general verdict, also to-find upon particular questions of facts, respecting-which the issue is joined, to be stated in writing, and shall direct a written finding thereon: Provided, such special questions shall not exceed 5 in number,, and shall be each in single, short sentences, readily answered by yes or no. The special verdict, or finding, shall be filed with the clerk, and entered upon the minutes, and when any special finding of facts-shall be inconsistent with a general verdict, the-former shall control the latter, and the court give-judgment accordingly.”
It will be noted that its language provides such-special questions shall not exceed 5 in number, and shall be each in single, short sentences, readily answered by “yes” or “no”; and, further, “when any special finding of facts shall be inconsistent with a general verdict, the former shall control the latter.”
Our special question was as follows:
“Do you find that the proximate cause of the fall of the bleacher section in which Dr. Richards, the plaintiff, was sitting was a sideward thrust or lateral force applied thereto by a sideward movement of the adjoining bleacher sections, which sideward. *525thrust or lateral force resulted from the sideward movement of one or more Leavitt bleacher sections at the north end of the east side of the football field?”
It may be doubted whether this wording complied with the purpose or the letter of the statute, but no objection having been made to the question below, we will not decide this issue here.
Was the affirmative answer given by the jury to the stated question inconsistent with an award of damages to plaintiff? To hold that it was requires a curious logic. Plaintiff filed his lawsuit, reciting as facts that when as an invited, paying spectator he was sitting in stands erected by defendant, they collapsed under him, due, in his assertion, to negligent erection thereof by defendant school district. Now, having been found guilty of such negligence by the general verdict of the jury, the school district seeks to avoid liability on the ground that the jury found during the course of the trial that the actual negligence which occasioned the collapse of the stands on which this spectator was sitting pertained to some other stands also erected by the same defendant and immediately abutting the stands the spectator was on. These other stands, presumably, were erected with such negligence as to fall first, and, hence, by “lateral thrust,” occasioned the collapse of the perhaps less negligently-erected stands upon which the plaintiff was seated.
In our view, it would be the gravest injustice to the plaintiff to deny him recovery in this fashion when defendant’s defense becomes, not that it was not negligent, not that its negligence did not proximately cause plaintiff’s injury, but that defendant’s negligence of a slightly different character than that which plaintiff had urged upon the court (and about which distinction only the defendant could have had knowledge) occasioned his injury.
*526The record before us discloses that plaintiff sought information in 1949 as to the supplier of the stands which resulted in his injury. Plaintiff’s exhibit #27 is a letter from the Birmingham Public Schools, signed by Superintendent Dwight B. Ireland . and addressed to plaintiff’s attorney, reciting in part:
“Prom your description I have again discussed this matter with the athletic director, and he assures me that Dr. Richards was sitting on bleachers which were rented from the Atlas Portable Bleacher Company, 2170 East Jefferson avenue, Detroit. The 2 sections of bleachers next to the reserved seats were from the Atlas Portable Bleacher Company, and there is no question but that Dr. Richards was sitting on these bleachers from the location of his seat as described in your letter.”
It developed during the trial some years later that other sections of the temporary bleachers on the same side of the field as the Atlas bleachers had been rented by the school district from the Walled Lake schools. These are referred to as the Leavitt bleachers. There was testimony from which the jury apparently found that it was these bleachers which collapsed first and by a pressure to the side occasioned the collapse of the adjacent Atlas bleacher upon which Dr. Richards was sitting.
Plaintiff sued the school district and the Atlas Bleacher Company, the only supplier of temporary stands whose name had been furnished him by the school district.
But plaintiff pleaded negligence in relation to defendant school district’s erection of all the temporary stands:
“That notwithstanding the aforesaid duties, said defendants jointly and severally, did on or about Thanksgiving Day, November 25, 1948, in the city of Birmingham, invite the public generally to attend a *527football game and provided temporary bleachers for seating accommodations to those patrons that paid the admission price and which thereby entitled the buyer of said ticket to occupy a seat provided for by said defendants; that said bleachers were inadequately, improperly, negligently and carelessly constructed and maintained by said defendants, in that, to-wit: no boards or planks were placed under the supporting uprights to prevent the stands from sinking in the ground and thereby imperiling the stability of the bleachers; that no footboards were used connecting the supporting uprights to the stand structure to prevent the bleachers from shifting; that the assembled parts of the bleachers were not secured together by proper bucks, braces and bolts to insure a solid structure; that the bleachers were not adapted to the purpose for which they were used; that proper inspection was not made for the use of the bleachers at the time the general public was invited to occupy them; and there was failure to properly maintain said bleachers to insure the safety of invited patrons occupying them; that by the failure of the defendants to fulfill their aforesaid legal duties, they erected and maintained a structure which was inherently dangerous and jeopardized the life and limb of a crowd of people invited to use them upon payment of an admission fee.”
Defendant school district denied negligence generally in its answer, but did not plead any affirmative defense pertaining to the prior collapse of the Leavitt stands.
Plaintiff offered testimony at trial from which the jury might properly have found that both the Atlas temporary bleachers and the Leavitt temporary bleachers had been erected by defendant school district with negligence which was the proximate cause of Dr. Richard’s injury.
*528Subsequent to the jury verdict for plaintiff the trial judge granted defendant’s motion for judgment notwithstanding the verdict of the jury.
We recite the evidence from a point of view favorable- to the plaintiff, when we deal with motions for directed verdicts or judgment non obstante veredicto. Canning v. Cunningham, 322 Mich 182; Miller v. Pillow, 337 Mich 262.
Plaintiff’s witness, Walter Kidle, who had had experience with the erection of bleachers, testified as follows:
“As I walked up there, as near as I could to the back of the bleachers, and up to the north end, I could look under the bleachers themselves. I noticed there wasn’t any planks. I saw that with my own eyes. I know what an A-jack is. They are the things that hold up the stringers upon which the seat boards and foot boards are placed. As I walked, I noticed that the legs of the A-frames were sinking into the ground. The game had not commenced then yet. I stayed on the east side of the field and I walked to the north end of the stand. We walked around the stand, the end of the stand, and then progressed along the front of the stand to find a seat. We found a place to sit on the bleachers. The bleacher we sat on collapsed. I do not know whether it was the same bleacher that Dr. Bichards sat on.”
Mr. George Westerby, a witness for the defendant school district, called for cross-examination by plaintiff, testified that, when he had erected the stands under the instructions of Mrs. Stringham, one of the owners of the Atlas Bleacher Company, in a previous year, he had shimmed the A-frames where the ground was low and “I always used boards where the ground was soft.” His testimony continued pertaining to inspection of the bleachers after this accident : “I saw no planks under any of the A-frames. I did not see any of those so-called 4-foot lengths of *529boards under any of tbe A-frames. Not at that time, at that particular end, nor on any other end.”
Other witnesses indicated that there was considerable variance in the level of the area in which the temporary bleachers were erected, and that the ground was soft and muddy and that no shims or planks were used underneath the A-frames of either the Atlas or Leavitt bleachers.
From the entire testimony a fair inference could have been drawn by this jury that the legs of the A-frames set on uneven and muddy ground without planks underneath them, sank into the mud under the load of spectators seated and standing on the bleachers, and thus unbalanced the distribution of weight on the A-frames so as to occasion the collapse of the bleachers.
Thus plaintiff produced evidence at the trial from which the jury could have found defendant school district negligent in the erection of both the Atlas and Leavitt bleachers, as the jury did by its general verdict.
The writer cannot read the answer to the special question as inconsistent with the general verdict. By the general verdict the jury found the school district guilty of negligence which was a proximate cause of plaintiff’s injuries. By the answer to the special question, the jury indicated that the Leavitt bleachers collapsed first, and that the Atlas bleachers toppled as a result of the thrust from the falling Leavitt bleachers. Defendant had erected both sets of bleachers, and there is no proof in the record of any other cause of collapse than defendant school district’s negligence in erection. Certainly the swaying of the football game crowd must be regarded, from this testimony, as a usual and anticipated feature of the employment of the stands.
We have frequently held the driver of car A for his proximate negligence in injuring party C when *530the facts clearly showed that A hit B and that B alone hit C. Greenwold v. Faber, 234 Mich 217; Parks v. Starks, 342 Mich 443.
Defendant refers to a domino-like action in the collapse of the stand and contends that plaintiff was seated on one of the last dominos. We find no difficulty in holding the party whose tortious act occasioned the fall of the first domino, for the injury to an innocent party hurt by the fall of the last. The act which started a chain reaction can indeed he “the proximate cause” of subsequent injury, provided negligence was such that reasonable people in contemplating it might anticipate the sort of subsequent injury which actually did occur.
It is certainly within reasonable contemplation that the collapse of improperly-erected, heavily-loaded bleachers might occasion by “lateral thrust” the similer collapse of similarly loaded, similarly improperly-erected stands immediately abutting.
We therefore hold that defendant school district of the city of Birmingham was on the date in question engaging in a “proprietary function” in the sponsoring of an athletic contest for which admission was charged, and, hence, cannot escape liability for negligent acts performed in relation to said contest on ground of governmental immunity. We hold further that the answer to special question #2 was not inconsistent with the general verdict of the jury, and that the trial judge was in error in granting defendant’s motion for judgment non obstante.
The judgment of the trial court should he reversed' and the cause remanded for the entry of judgment' upon verdict of the jury. Costs to appellant.
Smith, J., concurred with Edwards, J. Voelker, J., took no part in the decision of this; case.