Stewart v. Michigan Bell Tel. Co.

• Decision Date: 23 March 1972
• Docket Number: No. 1,Docket No. 11158,1
• Citation: 39 Mich.App. 360,197 N.W.2d 465
• Parties: Alfred William STEWART, Sr., et al., Plaintiffs-Appellants, v. MICHIGAN BELL TELEPHONE CO., a Michigan corporation, George A. Odien, Inc., a Michigan corporation, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 465

197 N.W.2d 465

39 Mich.App. 360

Alfred William STEWART, Sr., et al., Plaintiffs-Appellants, v. MICHIGAN BELL TELEPHONE CO., a Michigan corporation, George

A. Odien, Inc., a Michigan corporation, jointly

and severally, Defendants-Appellees.

Docket No. 11158.

Court of Appeals of Michigan, Division No. 1.

March 23, 1972.

Released for Publication May 25, 1972.

Seymour Berger, Detroit, for plaintiffs-appellants.

Mary M. Conrad, Detroit, for Bell.

Jack D. Rowe, Detroit, for Odien.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

HOLBROOK, Judge.

Plaintiffs appeal from an order granting accelerated judgment of no cause of action in favor of defendants, and dismissing plaintiffs' action due to the running of the statute of limitations. The stipulated concise statement of facts certified by the trial judge states as follows:

'1. This law suit was commenced on June 1, 1970, and concerned an occurrence sounding in tort which occurred on December 19, 1966.

'2. On July 17, 1970, the Michigan Bell Telephone Company filed a Motion for Accelerated Judgment contending that the plaintiffs' cause of action was barred by the Statute of Limitations, C.L. '48, Section 600.5805, M.S.A., Section 27A.5805, which provides a three-year Statute of Limitations in actions such as the one the plaintiffs commenced.

'3. The defendant, George A. Odien, Inc., filed a general answer but also included in its answer a motion for accelerated judgment based on the three year Statute of Limitations provided in M.S.A. 27A.5805.

'4. That oral argument was had on the motions in this case but no transcript was taken by the court reporter.

'5. That the motion for accelerated judgment based on the Statute of Limitations was granted.

'6. That attached hereto and made a part hereof are the pleadings, motions and briefs which were filed in this case and which make up the entire record in this matter as follows:

'a. Complaint.

'b. Motion for accelerated judgment filed on behalf of Michigan Bell Telephone Company.

'c. Answer of George A. Odien, Inc., which includes a motion for accelerated judgment.

'd. The plaintiffs' answer to motion for accelerated judgment.

'e. Plaintiffs' brief in support of plaintiffs' answer to defendants' motion for accelerated judgment.

'f. The brief filed on behalf of Michigan Bell Telephone Company.

'g. The order granting the defendants' motion for accelerated judgment.'

Plaintiffs asserted in their answer to the defendants' motions for accelerated judgment that a previous law suit between the same parties and based upon the same facts was commenced on March 13, 1968, in the Macomb County Circuit Court; and that all the parties were subject to the jurisdiction of that court, defendant Michigan Bell Telephone Company answering plaintiffs' complaint on April 24, 1968, and defendant George A. Odien, Inc., answering on April 23, 1968. The said cause of action was dismissed on December 19, 1968, without prejudice.

It is plaintiffs' position that M.C.L.A. § 600.5856; M.S.A. § 27A.5856 ¹ provides that the statute of limitations is tolled for the period of time that the Macomb County Circuit Court had jurisdiction over the parties or for the period of 7 months, 25 days. In the committee comment explaining the statute, M.C.L.A. § 600.5856, it is stated:

'In the event of the dismissal, on some ground other than on the merits (as for example--lack of jurisdiction over the subject matter) of an action in which jurisdiction over the defendant is acquired, the period of time from the time of service or the acquisition of jurisdiction over the defendant until dismissal will not count as a part of the time of limitation, for during such time the statute has been tolled. Subsections (1) and (2).'

Defendants do not contest the fact that the dismissal order in the Macomb County Circuit Court case was without prejudice. Defendant Michigan Bell Telephone Company in its brief filed with the trial court claimed that the reason why the Macomb action was dismissed was based on the failure of plaintiffs to answer interrogatories submitted to them which constituted a lack of diligence in prosecuting the action.

Plaintiffs assert that this issue was not properly raised before the trial court, and according to the record before us, we agree. A record of the oral argument before the trial court on the motion for accelerated judgment was not made, and therefore, is unavailable. Nor is there any indication in the record that the trial court relied on this aspect of the claimed facts as a basis for granting the accelerated judgment. Plaintiffs further assert in their brief that had the issue been joined on the motion for accelerated judgment, the plaintiffs could have shown 'conclusively that the reason that they did not answer the interrogatories in the first instance is that three of the plaintiffs were servicemen and after their discharge from the hospital, they scattered to various parts of the world to fulfill their military obligations to the United States of America.'

The only question presented on this appeal is whether under the facts in this case the statute of limitations was tolled for the period of time that the Macomb County Circuit Court had jurisdiction over the subject matter and the parties to this action.

We turn to the latest pronouncement by the Supreme Court on the subject tolling statute contained in the case of Buscaino v. Rhodes, 385 Mich. 474, 481--482, 483, 189 N.W.2d 202, 205--206 (1971), as follows:

'First, GCR (1963,) 101 means that an action is commenced by the filing of a complaint. It has that meaning in the context of the statutes of limitations, as well as every other context.

'Second, M.C.L.A. § 600.5856 (Stat.Ann.1962 Rev. § 27A.5856) has nothing to do with when an action is commenced. It has to do with when statutes of limitations are tolled.

"To toll the statute of limitations means to show facts which remove its bar of the action.' Black's Law Dictionary (4th ed), p. 1658.

'Since there can be no question of 'removing' the bar of the statute of limitations unless and until, in the absence of tolling the statute would have barred the action, there can be no issue of 'tolling' in any case where the action is commenced within the statutory period of limitation.

'It is only when the action is not commenced within the statutory period--as determined by consulting the date of claim, the date of filing the complaint and a calendar--it is only when a Prima facie bar of the statute appears, that tolling comes into play.

'What then is the meaning to be extended to M.C.L.A. § 600.5856 (Stat.Ann.1962 Rev. § 27A.5856)? We find that C.L.1948, § 609.19 (Stat.Ann. § 27.611) was repealed by the adoption of the Revised Judicature Act. That statute provided:

"If, in any action, duly commenced within the time limited in this chapter, and allowed therefor, the writ or declaration shall fail of a sufficient service or return, by any unavoidable accident, or by any default or neglect of the officer to whom it is committed, or if the writ be abated or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if after a verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause, at any time within 1 year after the abatement or other determination of the original suit, or after the reversal of the judgment therein; and if the cause of action does by law survive, his executor or administrator may, in case of his death, commence such new action within the said 1 year.'

'M.C.L.A. § 600.5856 (Stat.Ann.1962 Rev. § 27A.5856) merely provides a substitute for the repealed C.L.1948, § 609.19 (Stat.Ann. § 27.611). It deals only with prior lawsuits between the parties which have not adjudicated the merits of the action. This understanding of M.C.L.A. § 600.5856 (Stat.Ann.1962 Rev. § 27A.5856) conforms with the scheme of the five preceding sections of the Revised Judicature Act, all of which deal with extension and suspension of periods of limitations.

'Even the Committee Comment recognizes this function of M.C.L.A. § 600.5856 (Stat.Ann.1962 Rev. § 27A.5856). See 34 M.C.L.A. p. 945 and Vol. 23 Stat.Ann., p. 136. The Committee Comment reads:

"In the event of the dismissal, on some ground other than on the merits (as for example--lack of jurisdiction over the subject matter) of an action in which jurisdiction over the defendant is acquired, the period of time from the time of service or the acquisition of jurisdiction over the defendant until dismissal will not count as a part of the time of limitation, for during such time the statute has been tolled. Subsections (1) and (2).'

'The purpose of the statute of limitations was well stated by Justice Campbell in Shadock v. The Alpine Plank-Road Co. (1889), 79 Mich. 7, 13, 44 N.W. 158, 159:

"The whole reason for statutes of limitation is found in the danger of losing testimony, and of finding difficulty in getting at precise facts.'

See, also, Bay State Milling Co. v. Izak (1945), 310 Mich. 601, 17 N.W.2d 769.'

The issue of tolling the statute of limitations is present in the instant case because 'in the absence of tolling the statute would have barred the action.'

In order to properly consider the issue, we must ascertain the...