91 N.W.2d 889 (Mich. 1958), 12, Jones v. Chambers

Docket Nº:12, .
Citation:91 N.W.2d 889, 353 Mich. 674
Opinion Judge:EDWARDS, Justice.
Party Name:Leslie JONES, Jr., Philip Wolf, Lewis C. Johnson and Glen Johnson, d/b/a Johnson Oil Company, and American Fidelity Fire Insurance Company, subrogee of Leslie Jones, Jr., Philip Wolf and Johnson Oil Company, Plaintiffs and Appellants, v. Eldon Lee CHAMBERS, Defendant and Appellee.
Attorney:[353 Mich. 675] James S. Miner, Owosso, for plaintiffs and appellants. Van Winkle & Van Winkle, Howell, Arthur Heikkinen, Howell, of counsel, for defendant and appellee.
Judge Panel:Before the Entire Bench.
Case Date:September 10, 1958
Court:Supreme Court of Michigan
 
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Page 889

91 N.W.2d 889 (Mich. 1958)

353 Mich. 674

Leslie JONES, Jr., Philip Wolf, Lewis C. Johnson and Glen

Johnson, d/b/a Johnson Oil Company, and American Fidelity

Fire Insurance Company, subrogee of Leslie Jones, Jr.,

Philip Wolf and Johnson Oil Company, Plaintiffs and Appellants,

v.

Eldon Lee CHAMBERS, Defendant and Appellee.

No. 12, .

Supreme Court of Michigan.

September 10, 1958

[353 Mich. 675] James S. Miner, Owosso, for plaintiffs and appellants.

Van Winkle & Van Winkle, Howell, Arthur Heikkinen, Howell, of counsel, for defendant and appellee.

Before the Entire Bench.

EDWARDS, Justice.

From pleadings in this record we learn this controversy started at 5:30 a. m. on December 20, 1951, when an oil truck and trailers owned by the plaintiffs (other than the insurance company) and a car owned and driven by defendant came into collision.

Page 890

The facts relevant to our instant appeal are agreed upon by the parties as follows:

[353 Mich. 676] 'December 9, 1953, Jones and Wolf, Johnson Oil Company and American Fidelity Fire Insurance Company, subrogee by a prior assignment, started suit in Shiawassee county against Chambers for $6,925.41 damage to a tractor and trailer owned by Jones, Wolf and Johnson Oil Company plus $1,750 lost net earnings to Jones and Wolf, alleging the same to have been caused by Chambers' breach of statutory duty to pass to the right and other specified negligence, alleging a want of their own negligence contributing to their own damages.

'December 24, 1953 Chambers and The Citizens' Mutual Automobile Insurance Company, his previously subrogated assignee, started suit in Isabella county against Jones, Wolf, Johnson Oil Company and Leon F. Hapner, as driver, for 'damage to person and property to the extent of $10,000,' alleging a cause of action through Hapner's breach of statutory duty to have his vehicle under control and other specified negligence, and asserting a want of Chambers' negligence contributing to Chamber's own damages.

'June 14, 1954 the Isabella cause of action was tried and judgment was subsequently entered for plaintiff therein on the jury's verdict.

'On December 28, 1955 the Shiawassee county trial court dismissed the Shiawassee cause of action on the grounds that it had been heard and decided as to all parties therein during the Isabella county trial, for reasons stated in the court's opinion.'

Thus we are asked to determine whether or not the defendants (plus their insurance company) in the later-filed but first-tried Isabella county suit can now maintain an action for damages arising out of the same accident in Shiawassee county circuit court even though judgment was rendered against them and has become final in the prior trial in which they did not cross-declare.

The right to file a cross-declaration in a tort action did not exist at common law; it was created by [353 Mich. 677] statute. Annotation, 10 A.L.R.2d 1167. The Michigan statute which we are here called upon to construe plainly makes the right to cross-declare optional with the cross-declarant:

'In any action hereafter brought in any court of the state to recover damages for any injury to person or property, wherein recovery is sought because of the alleged...

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