Baatz v. Smith

• Decision Date: 15 September 1960
• Docket Number: A,Nos. 39,s. 39
• Parties: Perlee BAZZ, Plaintiff and Appellant, v. Charles A. SMITH, Abraham J. Smith and David B. Smith, d/b/a Charles A. Smith & Co., Defendants and Appellees. Worley A. ROYSTON, Plaintiff and Appellant, v. Charles A. SMITH, Abraham J. Smith and David B. Smith, d/b/a Charles A Smith & Co., Defendants and Appellees. Jennie MIDDLETON, Plaintiff and Appellant, v. Charles A. SMITH, Abraham J. Smith and David B. Smith, d/b/a Charles A. Smith & Co., Defendants and Appellees. pril Term, 40, April Term, 41, April Term.
• Court: Michigan Supreme Court

Page 787

104 N.W.2d 787

361 Mich. 68

Perlee BAZZ, Plaintiff and Appellant, v. Charles A. SMITH, Abraham J. Smith and David B. Smith, d/b/a

Charles A. Smith & Co., Defendants and Appellees.

Worley A. ROYSTON, Plaintiff and Appellant, v. Charles A. SMITH, Abraham J. Smith and David B. Smith, d/b/a

Charles A Smith & Co., Defendants and Appellees.

Jennie MIDDLETON, Plaintiff and Appellant, v. Charles A. SMITH, Abraham J. Smith and David B. Smith, d/b/a

Charles A. Smith & Co., Defendants and Appellees.

Nos. 39, April Term, 40, April Term, 41, April Term.

Supreme Court of Michigan.

Sept. 15, 1960.

I Goodman Cohen, Detroit, for plaintiffs and appellants.

Alexander, Cholette, Buchanan, Perkins & Conklin, Detroit, for defendants and appellees Abraham J. Smith, specially, and David B. Smith d/b/a Charles A. Smith & Co.

Before the Entire Bench.

DETHMERS, Chief Justice.

Plaintiffs commenced suits against defendants, hotel keepers, in assumpsit, on June 13, 1958, for personal injuries and resultant damages sustained on April 30, 1954, while they were paying guests in defendants' hotel. Plaintiffs alleged in their declarations that another, former guest of defendants' hotel, who was a confirmed alcoholic, had been evicted therefrom, became disgruntled, harbored a grudge on that account, had threatened injury to the hotel, and on one occasion had set fire to it, all as defendants knew or should have known; and that, on the night in question, he did cause dynamite to explode in the hotel, injuring plaintiffs.

The trial court granted defendants' motions to dismiss on the ground that the actions were barred by the 3-year statute of limitations, C.L.S.1956, § 609.13, subd. 2 (Stat.Ann.1957 Cum.Supp. § 27.605, subd. 2), which reads as follows:

',2. Actions to recover damages for injuries to person or property and actions for trespass upon lands shall be brought within 3 years from the time said actions accrue, and not afterwards.'

Plaintiffs insist that the quoted statutory limitation applies only to actions sounding in tort but to those brought in assumpsit even though based on tortious acts which are claimed to constitute, as well, a breach of contract.

In Coates v. Milner Hotel, Inc., 311 Mich. 233, 18 N.W.2d 389, plaintiff brought suit, more than 3 years after her cause of action had accrued, against defendant hotel company therein, charging that, because of that defendant's negligence, while she was a paying guest in the hotel, her room had been entered by an intoxicated person who had violently assaulted her. The relevant holding in that case is well expressed in the fifth syllabus, which reads as follows:

'The three-year statute limiting the time within which an action for injuries to the person may be brought applies to all actions to recover for an injury to the person arising because of negligence whether based upon implied contract or tort (3 Comp.Laws 1929, § 13976, as amended by Act. No. 72, Pub.acts 1941).'

Plaintiff suggest that Coates should be re-evaluated and overruled. The only question is the meaning of the statutory language. It limits, in express and plain words, to 3 years, actions to recover damages for injuries to person. Such was the nature of the action in Coates. The statutory language permitted of no other holding in the case. It was right then. It still is. And so, here , whether brought in tort or assumpsit, these are actions to recover damages for injuries to person. Accordingly, the 3-year limitation applies.

Whether application of the statutory limitation, as in Coates, works an injustice or not is a policy question for legislative determination and control. Our function is to apply the statute's clear language.

New York cases cited by plaintiff are: Blessington v. McCrory Stores Corporation, 305 N.Y. 140, 111 N.E.2d 421, 37 A.L.R.2d 698; Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330; Golia v. Health Insurance Plan of Greater New York, 7 Misc.2d 919, 166 N.Y.S.2d 889. The support plaintiffs find in Golia, as cited, appears to have been pretty much dissipated upon review of that case in 6 A.D.2d 884, 177 N.Y.S.2d 550. The section of the New York statute involved differs from that of Michigan in that it expressly applies to actions for injuries 'resulting from negligence'. Civil Practice Act, § 49, subd. 6. The reasoning in them becomes involved with questions of whether the causes of action did or did not arise out of defendant's negligence. The Michigan statute presents no such question, leaving these New York cases of scant assistance to us. In accord with the Michigan view expressed in Coates are Farbach Chemical Co. v. Commercial Chemical Co., 101 Ohio App. 209, 136 N.E.2d 363, Seymour v. Union News Co., 349 Ill.App. 197, 110 N.E.2d 475, Strzelczyk v. Macki, 169 Cal.App.2d 703, 337 P.2d 846, and Katz v. Manhattan General, 2 A.D.2d 876, 156 N.Y.S.2d 302, which hold immaterial the form of action pursued. Smith v. White Tower Management Corporation, Sup., 129 N.Y.S.2d 545, and Moore v. James, 5 Utah 2d 91, 297 P.2d 221, hold that, at all events, actions such as these against an innkeeper cannot be predicated on contract liability under the theory of implied warranty.

Regardless of the discussion of the question as to whether an action is based on contract or tort in the cases from other jurisdictions, that question is not controlling under our statute.

Affirmed. Costs to defendants.

CARR, KELLY, BLACK and EDWARDS, JJ., concurred with DETHMERS, C. J.

SMITH, Justice (dissented).

Paragraph IX of plaintiff's amended declaration states as follows:

'That at time of the injuries complained of, plaintiff was a male of fifty-seven (57) years of age employed at a weekly wage of $82.50, and as a result of defendants' breach of contract sustained loss of earnings, incurred medical and hospital bills, underwent mental anguish, to plaintiff's damage in the sum of Seventy-five thousand ($75,000.00) Dollars.'

The reference to mental anguish, the pleader tells us, is made 'not for the purpose of stating a cause of action ex delicto but for the purpose of showing a breach of contract and subsequent damage necessitating medical attention and hospitalization.'

In short, plaintiff has sought to plead, and presumably will seek to prove, if allowed to go to trial, a breach of contract.

That the breach of contract resulted in personal injury does not convert it into an action for personal injury. The phrase 'actions to recover damages for injuries to person or property,' ¹ appearing in our statute, was introduced merely to replace the common law designations for actions, which were made obsolete through the adoption of the Judicature Act of 1915. ² The draftsmen of our statute, following to some extent the model of the New York Code of Civil Procedure, employed this phrase rather than the older common law designations, in limiting certain tort actions to 3 years. ³ (Indeed, the phrase is so employed in the recently proposed Revised Judicature act. ⁴ But they did not thereby effect any change in the substantive law applicable to causes of actions. The parties before us have entered into a lawful contract, according to the pleader. In return for a sum of money defendants agreed to furnish plaintiff a safe and tranquil lodging. While in this relationship thus voluntarily assumed (still following the declaration), the contract was breached by defendants. As a result of the breach, plaintiff had his rest disturbed, lost wages, and incurred bills.

Now, if these parties had entered into no contract whatever, plaintiff could have sued defendants for damages for personal injuries arising out of the bomb explosion, provided he could show duty and breach. He has this right regardless of contract. But just how defendants are able to convert the cause of action against it, based on the contractual relationship, and arising out of its breach, into a cause of action plaintiff would have had if the parties had been complete strangers, I am completely unable to follow. This is county-fair law: Now you see it, now you don't.

The problem before us is one of the most baffling of the current legal problems. Prosser treats it in his lecture on the Borderland of Tort and Contract, ⁵ pointing out that the cases are a riot of confusions, the result often depending upon the particular issue before the court (change of venue, limitations, joinder of parties, assignability, etc.). He observes ⁶ that----

'there are hundreds of cases in which the court has construed the plaintiff's complaint, and on the basis of the presence or absence of some particular allegation, or the emphasis found to have been given to it, have held that contract or tort is pleaded. There is probably no more barren and unrewarding group of decisions to be found in the law. They turn almost entirely upon the details of language, which of course vary from case to case * * *.'

The criticism is well justified. The cases are, indeed, sterile, doctrinaire, and formalistic, a maze of tort, contract, and quasicontract, the more complicated because of the historical development of the forms of action. See Hart v. Ludwig, 347 Mich. 559, 79 N.W.2d 895. In this situation, we must plant decision on something other than sonorous legalisms or textual abstractions, if we are ever to progress.

I am constrained to reject Coates v. Milner Hotels, Inc., 311 Mich. 233, 18 N.W.2d 389, 391, as authority on the matter before us. Reference to the briefs will disclose that neither party to that case cited any authority in support of the respective positions taken; our Court, in ruling, did so without discussion of applicable principles, or citation of case authority. So far as the text cited in the opinion is concerned I have no quarrel with its generalities. But it is based upon an assumption here challenged, namely, that we are ruling upon an action seeking 'damages caused by negligence,' its 'real purpose' being to recover 'for an...