Borski v. City of Wakefield

• Decision Date: 29 July 1927
• Docket Number: No. 134.,134.
• Citation: 239 Mich. 656,215 N.W. 19
• Parties: BORSKI v. CITY OF WAKEFIELD.
• Court: Michigan Supreme Court

239 Mich. 656

215 N.W. 19

BORSKI

v.CITY OF WAKEFIELD.

No. 134.

Supreme Court of Michigan.

July 29, 1927.

Error to Circuit Court, Gogebic County; George O. Driscoll, Judge.

Action by Frank Borski against the City of Wakefield. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench.Harry K. Bay, of Ironwood (Berg & Clancey, of Ishpeming, of counsel), for appellant.

Jones & Patek, of Ironwood, for appellee.

McDONALD, J.

The plaintiff received a verdict and judgment in the circuit court for the county of Gogebic, Mich., against the defendant, in the sum of $15,254.32, on account of personal injuries received while riding as a passenger for hire in a bus owned and operated by the defendant.

The defendant is a municipal corporation, and at the time of the accident was operating a bus between the city and the Plymouth mine, where the plaintiff was employed as a foreman of the drill and blast gang. Early in the morning of February 5, 1924, the plaintiff became a passenger on the bus to be conveyed to his work at the mine. The highway over which the bus was compelled to travel was slippery with ice, and contained ruts that made the way dangerous for travel. It is charged that the driver of the bus did not operate it carefully, considering the dangerous condition of the road; that it skidded and seesawed from one side of the highway to the other; that he did not slacken his speed, but drove excessively and carelessly under the circumstances, as the result of which the bus left the road and tipped over in a ditch, in consequence of which negligence the plaintiff was seriously and permanently injured.

The defendant denied the negligence charged, and insisted in its defense that the plaintiff could not maintain his action, because he did not file a notice of his claim against the city, as required by the provisions of its charter.

At the close of the plaintiff's case and again when all of the proofs were concluded, the defendant moved for a directed verdict, which motion the court denied. After verdict for the plaintiff, a motion for a new trial was presented, to the denial of which the defendant duly excepted. To review the judgment entered the defendant has brought error.

The first question discussed in the briefs relates to the refusal of the court to permit the defendant to amend its plea by adding a notice of the defense of ultra vires. The application was not seasonably made. The summons was issued on July 8, 1924. This is the second trial of the cause. The first trial was had in December, 1924. A new trial was granted. The second trial began March 7, 1925. Before court convened on that day, counsel for the defendant made known their intention of asking for leave to amend the plea. Counsel for the plaintiff said that, if such action were taken, it would be necessary to continue the case over the term, and that defendant would be required to pay the costs to date. The judge delayed opening of the court in order that the parties might have time to confer. After such conference defendant's counsel announced to the court that they had decided not to ask for leave to amend. The trial was then begun. After the jury had been selected and sworn, counsel for defendant changed their minds and made formal application to amend the plea. The question is whether in denying their application there was an abuse of the judicial discretion. In justification of his action the court said:

‘The court had been sitting for weeks hearing jury cases, was having difficulty in procuring jurors, and had a large number of jury cases yet to try. By giving the court to understand that they did not intend to apply for the amendment and were ready to proceed to trial under the pleadings as they stood, they led the court into a position where it and the jury would be forced to lay idle for a day at the expense of the county in the midst of a very heavy term. The defense is not one which could be claimed to have been a newly discovered one. It is one which should have been known to defendant at the time of the filing of the original plea.’

We think that the circumstances under which this application was made furnish a sufficient answer to the defendant's contention that there was an abuse of discretion in disallowing it.

The refusal to direct a verdict as requested by the defendant raises the question as to whether the court erred in holding that the failure of the plaintiff to file notice of his claim as required by the provisions of the city charter was not a condition precedent to his action for damages, and did not bar his right to recover.

The charter provisions of the city of Wakefield apply to all claims whether in tort or contract. That applicable to this action reads as follows:

‘No action shall be maintained against the city on account of any injuries or damages to person or property, unless such action shall be commenced within one year from the occurrence of the injury or damage; nor unless notice shall have been given in writing to the city clerk within fifteen days of the occurrence of such injury or damage, stating the time and specific place where, and the circumstances under which the same occurred; nor unless within ninety days after the occurrence of such injury or damage a claim therefor in writing and under oath shall be filed with the clerk stating the amount claimed and the names of the witnesses, if any, present when such injury or...