Citizens Cas. Co. of New York, N. Y. v. Aeroquip Corp.

Decision Date26 March 1968
Docket NumberNo. 2,Docket No. 1935,2
Citation159 N.W.2d 223,10 Mich.App. 244
PartiesCITIZENS CASUALTY COMPANY OF NEW YORK, NEW YORK, Subrogee of American Propane Corporation of Norwich, Connecticut, Plaintiff, American Propane of Norwich, Connecticut, Individually and Continental Casualty Fire and Surety Company, a foreign corporation (Added by Amended Complaint), Added Plaintiffs-Appellees, v. AEROQUIP CORPORATION, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Maxwell F. Badgley, John H. Schomer, and Badgley, Domke, McVicker & Marcoux, Jackson, for appellant.

Felix F. Best, Jackson, for appellees.

Before McGREGOR, P.J., and LEVIN and QUINN, JJ.

McGREGOR, Presiding Judge.

The circuit court denied a motion for accelerated judgment or dismissal* made by defendant, based on its contention that the added party-plaintiffs' claim should be barred by the defense of the statute of limitations. A fire occurred on July 14, 1960, to a tank truck owned by the American Propane Corporation, allegedly caused by a bursting hose manufactured for and sold by Aeroquip Corporation, the defendant. The plaintiff, Citizens Casualty Company of New York, as insurer, paid a claim. Then, on July 13, 1962, it brought this subrogation action against the Aeroquip Corporation for recovery on a count of breach of warranty of the ruptured hose, and a second count of negligence. Nearly four years after the fire, on June 26, 1964, the first plaintiff filed a motion to add as parties plaintiff the owner of the truck and a second insurance carrier, whose subrogated interest arose out of the same fire, and filed a motion to amend its own complaint. By stipulation, both motions were granted with the provision that defendant reserved its right to raise the defense of the statute of limitations to the added plaintiffs' right of recovery.

After the amended complaint was filed, defendant filed a motion for the entry of an accelerated judgment, or, in the alternative, for the entry of an order dismissing the cause as to the added plaintiffs. This was on the ground that the added plaintiffs' claim sounded in tort and was therefore barred by the three-year statute of limitations.

The applicable portion of the Michigan statute concerning limitations of actions to recover damages for injuries to persons or property, C.L.S.1961, § 600.5805 (Stat.Ann.1962 Rev. § 27A.5805), states as follows:

'No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. * * *

'(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.'

In a product liability case, regardless of whether liability is claimed on a breach of warranty or negligence theory, the action sounds in tort. Spence v. Three Rivers Builders & Masonry Supply, Inc., (1958), 353 Mich. 120, 130, 90 N.W.2d 873.

In a comparable case in New York, the complaint for recovery of damages to property by fire contained two counts, the first based on contract (warranty) and the second based on tort (negligence). The court held the New York three-year statute of limitations applied under a statute very similar to Michigan's, and dismissed the complaint, saying:

'It will be noted that the statute does not draw a distinction in terms between actions in contract and actions in tort. The three-year statute is in terms applicable to actions for 'damages for an injury to property'. It does not matter whether the action is brought in contract or in tort.

"The form of the action, whether Ex contractu, as claimed to be the case here by appellant's counsel, or Ex delicto, does not affect the case under this statute.' Webber v. Herkimer and Mohawk Street Railroad Company (1888), 109 N.Y. 311, at page 314, 116 N.E. 358, at page 359.

"Our ruling is not to rest on the term to be given the cause of action under common-law nomenclature, whether Ex delicto or Ex contractu * * * if the 'gravamen of the action and foundation of the claim' are to 'recover damages for...

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2 cases
  • Burleson v. Mead Johnson & Company
    • United States
    • U.S. District Court — Northern District of Texas
    • 30 Julio 1971
    ... ... 1964) construing New York law; Finck v. Albers Super Markets, Inc., 136 F.2d 191 (6th Cir. 1943) construing Kentucky law; Citizens Casualty Co. of New York, N. Y. v. Aeroquip Corp., 10 ... ...
  • Nelson v. Michigan Bean Co., Docket No. 6724
    • United States
    • Court of Appeal of Michigan — District of US
    • 25 Marzo 1970
    ... ... granted the motion which was based primarily on Citizens Casualty Company of New York v. Aeroquip Corporation ... ...

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