City of Detroit v. Grant

• Decision Date: 16 February 1904
• Citation: 135 Mich. 626,98 N.W. 405
• Court: Michigan Supreme Court
• Parties: CITY OF DETROIT v. GRANT.

98 N.W. 405

135 Mich. 626

CITY OF DETROIT v. GRANT.

Supreme Court of Michigan

February 16, 1904

Error to Circuit Court, Wayne County; Joseph W. Donovan, Judge.

Action by the city of Detroit against Archibald Grant to recover on account of a judgment rendered against the city for damages for personal injuries incurred on a portion of pavement being constructed by defendant for plaintiff under an agreement to save plaintiff harmless. Judgment for plaintiff, and defendant brings error. Affirmed.

The defendant had a contract with plaintiff for paving a street in Detroit. The contract was dated August 4, 1894. Defendant agreed 'to erect and maintain a good and sufficient fence, railing, or barrier around any and all excavations necessary for said work, in such manner as to prevent accidents; to place upon such railing or fence or barrier, at twilight on each day, suitable and sufficient colored lights and keep them burning during the night; and further to pay to, indemnify, and save the city harmless against all loss and damage which may be occasioned or arise by reason of any negligence or carelessness on his part in doing such work.' Defendant sublet the work. His subcontractor did not comply with this provision of the contract, and one Dooley fell into an excavation and was injured. Dooley filed a claim for damages against the city, which the city rejected. He thereupon brought suit against both the city and defendant. By stipulation between the attorney for Dooley and the attorney for Grant, that suit was discontinued as against Grant, and left to stand as against the city. After the adjournment of the court the first day of the trial, the city served a written notice upon the defendant, notifying him 'that the suit of William Dooley, originally brought against the city of Detroit and yourself, is on trial; that the city will hold you liable for any judgment which may be recovered against it in said cause; and, if you have any information which may be sued in the defense, I will thank you to give it to me at once. You are also requested to assist in the defense.' On the following day the defendant ant appeared, was present at the trial, and sworn as a witness. Judgment was rendered against the city for $1,500, January 3, 1898. The work was completed in November 1894, and the board of public works so reported to the common council November 27th. A resolution was adopted in accordance therewith accepting the pavement and directing payment. On December 4th the resolution was reconsidered, and referred to the board of public works, information having been received that a man had been injured during the progress of the work owing to the fact that no lights had been kept at night. After further consideration, and after defendant had filed a petition for mandamus to compel the acceptance of the work and upon the advice of the legal department of the city that the bond given by Mr. Grant was liable in case of any judgment rendered against the city, the total amount due Grant for paving was paid. The object of this suit is to recover the damages suffered by the city on account of the judgment so...