City of Detroit v. Chaffee

• Decision Date: 27 April 1888
• Citation: 37 N.W. 882,70 Mich. 80
• Court: Michigan Supreme Court
• Parties: CITY OF DETROIT v. CHAFFEE.

37 N.W. 882

70 Mich. 80

CITY OF DETROIT v. CHAFFEE.

Supreme Court of Michigan

April 27, 1888

Error to circuit court, Wayne county.

Action by the city of Detroit against Amos Chaffee to recover the amount paid by it to Elizabeth C. Thomas for injuries received by her from an accident caused by a defective sidewalk in front of a lot belonging to Chaffee. Defendant recovered judgment, and plaintiff brings error.

Henry M. Duffield, (John W McGrath, of counsel), for appellant.

Otto Kirchner, for appellee.

CHAMPLIN J.

The facts in this case are well stated in the brief of the attorney for the plaintiff, as follows:

"Elizabeth C. Thomas, who was an alien, was injured by a fall upon a defective sidewalk in front of the premises belonging to the defendant, on Woodward avenue, in the city of Detroit on the 1st day of April, 1886. She presented her claim to the common council of the city of Detroit, in writing under the provisions of the city charter. Upon the rejection of the claim by the common council, she commenced suit, on the 29th of June, 1886, in the circuit court of the United States for the Eastern district of Michigan. The city of Detroit, through its city counselor, notified the defendant in this cause of the commencement of the suit calling his attention to the notice to repair said walk, which had been served upon him some time before the accident, and the claim of the city of Detroit that, by reason of the defendant's neglect to repair said walk, the injuries complained of happened to the plaintiff, if any injuries were sustained by her. The city further notified the defendant that he was at liberty to defend the suit, and that any judgment which might be recovered against the city in said suit would be treated by the city as binding and conclusive on the defendant as to his liability and as to the amount of damages. In reply, Mr. Chaffee's attorney, Mr. Otto Kirchner, wrote that the defendant had instructed him to aid in the defense of the case, but that Mr. Chaffee repudiated all liability of any kind to answer over to the city of Detroit, refused to take upon himself the responsibility of the defense of said action, and desired it expressly understood that, notwithstanding any participation in the defense of said action, he would maintain and insist that he was not bound by the result of said action. Upon the trial of the case of Elizabeth C. Thomas against the city of Detroit, in the United States court, the city did not appear, and defendant's attorney in this cause cross-examined the witnesses for the plaintiff, and introduced the testimony of witnesses, including the testimony of the defendant in this cause, Amos Chaffee, to rebut the case made by the plaintiff in said cause against the city of Detroit. The jury rendered a verdict in favor of the plaintiff for $2,500 damages, upon which judgment was rendered, including $60.40 costs of suit. After having paid the judgment, the city of Detroit notified the defendant in this cause of that fact, and that, unless the defendant reimbursed the city, suit would be begun at once. The defendant in this cause not responding, the city of Detroit commenced this action. Upon the trial thereof proof was introduced tending to show, in addition to the facts above stated, that the plaintiff was and is a municipal corporation, and that Woodward avenue is, and for fifteen years last past has been, a public highway, and that an ordinance, extracts from which will be referred to hereafter, was in force before and on the 1st day of August, 1885. Plaintiff also gave evidence of the action of the board of aldermen and board of councilmen directing the board of public works to notify the owner of the premises where the accident occurred to construct new sidewalks in front of said lot, in accordance with the ordinance and the city charter. Plaintiff further introduced evidence tending to show that notice was duly served upon the defendant in this cause in pursuance of said resolution, and also testimony concerning a conversation between Mr. Alexander Chapoton, of the board of public works of the city of Detroit, and the defendant, Chaffee, and an understanding between said Chaffee and Chapoton that, if anybody was hurt by reason of Chaffee's delay in repairing the sidewalk, Chaffee would be responsible for it, in reliance upon which the board of public works built no walk. The plaintiff also introduced testimony tending to show that the place named in said notice was the place where the accident to Mrs. Thomas happened, and that the premises mentioned in the notice belonged to the defendant, Chaffee, and were occupied by him at the time of the accident; and also introduced in evidence the declaration, plea, minutes of trial, verdict, judgment, and taxation of costs in the suit of Elizabeth C. Thomas v. The City of Detroit, in the circuit court of the United States for the Eastern district of Michigan. Thereupon the plaintiff rested its case, and defendant's counsel moved the court to direct a verdict for the defendant upon the case made by the plaintiff, which motion was, after argument, and consideration by the court, granted. To this ruling, plaintiff, by its counsel, then and there duly excepted. A verdict was rendered by the jury under the direction of the court, and judgment entered thereon. The sole error assigned is upon the charge of the court directing a verdict in favor of the defendant.

"The charter of the city of Detroit, in force at the time of the accident and proceedings in this cause, contained the following provision: 'The common council shall have power to provide and ordain by ordinance that, whenever any sidewalk requires to be built or repaired, said council may direct the board of public works to notify the owner, agent, or occupant of any lot or parcel of land in front of or adjacent to which such walk is required to be built, to build or repair the same, and that if such agent, owner, or occupant shall neglect, for a time to be specified in the ordinance, to do such building or repairing, it shall be the duty of the said board to at once do or cause the same to be done, and in such case the expense thereof shall be assessed upon such lot or parcel of land, and shall be a lien thereon until collected and paid in a manner to be prescribed by such ordinance; and the owner, so neglecting to build or repair, shall be

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