Coates v. Milner Hotels, Inc.
| Decision Date | 12 April 1945 |
| Docket Number | No. 68.,68. |
| Parties | COATES v. MILNER HOTELS, Inc., et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wayne County; DeWitt H. Merriam, judge.
Action by Grace Coates against Milner Hotels, Inc., and Earle R. Milner for damages allegedly sustained by plaintiff as a result of an assault by a third person while a guest at the hotel allegedly owned by the corporate defendant. From an order quashing service of declaration and amended declaration and setting aside order of default and dismissing plaintiff's action, the plaintiff appeals.
Order set aside, and cause remanded for further proceedings in conformity with opinion.
Before the Entire Bench.
Edmund M. Sloman, of Detroit, for appellant.
Leo J. Carrigan, of Detroit, for apellees.
Plaintiff Grace Coates commenced suit on May 22, 1941, against Milner Hotel Company, in an action of trespass on the case. She charged that, because of the negligence of the named defendant, her room at the Reid Hotel, where she was a guest, was entered by one John Doe, also known by the name of ‘Orange,’ who, while under the influence of liquor, violently assaulted her. In a second court she claimed damages because of a breach of an implied contract to protect her against intrusion while in the peaceful and quiet enjoyment of her room. In each of the counts she charged that the assault occurred on the night of June 17, 1938. This date becomes important because of matters hereinafter stated.
This declaration, with rule to plead indorsed thereon, was served upon Milner Hotel Company, a Michigan corporation, on May 26, 1941, by handing the same to John Fredericks, assistant treasurer of that corporation. Milner Hotels, Inc., a Michigan corporation, appeared and moved to quash the service for the reason that Milner hotel Company, a Michigan corporation, had been dissolved on July 12, 1935, and that Milner Hotels, Inc., did not own or operate the premises described in the declaration as the Reid Hotel, and that those premises had never at any time been owned or operated by either Milner Hotels, Inc., or Milner Hotel Company.
On June 13, 1941, plaintiff filed an amended declaration with rule to plead, naming Milner Hotels, Inc., a Michigan corporation, and Earle R. Milner, jointly and severally as defendants. In this amended declaration the alleged trespass and breach of implied contract are said to have occurred on June 19, 1938. Service of the amended declaration was made upon John R. Fredericks, authorized agent for Earle R. Milner on June 20, 1941, and on Kenneth J. Hale, secretary of Milner Hotels, Inc., on June 18, 1941.
The trial judge filed a written opinion on September 2, 1941, in which he stated that the amended declaration had been filed without first obtaining any order or leave of court as required by statute (3 Comp.Laws 1929, §§ 14021, 14144 and 14150, Stat.Ann. §§ 27.665, 27.838 and 27.844), and that on July 7, 1941, after the statute of limitations (3 Comp.Laws 1929, § 13976, Stat.Ann. § 27.605) had barred the action, plaintiff filed a petition asking leave to add Earle R. Milner as a defendant, and for the entry of an order nunc pro tunc as of June 18, 1941. The court held that the service of the declaration and amended declaration should be quashed and the action dismissed.
On October 14, 1941, plaintiff filed an affidavit of default as to Earle R. Milner, an affidavit of regularity and an order pro confesso. The last-named defendants, on October 29, 1941, filed a motion to quash the service of the amended declaration and to set aside the order of default. On January 6, 1942, the circuit judge addressed a letter to counsel stating that he had carefully considered the matter for ‘many months,’ had heard the motions to quash, etc.; that his opinion as expressed on September 2, 1941, was unchanged, and that an order should be presented in accordance therewith. On February 2, 1942, a final order was entered quashing the service of the declaration and amended declaration, setting aside the order of default, and dismissing plaintiff's action. From this order plaintiff appealed.
Appellant incorrectly contends that the defense of the statute of limitations was not pleaded. In the motion to quash, filed October 29, 1941, Earle R. Milner specifically stated that the statute of limitations had barred any action against him at the time application was made to the court to add his name as a party defendant.
Two questions are presented:
(1) Could the pleadings be amended without order of court?
(2) Is plaintiff's second count for breach of an implied contract barred by the statute?
3 Comp.Laws 1929, § 14021, Stat.Ann. § 27.665, reads:
3 Comp.Laws 1929, § 14144, Stat.Ann. § 27.838, reads:
3 Comp.Laws 1929, § 14150, Stat.Ann. § 27.844, reads: ‘No process, pleading or record, shall be amended or impaired by the clerk or other officer of any court, or by any other person, without the order of such court, or of some other court of competent jurisdiction.'
The amended declaration was filed before an answer was ‘put in,’ and under the provisions of ...
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...Court has held that it cannot be maintained on a contract theory when commenced beyond the three-year period. Coates v. Milner Hotels, Inc., 311 Mich. 233, 18 N.W.2d 389 (1945), Baatz v. Smith, 361 Mich. 68, 104 N.W.2d 787 (1960), State Mutual Cyclone Ins. Co. v. O & A Electric Cooperative,......
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...the issue. Goldfarb cited Rhule v. Armstrong, 384 Mich. 709, 187 N.W.2d 223 (1971) (wrongful death), and Coates v. Milner Hotels, Inc., 311 Mich. 233, 18 N.W.2d 389 (1945) (negligence by hotel in allowing the plaintiff to be assaulted by third party in the hotel), as examples of the three-y......
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