Hughes v. City of Detroit

• Decision Date: 13 April 1953
• Docket Number: No. 65,65
• Citation: 336 Mich. 457,58 N.W.2d 144
• Parties: HUGHES v. CITY OF DETROIT et al.
• Court: Michigan Supreme Court

Page 144

58 N.W.2d 144

336 Mich. 457

HUGHES v. CITY OF DETROIT et al.

No. 65.

Supreme Court of Michigan.

April 13, 1953.

Bloom & Bloom, Detroit, for plaintiff and appellant.

Paul T. Dwyer, Corporation Counsel, Leo E. LaJoie, Asst. Corporation Counsel, Detroit, for defendant and appellee, City of Detroit.

Davidson, kaess, Gotshall & Kelly, Detroit (Roy P. Nelson, Detroit, of counsel), for Jay Are Paper Co., defendant and appellee.

Before the Entire Bench.

BOYLES, Justice.

Plaintiff sued the City of Detroit and Jay Are Paper Company to recover damages resulting from injuries sustained by plaintiff due to defects in a sidewalk in Detroit along the front of the paper company's premises. The city moved to dismiss the suit on the ground that it had not been begun within the statutory limitation of time for starting such actions and the paper company moved to dismiss on the ground, inter alia, that there was no primary duty on its part to maintain or repair the sidewalk. The trial court granted both motions and the plaintiff appeals.

The declaration alleges that plaintiff's injury was sustained on October 14, 1947. The suit was started May 5, 1950. In so far as it alleges liability of the city, it is based on chapter 22 of Act No. 283, P.A.1909, C.L.1948, §§ 242.1-242.8, Stat.Ann. §§ 9.591-9.598. ¹ Section 1 of this chapter creates the liability of townships, villages and cities for neglect to maintain public highways, streets, sidewalks, et cetera, in reasonable repair. Any such liability of a city is based on said statute--the duty of a city to keep its sidewalks in repair did not exist at common law. Rivard v. City of Bay City, 279 Mich. 317, 272 N.W 690.

Section 8 was added to said chapter by P.A.1915, No. 301, C.L.1948, § 242.8, Stat.Ann. § 9.598. It concludes as follows:

'All actions in court under this act must be brought within 2 years from the time said injury was sustained.'

Emphasis is here given to the concluding words of said limitation because they distinguish it from decisions in which courts have considered the question as to when the plaintiff's cause of action arose. The language in this statute is plain and leaves no room for judicial construction. However, it is interesting to note that in some of the earlier cases decided by this Court, indicating that plaintiff's cause of action did not arise until after expiration of the time within which notice of the injury must be given the city, or until the lapse of a reasonable time within which the city must act after having received such notice, the Court held that suit might be barred by the statute. For example, see Holtham v. City of Detroit, 136 Mich. 17, 98 N.W. 754, and cases cited therein. The Court there held (syllabus):

'An action against a city for a negligent injury, barred because of plaintiff's failure to give notice to the law department within the three months required by the charter, cannot be revived by the action of the council in consenting to consider the claim.'

And in Miller v. Village of Birmingham, 145 Mich. 470, 108 N.W. 1015, 1016, the Court reaffirmed said doctrine, by quoting from the Holtham case, supra, as follows:

"An action of tort, once barred by the statute of limitations, cannot, like an action arising out of contract, be revived by either an express or implied agreement,' citing Renackowsky v. Board of Water Commissioners [of City of Detroit], 122 Mich. 613, 81 N.W. 581; Van Auken v. City of Adrian, 135 Mich. 534, 98 N.W. 15.'

Plaintiff relies on Springer v. City of Detroit, 118 Mich. 69, 76 N.W. 122. The facts and circumstances distinguish it from the case at bar. In that case the injury was sustained in 1891. After our earlier decision is Springer v. City of Detroit, 1894, 102 Mich. 300, 60 N.W. 688, a second suit was begun June 18, 1896, following an amendment of the city charter, effective September 1, 1895, providing for a time limit within which the claimant must begin suit, and also the time within which the claimant must give notice of the injury to the city. It excepted from its provisions suits for injuries for which there then existed a lawful cause of action and allowed further time for commencement of suit. Decision hinged upon the question when the cause of action had accrued, whether based upon the time when the claim had been presented to the city council and a reasonable time allowed the city for investigation and decision. Among other things, the Court said [118 Mich. 69, 76 N.W. 123]:

'We have already seen there was no lawful cause of action, within the meaning of the statute, until a verified claim had been presented to the council, and a reasonable time given them to investigate, and decide what the city would do. Both parties treated the investigation as though made within a reasonable time, and, as the delay was caused by the investigation, the city cannot set it up as a defense in this action.'

In Klass v. City of Detroit, 129 Mich. 35, 88 N.W. 204, 205, the plaintiff sued the city of Detroit for damages resulting from personal injury received December 31, 1895, on account of failure by the city to keep a street in repair. The then-statute limited the time for bringing suit to 1 year from the time the injury was recevied. Suit was begun March 23, 1897, more than a year from the time the injury was received. The trial court directed a verdict for the defendant on the ground that the suit was barred by the statute. On appeal, the Court found that the city had not, by its delay in denying the claim, deceived the plaintiff into believing that suit was not necessary or thereby induced him to forego suit; and that there was no intentional deception exercised by the city. In that respect, the case is the same as the case at bar. In affirming the trial court, the Court said:

'The statute is an unambiguous limitation on the right to bring an action after the lapse of a year. It was presumably known to the plaintiff and his counsel. The common council was under no obligation to take any action, and, had it pursued that policy, the plaintiff could not maintain an action not begun within the statutory period. * * * The legislature has found reason for requiring actions against cities to be promptly brought, and a strict construction of its enactment would defeat all actions brought after the expiration of the period fixed by law. It is a legal maxim that nothing can interrupt the running of the statute of limitation, and it is commonly stated without any qualification. But the courts have ingrafted upon statutes of limitation an exception based upon estoppel. This seems to be limited to cases involving an intentional or negligent deception, and the remedy used to be a bill in equity to enjoin the pleading of the statute. * * * there is an absence of anything in the nature of a promise to pay, as a consideration for forbearance, and of anything in the nature of a recognition of plaintiff's right of action. Unless we are to say that the statute is a bar in no case when negotiations are continued beyond or renewed after the period of the statute, we cannot sustain plaintiff in his contention, and we find no case justifying so broad a rule.'

In the instant case plaintiff's suit was not begun within 2 years from the time the injury was sustained. The trial court held that plaintiff's right to recover damages from the city for his injury was barred by the limitation of time within which to sue, provided for in the statute which created the right. Plaintiff claims that the delay in starting suit was caused by the inaction and delay of the city authorities in investigating, considering and passing on plaintiff's claim. However, the city made no false promises of payment, no inducements were held out to plaintiff to delay starting suit, no statutory inhibition intervened, and plaintiff could have filed his declaration by which suit was begun, within the 2-year limitation.

'A positive distinction seems to be made between cases in which the limitation of time for bringing suit is contained in the statute which creates the liability and right of action and general statutes of limitations of the rights of action existing under other statutes or under the common law. In the former the limitation of time is a limitation of the right, and, as has been said, the suit cannot be maintained if not...