Jourdin v. City of Flint

• Decision Date: 01 June 1958
• Docket Number: No. 4,4
• Parties: James JOURDIN, Plaintiff and Appellee, v. CITY OF FLINT, a Michigan Municipal Corporation, Defendant and Appellant. ,
• Court: Michigan Supreme Court

Page 900

94 N.W.2d 900

355 Mich. 513

James JOURDIN, Plaintiff and Appellee, v. CITY OF FLINT, a Michigan Municipal Corporation, Defendant and Appellant.

No. 4, June Term, 1958.

Supreme Court of Michigan.

Feb. 20, 1959.

William J. Kane, Don W. Mayfield, Wade D. Withey, Flint, for defendant and appellant.

Pelavin & Gottlieb, Flint, Norman N. Gottlieb, Flint, of counsel, for plaintiff and appellee.

Paul L. Adams, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Samuel D. Frane, Asst. Atty. Gen., for intervenor.

Before the Entire Bench.

KAVANAGH, Justice.

Plaintiff sued the city of Flint for damages resulting from injuries claimed to have been due to the failure of the city employees to maintain proper barricades to warn drivers on the highway of a hole in the highway which the city was repairing.

The accident happened about 10 o'clock in the evening on June 7, 1955, after working hours of the repair crew. It is admitted that Dort highway, on which the repair work was being done, is and always has been a part of US-10, a State trunk-line highway, beginning at the foot of Woodward avenue in the city of Detroit and running northwesterly up Woodward avenue to the city of Pontiac, thence through Flint, Saginaw, and across the State of Michigan to Ludington. The place where the accident happened is within the corporate limits of the city of Flint.

It is stipulated that Dort highway, at the point of the accident, was built by the State of Michigan in 1926 as a State trunk-line highway, and that it has been maintained by the State highway commissioner since that date; that in most years the actual maintenance work was done by Genesee county under contract with the State highway commissioner. In 1954 the State highway commissioner entered into a contract with the city of Flint for maintenance, and the city of Flint was in the performance of this contract when the accident occurred. By the terms of this contract the city of Flint performed the work of maintenance and was to be reimbursed by the State highway commissioner on the basis of the city's cost.

Plaintiff based his claim for liability on C.L.S.1956, § 242.1 (Stat.Ann.1958 Rev. § 9.591), which reads as follows:

'Any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.' (Emphasis supplied.)

It is the position of the plaintiff that the city's corporate authority extends over such public highway, and that the city had a duty to keep the same in reasonable repair. Plaintiff also claims a statutory duty on the part of the city to keep in reasonable repair all public highways that are within its jurisdiction under C.L.1948, § 242.3 (Stat.Ann.1958 Rev. § 9.593), which reads as follows:

'It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, crosswalks, and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel.'

At the conclusion of the plaintiff's proofs, and again at the conclusion of defendant's proofs, defendant city made a motion for a directed verdict, which the court took under advisement under the Empson act (C.L.1948, § 691.691 et seq. [Stat.Ann.1957 Cum.Supp. § 27.1461 et seq.]). The jury returned a verdict in the amount of $2,500. Defendant city then filed a motion for a verdict non obstante veredicto for the following reasons: (1) that the plaintiff had failed to sustain the burden of proof establishing negligence on the part of the city; (2) that the plaintiff failed to establish any negligence on the part of the city which would be a proximate cause of the accident; (3) that as a matter of law, at the time and place this accident occurred, the Dort highway was a State trunk-line highway, and, being such, it was not the duty of the city of Flint, as provided in C.L.S.1956, § 242.1 (Stat.Ann.1958 Rev. § 9.591), to maintain said trunk-line highway, but was the duty of the State highway commissioner, and, therefore, the city is not liable under said statute; (4) that as a matter of law, as a contractor with the State highway commissioner for naintenance of the Dort highway at the time and place the accident occurred, the city of Flint was carrying out governmental duties of the State highway commissioner, and, therefore, was immune from suits for negligently performing the duties contracted for with the State highway commissioner.

It is admitted by both plaintiff and defendant that the State highway commissioner is not liable for negligence in the performance of his duties in constructing or maintaining State trunk-line highways.

Defendant's main contention is that it was not the duty of the city to keep and maintain Dort highway in reasonable repair at the place the accident happened, but, rather, that it was the duty of the State of Michigan under C.L.1948, §§ 225.2b, 250.61, and C.L.S.1956, § 250.31 (Stat.Ann.1958 Rev. §§ 9.204, 9.901, and Stat.Ann.1955 Cum.Supp. § 9.881).

The circuit judge denied defendant's motion, saying the negligence of the defendant and proximate cause were, on the evidence received, questions for the jury, and that under the statutes there was a duty on the part of the city to keep in reasonable repair 'all public highways, streets * * * that are within their jurisdiction, and under their care and control, and which are open to public travel.' (C.L.1948, § 242.3 [Stat.Ann.1958 Rev. § 9.593].) The trial court indicated that it did not believe that any of the statutes cited by defendant removed this duty, or that the city could avoid it by entering into a contract with the State highway commissioner. The court held that one who is injured comes within the terms of liability set forth in C.L.S.1956, § 242.1 (Stat.Ann.1958 Rev. § 9.591).

Defendant city appeals from the denial of the motion for judgment non obstante veredicto.

The Attorney General, under his statutory powers, intervened and filed a brief on behalf of the State of Michigan.

A decision in this case rests on the construction to be placed upon the several statutes mentioned nd the proper construction of C.L.S.1956, § 242.1 and C.L.1948, § 242.3 (Stat.Ann.1958 Rev. §§ 9.591, 9.593), and particularly that portion of C.L.S.1956, 242.1 (Stat.Ann.1958 Rev. § 9.591), which reads as follows:

'* * * whose corporate authority extends over such public highway, steet, * * * and whose duty it is to keep the same in reasonable repair.'

and the portion of C.L.1948, § 242.3 (Stat.Ann.1958 Rev. § 9.593), which states:

'It is hereby made the duty of * * * cities * * * to keep in reasonable repair, so that they shall be reasonably safe * * * for public travel, all public highways, streets, * * * that are within their jurisdiction, and under their care and control, and which are open to public travel.' (Emphasis supplied.)

The plaintiff, in attempting to show that the city has a duty to keep the highway in reasonable repair, claims that this is implied as natural corollary of the right to control, and contends that such reasoning is supported by article 8, § 28, of the Michigan Constitution of 1908, which provides as follows 'The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.'

The question of reasonable control under tis section of the Constitution has been under discussion by our Court several times in late years until it would seem that there could be no question with regard to the meaning of these words.

In the case of People v. McGraw, 184 Mich. 233, at pages 237, 238, 150 N.W.836, 837, we discussed this particular section of the Constitution and stated as follows:

'In the study of section 28, it is interesting to notice what the committee on submission and address to the people said with reference thereto, in submitting the proposed revision to the people (page 1433, vol. 2, Proceedings and Debates of the Constitutional Convention):

'This is a new section, and its purpose is to prevent the use of streets, alleys, highways, and public places without the consent of the local authorities first had and obtained. The word 'reasonable' was inserted to place a limitation upon the authority cities, villages and townships may exercise over the streets, alleys, highways, and public places within their corporate limits. And it was pointed out in the debates that without the word 'reasonable,' or a similar qualification, the section would practically deprive the state itself of authority over its highways and public places.'

'From this, and also from reading the debates with reference to the insertion of the word 'reasonable,' it is clear that it was not the intention of the framers of the Constitution to deprive absolutely the state itself of control over its highways and bridges in the cities, villages, and townships. The claim that the reservation should be limited to the control of public utility corporations, to our minds, overlooks entirely the express language of the last sentence of said section 28. By giving the language of the whole section its ordinary...