Kraus v. Board of County Road Com'rs for County of Kent
| Decision Date | 30 December 1964 |
| Docket Number | Civ. A. No. 4360,4365. |
| Citation | 236 F. Supp. 677 |
| Parties | Joyce M. KRAUS, Special Administrator of the Estate of Kenneth Kraus, Deceased, Plaintiff, v. BOARD OF COUNTY ROAD COMMISSIONERS FOR the COUNTY OF KENT and Board of County Road Commissioners for the County of Newaygo, jointly and severally, Defendants. Joyce M. KRAUS, Plaintiff, v. BOARD OF COUNTY ROAD COMMISSIONERS FOR the COUNTY OF KENT and Board of County Road Commissioners for the County of Newaygo, jointly and severally, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Bergstrom, Slykhouse & Van Orden, Grand Rapids, Mich., Richard M. Van Orden, Grand Rapids, Mich., of counsel, for plaintiff.
Allaben & Massie, Grand Rapids, Mich., Sam F. Massie, Jr., Grand Rapids, Mich., of counsel, for Newaygo County Board of Road Com'rs.
Cholette, Perkins & Buchanan, Grand Rapids, Mich., William D. Buchanan, Grand Rapids, Mich., of counsel, for Kent County Board of Road Com'rs.
The question presented by this motion is whether or not Michigan Statutes Annotated, § 9.121 Comp.Laws 1948, § 224.21, Pub.Acts 1951, No. 234, requiring written notice to the Board of County Road Commissioners of claims against them for injuries caused by defective roads within sixty days of the date of injury, applies in actions brought under Michigan Statutes Annotated, § 27A.2922, the Wrongful Death Act Comp. Laws 1948, § 600.2922, Pub.Acts 1961, No. 236.
Michigan Statutes Annotated, § 9.121 provides that counties have the duty to "keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel," all county roads. It further provides that "the provisions of law respecting liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system."
Finally, there is a proviso that no county board of road commissioners shall be liable for "damages sustained by any person upon any county road, either to his person or property, by reason of any defective county road * * * unless such person shall serve or cause to be served within 60 days after such injury," notice to the board.
Defendant contends that since there was admittedly no notice filed in this action, the plaintiff has no cause, and the action should be dismissed.
Plaintiff claims that the action maintained under the Wrongful Death Act is not a personal injury within the notice requirements of the statute, and therefore, is supported solely by the provisions of the Wrongful Death Act and is maintainable with no notice.
While the precise question has never been decided in the State of Michigan, other jurisdictions have held that such notice requirements are inapplicable in cases of wrongful death actions, and there is authority in Michigan to support a holding that a similar result would be reached in the courts of this state.
The case of Racho v. City of Detroit, 90 Mich. 92, 51 N.W. 360, decided that Public Act No. 264 of 1887, (the fore-runner of Michigan Statutes Annotated, § 9.591 Comp.Laws 1948, § 242.1, Pub. Acts 1951, No. 19) which provided that no municipality would be liable for any bodily injuries sustained upon public highways except under the provisions of that Act, was inapplicable in an action for wrongful death — the provisions of the Wrongful Death Act governed such an action.
The question of whether the statute limiting liability to cases of personal injury or the Wrongful Death Act governed, came up again for decision in the case of McCaul v. Kent County, 231 Mich. 681, 204 N.W. 756, decided in 1925, some ten years after an additional provision to Public Acts 1887, No. 264, established a notice requirement in cases in which it was intended to sue any city or incorporated village for damages as a result of personal injuries caused by negligent maintenance. The court was not called upon to deal with the notice provision, but rested its decision on the holding that the survival act alone governed the action, and the statutory language limiting liability to cases of personal injury was irrelevant to the disposition of the case.
The case presently before the court presents the same situation, except that in place of a city or incorporated village being responsible for road maintenance, we have a board of county road commissioners.
Therefore, following the Racho and McCaul cases, supra, it seems clear that the provisions of Michigan Statutes Annotated, § 9.121, which provide for notice in order to maintain an action, are not relevant and the action proceeds solely under the provisions of the Wrongful Death Act.
Defendants argue that to so hold is to ignore the doctrine of governmental immunity. Of this doctrine we shall say more later in this opinion, but for purposes of this...
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U.S. v. Streidel
...of a personal injury action did not apply to a suit by the "next of kin of the decedent"); Kraus v. Board of County Road Comm'rs for County of Kent, 236 F.Supp. 677, 679 (W.D.Mich.1964), appeal denied, 364 F.2d 919 (6th Cir.1966) (same). See also Pacific Indem. v. Interstate Fire & Cas., 30......
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Morgan v. McDermott, 2
...the scope of this amendment? Judge Noel Fox held that it did not apply in an action for wrongful death in Kraus v. Board of County Road Commissioners (W.D.Mich.1964), 236 F.Supp. 677. The Michigan Court of Appeals followed his reasoning. 8 Mich.App. 260, 264, 154 N.W.2d 576. The use of the ......
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Morgan v. McDermott
...to the city of his claim for injury. Appellant relies on a decision by District Judge Fox in Kraus v. Board of County Road Commissioners for Kent County, (W.D.Mich.1964) 236 F.Supp. 677, which held that the notice provisions of the statute 3 were not applicable in an action brought under th......
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Kraus v. Board of County Road Commissioners
...statute requiring notice within sixty days of injuries caused by defective roads does not apply to an action for wrongful death. 236 F.Supp. 677. Jury trial was commenced in May 1966. The district court granted a motion for mistrial because of interjection on voir dire examination of the fa......