Maki v. City of East Tawas

• Decision Date: 25 June 1969
• Docket Number: Docket Nos. 5030 and 5371,No. 3,3
• Citation: 170 N.W.2d 530,18 Mich.App. 109
• Parties: Virginia MAKI, Administratrix of the Estate of Leo V. Maki, Deceased,* Plaintiff-Appellee, v. The CITY OF EAST TAWAS, a municipal corporation, Defendant-Appellant. Virginia MAKI, Administratrix of the Estate of Leo V. Maki, Deceased, Plaintiff-Appellant, v. The CITY OF EAST TAWAS, a municipal corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 530

170 N.W.2d 530

18 Mich.App. 109

Virginia MAKI, Administratrix of the Estate of Leo V. Maki, Deceased,* Plaintiff-Appellee, v. The CITY OF EAST TAWAS, a municipal corporation,

Defendant-Appellant.

Virginia MAKI, Administratrix of the Estate of Leo V. Maki, Deceased, Plaintiff-Appellant, v. The CITY OF EAST TAWAS, a municipal corporation, Defendant-Appellee.

Docket Nos. 5030 and 5371.

Court of Appeals of Michigan, Division No. 3.

June 25, 1969.

Released for Publication Sept. 26, 1969.

Eugene D. Mossner, Cicinelli, Mossner, Majorors, Harrigan & Alexander, Saginaw, for appellant.

Charles C. Collison, Egloff, Mainolfi, Taylor, McGraw & Collison, Saginaw, for appellee.

Before LEVIN, P.J., and HOLBROOK and DANHOF, JJ.

DANHOF, Judge.

Plaintiff sued defendant, city of East Tawas, for damages arising from the loss of an eye resulting from an explosion while he was at the East Tawas Municipal Dump on December 4, 1965. The claim was originally based upon negligence, but additional counts of gross negligence and nuisance were later added. The defendant filed a motion for an accelerated judgment asserting that P.A.1964, No. 170, § 7 (M.C.L.A. § 691.1407 (Stat.Ann.1969 Cum.Supp. § 3.996(107))), relative to governmental immunity, bars the cause of action. The circuit judge denied the defendant's motion stating that the aforesaid § 7 was unconstitutional as it did not fall within the object embraced in the title of the act and, therefore, defendant was not immune from such suit. The case proceeded to a jury trial solely on the theory of nuisance, after plaintiff voluntarily struck his allegations of negligence and gross negligence from the complaint, and a verdict was rendered in favor of plaintiff in the amount of $12,500, plus costs. From this judgment defendant appealed alleging the trial court erred in ruling that defendant was not immune from suit. In addition, the plaintiff filed a motion for a new trial alleging the verdict was grossly inadequate and from the denial of his motion, the plaintiff appealed. Subsequently, the two appeals were consolidated.

On appeal, the first question to be answered is whether plaintiff's nuisance suit was well-founded. The city argues that plaintiff's cause of action was founded upon nothing more than negligence in the operation of its dump, and that such cause of action was barred by P.A.1964, No. 170, § 7.

In support of this position defendant points out that plaintiff initially claimed ordinary negligence in his complaint, then by amendment added gross negligence and nuisance, later voluntarily abandoning the negligence theories and proceeding to trial on a nuisance theory only--all without change in the allegations.

As authority the defendant cites Royston v. City of Charlotte (1936), 278 Mich. 255, 260, 270 N.W. 288, 290 where the court enunciates the following legal proposition:

'Acts in the discharge of governmental functions which create a nuisance Per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care.'

Since the Royston case, Supra we have the case of Denny v. Garavaglia (1952), 333 Mich. 317, 52 N.W.2d 521 which clearly recognizes three categories of nuisance, the last one based on negligence. At p. 331, 52 N.W.2d at pp. 527--528, the court quoted from Beckwith v. Town of Stratford (1942), 129 Conn. 506, 29 A.2d 775, wherein the court had occasion to discuss the elements constituting nuisances. The quotation follows:

"Apart from nuisances which have their origin in accident, nuisances resulting in personal injury fall into 3 general classes. Beven, Negligence, 4th Ed., p. 426, note. One class includes nuisances which result from conduct which is in itself a violation of law, and as to them it has been held on high authority that contributory negligence is not a defense, Delaney v. Philhern Realty Holding Corporation (1939), 280 N.Y. 461, 465, 21 N.E.2d 507; but with such nuisances we have no concern in this case. A second includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance. The other class includes nuisances which have their origin in negligence, which in its essence is an absence of care. Nuisances falling in the second class are those which we characterize as absolute and against which contributory negligence is not a defense. To hold that contributory negligence should not be a defense as regards them and should be as to the last class of nuisances rests upon the essential difference in the nature of the wrong committed. Negligence consists in a failure to exercise due care, and to a nuisance grounded on negligence, contributory negligence is for that reason an appropriate defense. Winfield, Torts, op. cit., p. 501. Where, however, the essence of the wrong is conduct which is intentional, in the sense in which we have used that word, that conduct goes beyond a mere lack of proper care, and there is not the same balance of obligation between the duty of one person to guard another from an injury from such a lack and the duty of the other not to fail to exercise a like care in his own protection. See Bohlen, Studies in the Law of Torts, p. 527. The fact that contributory negligence is not a defense as against reckless misconduct presents a somewhat analogous situation. (Citations omitted)"

The court in the Denny case then held:

'The record supports the finding of the trial court that the nuisance was created through acts of negligence on the part of Garavaglia.'

Again in the case of Dahl v. Glover (1956), 344 Mich. 639, 644, 645, 75 N.W.2d 11, 14, the court recognized that a nuisance might have its origin in negligence for the court said:

'We are not in accord with appellant's claim that the court erred in charging the jury that they might find the maintaining of a nuisance created by negligence; or that the court 'improperly injected (the question of negligence) into the case.' The court charged the jury that a nuisance might have its origin in negligence, and charged that if the jury so found, contributory negligence would be a good defense which the jury must consider.

'The charge as a whole was proper. Denny v. Garavaglia (1952), 333 Mich. 317, 52 N.W.2d 521; Brown v. Nichols (1953), 337 Mich. 684, 60 N.W.2d 907.'

Also, in the case Young v. Groenendal (1968), 10 Mich.App. 112, 159 N.W.2d 158, 159--160, the general rule that contributory negligence is available as a defense to an action based on a nuisance where the nuisance is caused by negligent conduct was recognized. The court said:

'The Supreme Court of Michigan has stated that as a general rule contributory negligence is available as a defense to an action based on a nuisance where the nuisance is caused by negligent conduct. Denny v. Garavaglia (1952), 333 Mich. 317, 52 N.W.2d 521. The rule is Contra by the established weight of authority when there is a 'classic' or 'standard' or 'absolute' nuisance involved. See 73 A.L.R.2d 1381. The latter type nuisance arises when one so uses his land as to cause unreasonable interference with the use and enjoyment of the land of another. The classic nuisance is not in question here because there are no conflicting real property interests being asserted.

'Whether the source of a nuisance action is really negligence requires attentiveness to all the facts of the action. In Dahl v. Glover (1956), 344 Mich. 639, 75 N.W.2d 11, The Supreme Court, relying on Denny v. Garavaglia, Supra, held that a jury charge on contributory negligence as a defense to be considered by the jury was proper although plaintiff, at the close of her evidence, withdrew her count in negligence and relied solely on her count in nuisance. In the instant case, With no change in the facts alleged to support the cause of action, plaintiff amended his complaint to read nuisance instead of negligence. As in Dahl v. Glover, Supra, the trial court may and should penetrate the formal label to discover the actualities of the case.' (emphasis supplied)

The brief Amicus Curiae of the Michigan Association of Municipal Attorneys which argues in support of the defendant city's position that nuisance cannot be based on negligence alone cites the case of Awad v. McColgan (1959), 357 Mich. 386, 98 N.W.2d 571. However, this case is distinguishable from the preceding cases because the action sounded in contract rather than in tort. The court specifically recognized the negligence-nuisance type of action at p. 390, 98 N.W.2d at p. 574 where it said:

'We do not hold that the negligence-nuisance type of action referred to above may never be brought. In a proper case it may be, and, if so, it partakes of the essentials of a negligence action, including such defenses as that of contributory negligence. (See annotation, 57 A.L.R. 7.) The name (negligence or nuisance) does not control the result. The point is, however, that the gravamen of the action must sound in tort and a landlord's breach of promise to repair does not so sound.'

Thus, this Court concludes that the Royston case, Supra, insofar as it holds that want of care in maintenance presents a question of negligence only, and not that of a public nuisance, has been overruled indirectly by subsequent cases, Denny, Dahl, Young, supra, and that the plaintiff has stated a cause of action in nuisance even though the allegations relate solely to negligence.

Further, we hold that contributory negligence is available as a defense in such a case; to wit, where the nuisance giving rise to the cause of action is based on negligent conduct. Young v. Groenendal, Supra, Denny v. Garavaglia, Supra, and Dahl v. Glover, Supra.

Plaintiff vigorously contends that the instant case is within the...