Malesev v. Board of County Road Com'rs of Wayne County

• Decision Date: 01 March 1974
• Docket Number: No. 1,Docket No. 14287,1
• Citation: Malesev v. Board of County Road Com'rs of Wayne County, 215 N.W.2d 598, 51 Mich.App. 511 (Mich. App. 1974)
• Parties: Milos MALESEV and Sophie Malesev, Plaintiffs-Appellants, v. BOARD OF COUNTY ROAD COMMISSIONERS OF the COUNTY OF WAYNE, Michigan, a public body corporate, et al., Defendants-Appellees
• Court: Court of Appeal of Michigan

Page 598

215 N.W.2d 598

51 Mich.App. 511

Milos MALESEV and Sophie Malesev, Plaintiffs-Appellants, v. BOARD OF COUNTY ROAD COMMISSIONERS OF the COUNTY OF WAYNE Michigan, a public body corporate, et al Defendants-Appellees.

Docket No. 14287.

Court of Appeals of Michigan, Division No. 1.

March 1, 1974.

Released for Publication March 19, 1974.

Richard A. Monash, Detroit, for plaintiffs-appellants.

John A. Kruse, Harvey, Kruse & Westen, P.C., Detroit, for defendants-appellees.

Before McGREGOR, P.J., and J. H. GILLIS and O'HARA,* JJ.

McGREGOR, Presiding Judge.

This is an action for damage to property based on a third-party beneficiary contract theory. The defendants contracted with each other for construction of a water-in-take tunnel in and through the City of Lincoln Park. Construction was completed on October 18, 1960. In November, 1963, due to soil instability caused by the construction, cracks and other structural damage to the plaintiffs' residence first became apparent. Complaint was thereafter filed on December 1, 1965. An order dismissing that complaint, as barred by the statute of limitations, was entered on April 14, 1972, and the plaintiffs appeal as of right.

The statute of limitations is three years in all actions for injury to person or property, whether they sound in contract or tort. State Mutual Cyclone Insurance Co. v. O & A Electric Cooperative, 381 Mich. 318, 161 N.W.2d 573 (1968). In relevant part, M.C.L.A. § 600.5827; M.S.A. § 27A.5827 provides:

'Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues * * * at the time the wrong upon which the claim is based was done regardless of the time when damage results.'

Our Supreme Court has construed this to mean that, in the case of tortious injury to persons, 'wrong' meant 'actionable wrong' and accrued when injuries first became apparent. Connelly v. Paul Ruddy's Equipment Repair & Service Co., 388 Mich. 146, 200 N.W.2d 70 (1972). The same rule should apply to injury to property. To hold otherwise would transmute the statute from one of limitation into one of abolition. Since the damage in this case did not become apparent until over three years after completion of the tunnel, the plaintiffs' cause of action would then be destroyed before it arose. Such a result is not consonant with the legislative purpose of the statute.

Reversed.

* MICHAEL D. O'HARA, former Supreme Court Justice, sitting on the Court of...