Morgan v. McDermott, 2
| Decision Date | 03 September 1969 |
| Docket Number | No. 2,J,2 |
| Parties | Merle MORGAN, Administrator of the Estate of Sharon Rose Morgan, Deceased, Plaintiff, v. Andrew J. McDERMOTT, Jr., and James Alan Coak, jointly and severally, Defendants and Third-Party Plaintiffs and Appellees, v. BOARD OF COUNTY ROAD COMMISSIONERS OF the COUNTY OF OAKLAND, Third-Party Defendant and Appellant. an. Term. |
| Court | Michigan Supreme Court |
Hartman, Beier, Howlett & McConnell, Pontiac, for appellees and third-party plaintiffs.
Patterson & Patterson, Barrett, Whitfield, Manikoff & White, Pontiac, (Gerald G. White and Robert G. Waddell, Pontiac, of counsel), for third-party defendant.
Before the Entire Bench, except T. G. KAVANAGH, J.
Plaintiff filed a complaint as administrator of the estate of Sharon Rose Morgan, deceased, who was killed on January 29, 1964, at the age of 12, while a passenger in an automobile owned and driven by Eva L. Balmer. The Balmer car collided with an automobile owned by defendant Andrew J. McDermott, Jr., and driven by defendant James Alan Coak.
On April 20, 1965, defendants moved to join the Board of County Road Commissioners of Oakland County as a third-party defendant. The third-party complaint alleged that the county road on which the accident happened was unsafe; that third-party defendant had knowledge of that fact but failed to take corrective action; and that its failure to do so contributed On May 24, 1965, third-party defendant filed a motion for accelerated judgment alleging that the first notice to it of any claim of defective highways and of the accident was the statements contained in the third-party complaint and that, as a consequence, the claim was barred because of failure to give notice pursuant to the requirements of C.L.S.1961, § 224.21 (Stat.Ann.1958 Rev. § 9.121). The trial court granted the motion and dismissed the third-party complaint.
to cause the accident. Defendants, as third-party plaintiffs, sought judgment against third-party defendant for contribution of one-half of any judgment against them. Defendants based their demand on the statute and court rule which permit one tort-feasor to add another tort-feasor as a third-party defendant in order to obtain contribution. C.L.S.1961, § 600.2925(1) (Stat.Ann.1962 Rev. § 27A.2925(1)); GCR1963, 204.1.
The Court of Appeals reversed and disposed of the case by holding that § 224.21 containing the 60-day notice requirement does not apply to an action for contribution between joint tort-feasors arising out of a wrongful death claim. 8 Mich.App. 260, 263, and 265, 154 N.W.2d 576.
Prior to the effective date of the Revised Judicature Act (January 1, 1963), the only remedy available to one joint tort-feasor against another was by chancery action for contribution (C.L.1948 § 691.564) taken in pursuance of P.A.1941, No. 303, being C.L.1948, § 691.561 [382 Mich. 343] et seq. See Husted v. Consumers Power Co. (1965), 376 Mich. 41 at 47, 135 N.W.2d 370. C.L.1948, § 691.561, supra, since repealed by RJA, reads as follows:
'Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment: Provided, however, That no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment.'
In Husted, this further statement appears (p. 47, 135 N.W.2d p. 372):
'The act of 1941 was changed in minor degree (to accommodate the new procedure only and not to change the substance) and re-enacted as section 2925 of the Revised Judicature Act of 1961 (C.L.S.1961, § 600.2925 (Stat.Ann.1962 Rev. § 27A.2925)).'
Section 2925 of RJA is as follows:
G.C.R.1963, 204.1(1) provides:
'Subject to the provisions of Section 3030 of the Insurance Code of 1956, before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff The Committee Comment which follows Rule 204 states:
to serve a summons and complaint upon a person not a party to the action who is or may thereafter be liable to such third-party plaintiff, by right of contribution or otherwise, for all or part of the plaintiff's claim against him.'
In Husted, supra, Rule 204 was declared not to create substantive rights. (p. 47, 135 N.W.2d 370). The substantive basis for defendant's claim against the third-party defendant must be found elsewhere before the rule becomes operative. (p. 47, 135 N.W.2d 370). The substantive rights and liabilities of parties to an action are determinable according to the law as it stood when the causes alleged by the plaintiff accrued. (p. 47, 135 N.W.2d 370).
The third-party practice introduced to Michigan by the Revised Judicature Act of 1961 and Rule 204 has no bearing on the decisional outcome of this case. The present statute (C.L.S.1961, § 600.2925 (Stat.Ann.1962 Rev. § 27A.2925)) governing contribution between joint tort-feasors still requires that a money judgment first be recovered before the right to contribution comes into existence. It makes no attempt to define a joint tort-feasor or what constitutes tortious conduct or who may or may not be liable for the commission of a tortious act. All that Rule 204 does is to permit adjudication of liability--such liability as may be found to exist elsewhere in the law--in one trial if the trial judge so orders. Consequently, in this case, if the third-party plaintiffs are to obtain contribution from the third-party defendant, they must look beyond the provisions of the RJA and the GCR as to contribution and establish a substantive basis for their cause of action by other means.
In 1893, the legislature, by Joint Resolution No. 11, proposed an amendment to the State Constitution to be known as section 49 of article 4. P.A.1893, p. 433. The amendment authorized the legislature to enact laws for the laying out, construction and maintenance of county and township roads on the condition that any act passed by the legislature for this purpose shall provide for a county and township system and The county system shall become operative only in such counties as shall adopt it by a majority vote of the electors. The proposed amendment was ratified by the people at the April election of 1893. P.A.1893, p. 451.
Subsequently, the legislature proposed a system of county and township roads by the passage of Act 149, effective May 26, 1893. Section 21 of the act (C.L.1897, § 4282) in part provided:
'The provisions of law respecting the 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 It was in this fashion that the statutory liability of a county that elected to adopt a county road system was created.
their control, Shall apply to counties adopting such county road system.' (Emphasis added.)
To determine that liability, it is necessary to examine the liability of townships, cities, villages, and corporations for damages for injuries resulting from a failure of performance of the duties respecting roads under their control. In 1893, this was prescribed by P.A.1887, No. 264, set forth as chapter 91, C.L.1897, being sections 3441 through 3445. Liability of townships, villages or cities for damages for bodily injury or injury to property sustained upon any of the public highways, streets, bridges, etc., Could only be established in accordance with the provisions of the act. By section 5 of the 1887 act, common-law liability was abrogated (C.L.1897, § 3445). Chapter 91 of C.L.1897 became chapter 22 of the General Highway Law. See C.L.1948, § 242.5.
In addition to the above statutory provisions as to liability, in Roberts v. City of Detroit (1894), 102 Mich. 64, p. 66, 60 N.W. 450, p....
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