Moyses v. Spartan Asphalt Paving Co., 10

• Decision Date: 12 March 1970
• Docket Number: No. 10,10
• Citation: 383 Mich. 314,174 N.W.2d 797
• Parties: Gorman MOYSES, Plaintiff-Appellee, v. SPARTAN ASPHALT PAVING COMPANY, a Michigan Corporation, Defendant and Third Party Plaintiff-Appellant, v. RUSS ZUKER TIRE SERVICE, INC., and Michelin Tire Corporation, Third Party Defendants-Appellees. Doreen MOYSES, Plaintiff-Appellee, v. SPARTAN ASPHALT PAVING COMPANY, a Michigan Corporation, Defendant and Third Party Plaintiff-Appellant, v. RUSS ZUKER TIRE SERVICE, INC., and Michelin Tire Corporation, Third Party Defendants-Appellees.
• Court: Michigan Supreme Court

Page 797

174 N.W.2d 797

383 Mich. 314

Gorman MOYSES, Plaintiff-Appellee, v. SPARTAN ASPHALT PAVING COMPANY, a Michigan Corporation, Defendant and Third Party Plaintiff-Appellant, v. RUSS ZUKER TIRE SERVICE, INC., and Michelin Tire

Corporation, Third Party Defendants-Appellees.

Doreen MOYSES, Plaintiff-Appellee, v. SPARTAN ASPHALT PAVING COMPANY, a Michigan Corporation, Defendant and Third Party Plaintiff-Appellant, v. RUSS ZUKER TIRE SERVICE, INC., and Michelin Tire

Corporation, Third Party Defendants-Appellees.

No. 10.

Supreme Court of Michigan.

March 12, 1970.

Foster, Campbell, Lindemer & McGurrin, Lansing, by John L. Collins, Lansing, of counsel, for defendant and third-party plaintiff-appellant.

Glassen, Parr, Rhead & McLean, Lansing, for plaintiffs-appellees.

Fraser, Trebilcock, Davis & Foster, Lansing, for third-party defendant-appellee Michelin Tire Corp.

Before the Entire Bench.

BLAKC, J.

These suits, pending now in the Ingham circuit, started out as actions for negligence. Plaintiff Gorman Moyses' suit arose out of a head-on collision of primary defendant Spartan's dump truck with his Willys station wagon. ¹ The right of action pleaded by him accrued in 1965. The present appeal being here upon pleadings only, we observe from the face thereof that there can be little question of primary liability of primary defendant Spartan to Mr. Moyses. Certainly there can be no question of contributory negligence, there being no presentment in any pleading of that affirmative defense. See GCR 111.7.

Primary defendant Spartan's truck, proceeding west on the right side of Lansing's four-lane paved Saginaw street, veered to the left side of the street, where it collided with the station wagon. The collision was caused, according to Mr. Moyses' complaint, by negligence of Spartan and its driver alleged as follows:

'a. That said vehicle was operated upon the highways of this State at a speed in excess of the posted speed limit and at a speed greater than reasonable and proper having due regard to the traffic, surface and width of the highway and the other conditions of the highway then existing, contrary to the provisions of the Statutes of the State of Michigan thereunto pertaining being section 9.2327, Michigan Statutes Annotated.

'b. That said motor vehicle was operated then and there recklessly and carelessly and heedlessly, in willful and wanton disregard of the safety of others, and without caution and due circumspection contrary to section 9.2326 of the Michigan Statutes Annotated, said motor vehicle being driven across the center line of said highway and into the motor vehicle of the plaintiff.

'c. That in violation of the common law rules of the road, said motor vehicle was being operated at the time and place with defective tires, which tires, among other causes, caused said motor vehicle to go across the center line and into the path of the vehicle of the plaintiff.

'd. That contrary to the provisions of section 9.2405 of Michigan Statutes Annotated, the said motor vehicle of the defendant was operated without brakes adequate to prevent it from colliding with the vehicle of the plaintiff and with brakes insufficient to prevent it from being operated across the center line of the highway when cause arose for the application of brakes to stop said vehicle.

'e. That said motor vehicle of the defendant was operated in a defective mechanical condition causing the front axle of said vehicle to break loose and to cause the motor vehicle of the defendant to come across the highway and into the vehicle of the plaintiff, all contrary to the common law rules of the road.'

On the other hand, according to Spartan's original and proposed third-party complaints, the collision was caused exclusively by a blowout of the left front tire of its dump truck; a tire Spartan charges was defectively manufactured in France with right of full or contributory recovery over as against the hitherto summoned third-party defendants plus the 2 additional third-party defendants Spartan seeks now to implead pursuant to GCR 1963, 204.1. Whatever the cause or causes of the collision, Mr. Moyses has long since been entitled to have his pleaded right tried to judgment. When and if the allegations of his now more than 3 year old complaint arrive at the opportunity of proof at trial, it appears from that complaint that he was very seriously injured with manifest permanent result.

Primary defendant Spartan's first third-party motion, designed as it was to implead present third-party defendants Russ Zuker Tire Service, Inc. and Michelin Tire Corporation, was granted. Then, among other pleadings, depositions, interrogatories, motions, etc., came these additionally potent paralyzers of otherwise promptly administrable justice:

The filing of third-party defendant Russ Zuker's answer to complaint and its cross-claim against third-party defendant Michelin Tire Corporation; the filing of an amended third-party complaint by primary defendant Spartan against third-party defendants Russ Zuker and Michelin Tire Corporation; the filing of third-party defendant Michelin Tire Corporation's answer to primary defendant Spartan's amended third-party complaint against it and, finally, the filing by primary defendant Spartan of a motion for leave to implead additional third-party defendants identified as the Michelin Corporation (of New York) and a French corporation identified as Manufacture Francaise Des Pneumatiques Michelin. With this motion primary defendant Spartan tendered its 'Second Amended Third-party Complaint.'

The last complaint is the one we are called upon to examine for service under Rule 204. Therein primary defendant Spartan alleges that it bought from third-party defendant Russ Zuker, 'one month prior to the accident complained of,' a Michelin tire which was then installed on the left front wheel of its dump truck; that the tire was manufactured defectively by the French corporation and distributed by the Michelin Corporation to present third-party defendant Michelin Tire Corporation, and from the latter to present third-party defendant Russ Zuker. This last third-party complaint concludes:

'Wherefore, defendant and third-party plaintiff prays for a judgment against third-party defendants for any and all amounts which plaintiff Gorman E. Moyses may be found entitled to recover against defendant and third-party plaintiff, or in the alternative, a judgment for a pro-rata contribution by third-party defendants to any judgment which plaintiff may recover against this defendant and third-party plaintiff.'

Primary defendant Spartan's motion for such additional impleader came to submission and denial in June of 1968. No formal opinion was filed by Judge Warren in circuit. His order denying leave recites and concludes:

'This matter having come before the court on motion of Spartan Asphalt Paving Company, defendant, for leave, as third-party plaintiff, to serve a summons and complaint upon Michelin Corporation (a New York corporation) and Manufacture Francaise Des Pneumatiques Michelin (a French corporation)--said motion being based upon GCR 204 and MSA 27A.2925; the court having reviewed said motion together with the pleadings in opposition thereto and heard oral arguments thereon, from which it appears that this case was commenced December 30, 1966; that this motion was filed March 6, 1968 and argued April 13, 1968; that the motion is based upon a claimed 'blow out' of a tire--a theory not conceded by the other parties; that serious problems of obtaining service may result if the motion is granted; and that delay of trial will likely result if the motion is granted; therefore it is

'Ordered, that the motion to add the parties named be, and the same is, denied.'

Application of primary defendant Spartan to the Court of Appeals, for leave to review Judge Warren's order, resulted in an order of denial 'for lack of merit in the grounds presented.' Judge Levin dissentted. His one-sentence dissent called attention (without comment) to Professor Hawkins' recent 'Practice Commentary' (33 M.C.L.A. § 600.2925, p. 780) and advocated grant of the requested leave to implead, 'the trial judge not having refused to grant leave on the ground of inexcusable delay and such delay not appearing in the record.' June 4, 1969 we granted primary defendant Spartan's application for leave to appeal.

First: The Question of Judicial Discretion.

Involved here is an upthrust question of construction and application of the second sentence appearing in section 2925 (C.L.S.1961, § 600.2925):

'Joint tort-feasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution.'

By brief and oral argument primary defendant and appellant Spartan insists that it has an Absolute right to the impleader sought by it as against the Michelin Corporation and the French corporation; that otherwise its alternatively asserted right to contribution as against the two will be lost. For a number of reasons, now to unfold with detail, we do not agree.

In the first place the question of grant or denial of a motion to implead, under Rule 204.1, depends not upon substance but upon judicial discretion; a discretion certainly not abused here. In the second place the trial judge's determination that primary defendant Spartan's motion to implead should be denied was right for 2 good reasons, that is to say, the motion and proffered third-party complaint fail to show or plead sufficiently:

(a) That the two newly identified corporations are or could be, with primary defendant Spartan, joint tortfeasors within R.J.A. § 2925 (C.L.S.1961, 600.2925), and

(b) that third-party process issued by the Ingham county circuit court, when and if served upon the French corporation, would confer jurisdiction on that court to proceed as against that corporation.

We have said that Spartan was not possessed of a right, under section 2925 and Rule 204, to...