Racho v. City of Detroit
| Decision Date | 05 February 1892 |
| Citation | 51 N.W. 360,90 Mich. 92 |
| Court | Michigan Supreme Court |
| Parties | RACHO v. CITY OF DETROIT. |
Error to circuit court, Wayne county; GEORGE GARTNER, Judge.
Action by Julianna Racho, as administratrix of Andreas Racho against the city of Detroit. Judgment for defendant. Plaintiff appeals. Reversed.
William Look and H. F. Chipman for appellant.
John J. Speed, for appellee.
On the morning of the 25th day of June, 1889, Andreas Racho was thrown from his wagon while driving on Hastings street, in the city of Detroit, receiving injuries from which he died June 10, 1890. He presented a claim for damages before the common council of said city October 14, 1889, averring that his injuries were occasioned by the neglect of the municipality to keep the pavement of said street in good repair and in reasonable condition for public travel. The council took no definite action upon the claim in the life-time of Racho. This suit is brought by his wife as administratrix, and the declaration claims damages for Racho's injuries and death, to the plaintiff, as administratrix, "for the benefit of her, the said plaintiff, the wife of said Andreas Racho, deceased." Upon the trial the defendant objected to the giving of any proof under the declaration, for the reason that the laws of the state of Michigan do not embrace such an action as that brought by plaintiff in this suit. The court thereupon directed a verdict for the defendant.
The defendant contends that the act of 1887, providing for the recovery of damages sustained from defective highways, makes no provision for damages to the next of kin or the estate of a deceased person, which may be recovered by an administrator. This contention is founded on section 5 of said act, which reads as follows: "No township, village, or city in this state shall be liable in damages or otherwise to any person or persons for bodily injury, or for injury to any property, sustained upon any of the public highways, streets, bridges, sidewalks, cross-walks, or culverts in such townships, villages, or cities, except under and according to the provisions of this act, and the common-law liability of townships, villages, and cities in this state, for or on account of bodily injuries sustained by any person by reason of neglect to keep in repair public highways, streets, bridges, sidewalks, cross-walks, or culverts, is hereby abrogated." Act No. 264, Pub. Acts 1887, p. 346. Section 1 of the act relates to "any person or persons sustaining bodily injury" upon the public highway, etc.; and section 2 provides for a recovery for injury or damages to animals and vehicles.
Pub Acts 1887, p. 345. There is no express provision in the statute giving damages to any other person than the one receiving the bodily injury, nor is any authority given to the personal representatives or next of kin of such person, in case of death from such injuries, to sue for or recover any damages on account of such death. The defendant's counsel claim that the damages in this statute are limited to those sustained by the person injured, and are made payable to him; and, it being a new right of action, the remedy given is confined to the mode and person mentioned in the statute. Plaintiff's counsel claim to base her right of action upon the law of 1848, hereinafter mentioned, and also upon the law of 1885, by which it is provided that, "in addition to the actions which survive at common law, the following shall also survive, that is to say: Actions of replevin and trover, actions of assault and battery, false imprisonment, for goods taken and carried away, for negligent injuries to the person, and actions for damages done to real or personal estate." Pub. Acts 1885, p. 117; 3 How. St. p....
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