Renackowsky v. Board of Water Com'rs of City of Detroit

• Decision Date: 23 January 1900
• Citation: 122 Mich. 613,81 N.W. 581
• Parties: RENACKOWSKY v. BOARD OF WATER COM'RS OF CITY OF DETROIT.
• Court: Michigan Supreme Court

81 N.W. 581

122 Mich. 613

RENACKOWSKY v. BOARD OF WATER COM'RS OF CITY OF DETROIT.

Supreme Court of Michigan

January 23, 1900

Error to circuit court, Wayne county; Charles H. Wisner, Judge.

Action by August Renackowsky against the board of water commissioners of Detroit. From a judgment for defendant plaintiff brings error. Reversed.

Act 1895 is entitled 'An act to amend section sixty-one of chapter seven and section forty-four of chapter eleven and to add a new section to chapter eleven and a new section to chapter thirteen of an act entitled 'An act to provide a charter for the city of Detroit and to repeal all acts and parts of acts in conflict therewith.'' To chapter 11 was added section 46, providing a limitation to actions for a negligent injury, which section appellant contended was void as violating Const. art. 4, � 28, providing that no new bill shall be introduced in the legislature after the first 50 days. Such provision was added to the original bill after the expiration of such period, and enlarged its title so as to include other and different legislation.

Brennan, Donnelly & Van De Mark (Selling & Hatch of counsel), for appellant.

Arthur Webster (Charles Flowers and C. D. Joslyn, of counsel), for appellee.

MONTGOMERY J.

The plaintiff brought this action to recover for injuries sustained by reason of the negligent act of defendant in the year 1893. The suit was instituted in December, 1897. To a declaration setting up the facts the defendant interposed a demurrer, setting up a statute of limitations as to such actions, enacted in 1895, and in effect September 1, 1895. By stipulation, the plaintiff amended his declaration, setting up as reason why the statute of limitations had not run the following facts: '(1) That the said defendant recognized the fact that the plaintiff had a cause of action against the said defendant, and by reason of said recognition plaintiff was induced to permit the time to pass in which the statute provides that suit shall be brought against said defendant. (2) The said defendant from time to time made payments to plaintiff in consideration of his cause of action, which payments continued until November 1, A. D. 1897. (3) That the said defendant, before the time limited for bringing suit against it had run, adopted a resolution in which it was resolved that said plaintiff should receive his full pay as long as he was disabled, regularly, whether he worked or not. (4) That said defendant, upon the 20th day of November, A. D. 1897, declined to pay plaintiff his said claim, assigning various reasons, but not stating as one of its reasons that the claim was barred by limitation. (5) That the entire course of conduct of the defendant has been such as to render it unjust and inequitable; that the said limitation should be set up as to the defense of this action.' No further pleading was filed, but the demurrer was treated as directed to the amended declaration. The case proceeded to hearing on demurrer, and judgment passed for defendant. Plaintiff brings error.

Three questions are raised: (1) Can the question upon which the case turned be raised by demurrer? (2) If it can, is the statute constitutional? (3) If both of the foregoing questions are resolved in the affirmative, has the defendant estopped itself from relying upon the statute?

The general rule is that the statute of limitations must be pleaded, and that the defense cannot be raised by demurrer. 13 Enc. Pl. & Prac. 200. It is stated by defendant's counsel that in this case all the facts relied upon by the plaintiff to establish an estoppel to plead the statute of limitations were set up in the declaration as amended. The plaintiff's counsel did not concede this, and, as the plaintiff was not bound to set up these facts in the first instance (Dean v. Crall, 98 Mich. 591, 57 N.W 813), we do not feel justified in departing from the practice, and determining the case on de...