Trbovich v. City of Detroit, 17

• Court: Michigan Supreme Court
• Writing for the Court: BLACK; DETHMERS and KELLY, JJ., concurred with BLACK; SOURIS; Black; In summary, the case law of this State does not compel us to hold that one incapacitated by a municipality's tort from giving timely statutory notice of that tort is thereby preclud
• Citation: Trbovich v. City of Detroit, 378 Mich. 79, 142 N.W.2d 696 (Mich. 1966)
• Decision Date: 08 June 1966
• Docket Number: No. 17,17
• Parties: Rachel TRBOVICH by Nicholas Trbovich, Her Guardian, and John W. Dunwoodie, Plaintiffs and Appellants, v. CITY OF DETROIT, a Municipal Corporation, Defendant and Appellee.

Page 696

142 N.W.2d 696

378 Mich. 79

Rachel TRBOVICH by Nicholas Trbovich, Her Guardian, and John W. Dunwoodie, Plaintiffs and Appellants, v. CITY OF DETROIT, a Municipal Corporation, Defendant and Appellee.

No. 17.

Supreme Court of Michigan.

June 8, 1966.

Ellsworth K. Hanlon, Dearborn, for plaintiffs and appellants; James P. Tryand, Chelsea, of counsel.

Robert Reese, Corp. Counsel, Alfred Sawaya, Andrew E. Valenti, Asst. Corp. Counsel, Detroit, for defendant and appellee.

Before the Entire Bench.

BLACK, Justice (for affirmance).

Counsel for plaintiff-appellants have correctly stated the controlling question:

'Is a plaintiff, mentally and physically incapacitated as a result of injuries sustained because of a defective sidewalk, excused from giving written notice to the defendant city in the form and within the time specified in § 8 of chapter 22 of the general highway statute (Compiled Laws 1948, § 242.8, Mich.Stat.Ann. § 9.598)?'

Our answer is 'No.'

The statute under which this suit was brought (C.L.1948, §§ 242.1--242.8; amended by P.A.1951, No. 19) ¹ includes no clause exempting, or words importing legislative intent to exempt, persons under legal disability from performance of the requirement of timely statutory notice to the township, village, or city such persons would sue for bodily injuries sustained on public ways.

To what was written in Boike v. City of Flint, 374 Mich. 462, 132 N.W.2d 658, we add direct reference to section 5 of the statute (C.L.1948, § 242.5). That section pointedly declares that 'No township, village or city in this state shall be liable in damages, or otherwise,' to any person or persons for bodily injury sustained upon any of the ways of such township, village or city 'except under and according to the provisions of this act.' Such legislative declaration is clear. The courts may not fashion or manufacture ways or words to get around it without offense to that exalted principle of constitutional law which separates the judicial power from the legislative power.

In Davidson v. City of Muskegon, 111 Mich. 454, 69 N.W. 670, ² we held that a charter provision corresponding to the notice provisions of the statute could not be avoided even where the rights of an infant were involved. That principle must be applied here.

Affirmed, without an award of costs.

DETHMERS and KELLY, JJ., concurred with BLACK, J.

SUPPLEMENTAL OPINION OF JUSTICE BLACK:

This case, previously assigned to the writer, was submitted on briefs and arguments November 4, 1965. Pursuant to that assignment the above opinion for affirmance was submitted to the other Justices January 8, 1966. Since then Justice Souris' opinion for reversal, this supplemental opinion ¹ and Justice O'Hara's separate opinion for affirmance have been written and delivered to the other Justices.

Our delay of disposition is reflected causally by the following internal record of study and restudy, and submission of additional opinions, since the foregoing initial opinion was turned in:

February 8--case held for study or writing by Justice Souris.

February 23--Opinion of Justice Souris for reversal submitted.

March 8--Case held for study or writing by Chief Justice Kavanagh.

April 5--Case held for study or writing by Justice O'Hara.

April 25--Memorandum of Chief Justice withdrawing his 'hold' of case.

May 9--Supplemental opinion of Justice Black submitted.

May 10--Opinion of Justice O'Hara for affirmance submitted.

May 10--Case held for further study or writing by Justice Souris.

Ordinarily, in a situation of unresolvable discord like this, the dissident opinions go the blind round of our conference table. 'That's the way it is.' ² Here, however, it is imperative that something not visible in that opinion for reversal be brought to the fore, that is to say, reversal of the circuit court's judgment for the reasons proposed will amend retroactively much more of the statutory law than that which has been encompassed by the act under which this plaintiff sues. ³

By our votes for and against reversal of the circuit court's judgment we are due to amend retroactively, or refuse to amend at all, Two statutes rather than the One upon which plaintiff has planted her suit. Her cause allegedly arose in 1962, under a venerable statute as it stood that year (C.L.S.1961, § 242.1). Since then, by P.A.1964, No. 170, effective July 1, 1965, the legislature has expressly repealed that statute and has superseded it with another the entitled design of which is 'to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments,' etc.

The inevitable impact of a decision to reverse the circuit court's judgment for the reasons now proposed, especially upon sections 4 and 7 of the superseding statute, will be manifest to all who keep tab on the headlong trend of recent opinions handed down for cases wherein damages for personal injuries or death are sought. In furtherance of that trend a dual holding--unannounced--is actually proposed; that the legislative assembly of 1964 as well as the assembly of 1915 did not mean what was written into both statutes; that each assembly really meant to exempt claimants under legal disability from the condition of giving the timely written notice which section 8 of chapter 22 of the repealed statute required and section 4 of the new statute now requires.

Assuming that the Court is going to proceed Judicially, let it be noted that no one thus far (plaintiff's counsel and Justice Souris included) has alleged that there are words or phrases, or doubtful meanings of words and phrases, In any one of the 8 sections of the act under which plaintiff has sued, which might be regarded as hinting that a person under legal disability is exempt from the aforesaid requirement of timely written notice. This time, for certain, the legislative message As written provides no peg of ambiguity for the beret of anyone who bleeds freely for plaintiffs in civil cases and defendants in criminal cases. So for the first time in our books the profession is about to find written, not an affirmative finding of legislative purpose drawn from dubious meaning of statutory words and phrases but rather a negative Dixit of personal judicial belief, made up more than a half century after the fact, that the assembly of 1915 really 'didn't mean it'; also that such negative belief leaves the judicial branch free to write into the act affirmative words of exemption which the 1915 legislature chose not to insert or include. I for one will have no part in any such crude appropriation of legislative power, this being one sure instance where self-discipline as well as self-restraint is due judicial process.

True enough, the act as written was harsh and remained so in its application to claimants under legal disability while the 60 day period proceeds to its end. It may even be decried as 'barbarous,' that being the currently supplied reason for judicial amendment of those statutes which claimants of damages for personal injuries and death sue under and yet would avoid as to the restrictive parts thereof. Accepting all that, it is nonetheless true that the judicial branch is bound to apply plainly written statutes as they read, no constitutional question having been raised below. ⁴ And if by judicial edict that is no longer to be so, let the Court openly say so, and why.

All that is offered in support of this latest motion to amend a statute by judicial process is the mentioned statement of personal belief, spiced only by decisions picked and chosen from some other jurisdictions. To all this, hard fact that it may be for a possibly hard case, ⁵ the legislature has responded in simple English:

'Sec. 5. 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, crosswalks 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, village and cities of 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, crosswalks or culverts, Is hereby abrogated.' (C.L.1948, § 242.5).

And said section 8 concludes:

'The intent and purpose of the provisions of this chapter are to make the law of liability on the part of townships, villages and cities for injuries sustained by persons because of the defective condition of the highways And the procedure in giving notice thereof, uniform throughout the state, and to repeal all laws or acts of the legislature be the same general, local or special which are inconsistent with or contravening the provisions herein. All actions in court under this act must be brought within 2 years from the time said injury was sustained.' (C.L.1948, § 242.8).

The emphasis is that of the present writer.

No lawyer, conscious of and respectful for the constitutional inhibition (Const.1963, art. 3, § 2) and the applicable rule of construction (found with copious citation in City of Lansing v. Twp. of Lansing, 356 Mich. 641 at 648--650, 97 N.W.2d 804), could read this statute without concluding that it is the present duty of the Court, again as in the law case of Mercy Hospital v. Crippled Children Comm., 340 Mich. 404 at 408, 65 N.W.2d 838, to apply it as it reads 'without reference to equitable considerations.' As was written for the Court by then Associate Justice Kavanagh in the City of Lansing Case (356 Mich. at 649, 650, 97 N.W.2d at 809):

'No intent may be imputed to the legislature in the enactment of a law other than such is supported by the face of the law itself. The courts may not speculate as to the probable intent of the legislature beyond the words employed in the act.' ⁶

Surely, by this time,...