Vill. of Portland v. Citizens' Tel. Co., No. 38.

CourtSupreme Court of Michigan
Writing for the CourtFELLOWS
Citation206 Mich. 632,173 N.W. 382
PartiesVILLAGE OF PORTLAND v. CITIZENS' TELEPHONE CO.
Decision Date17 July 1919
Docket NumberNo. 38.

206 Mich. 632
173 N.W. 382

VILLAGE OF PORTLAND
v.
CITIZENS' TELEPHONE CO.

No. 38.

Supreme Court of Michigan.

July 17, 1919.


Error from Circuit Court, Ionia County; Frank D. M. Davis, Judge.

Action by the Village of Portland, a municipal corporation, against the Citizens' Telephone Company, a Michigan corporation. From a judgment for defendant on a directed verdict, plaintiff brings error. Affirmed.

The plaintiff, village of Portland, has since 1896 maintained and operated an electric lighting plant. In 1902 the defendant Citizens' Telephone Company obtained from and accepted an ordinance of the village permitting the use of its streets and alleys for the purpose of erecting poles and stringing wires. Included in the ordinance were the following provisions:

‘During the construction of said telephone plant, which is to be erected in, along or over highways, avenues, streets and alleys in the said village, and especially during the placing of poles in the streets thereof, or the putting of conduit therein, the said Citizens' Telephone Company shall not unnecessarily impede public travel therein, and shall leave all highways, avenues, streets and alleys and public places upon which they may enter for the purpose herein authorized in as good condition as they were at the time of said entry and shall properly guard all work during the progress thereof, and shall put up and maintain red lights and barriers around excavations, and during the construction and maintenance of said plant, shall save the said village of Portland harmless from any cost, or damage to any person or property that may occur by reason of such construction. * * *

‘All wires entering any building or buildings shall be so trained and arranged as to cause the least possible obstruction, and in accordance with the best approved method as to safety from fire and other injury to person or property, and all poles shall be erected and wires strung therein in such a manner as not to interfere with the village fire-alarm telegraph wires or unnecessarily interfere with any other existing poles or wires.’

There is an alley in said village between Kearney and Grant streets extending north from Brush street. On and prior to April 21, 1909, both parties maintained their wires in this alley, plaintiff's being first in time of occupancy. The telephone wires crossed over the electric light wires and sagged to such an extent that it fairly appears that the wires on occasion came in contract and the insulation on the electric light wires became defective. On the last-mentioned date a high wind prevailed in the village of Portland; the electric lighting wire of the village, carrying a voltage of 2,000 came in contact with the telephone wire, causing the electric light wire to sever, and one of the ends thus highly charged dropped into Brush street. This live wire in some manner (there was no witness to the accident) came in contact with a young boy about 10 years old, named John Sykes, Jr., who was a pedestrian on Brush street, causing his death. His mother, learning of the accident, hurried to his assistance, and in attempting to extricate him, herself received a serious shock and other injuries. An action was brought in the Ionia circuit court by the administrator of the estate of John Sykes, Jr., against the village and telephone company jointly under the death act, and a judgment for $1,200 against both defendants was rendered. This judgment was affirmed by this Court. Sykes v. Village of Portland, 177 Mich. 290, 143 N. W. 326. An action was brought by Mrs. Sykes against both defendants in the same court, and a judgment in her favor for $6,000 was rendered. This judgment was reversed by this court for the erroneous admission of evidence but it was held that plaintiff had made a case for the jury. Sykes v. Village of Portland, 193 Mich. 86, 159 N. W. 325. A reference to these two cases will disclose more in detail the facts, and the plat found in the report of the first case will be of assistance in understanding the situation. The husband of Mrs. Sykes also brought an action against both defendants for the loss of his wife's services.

The telephone company paid the judgment rendered in the case brought by the administrator of the estate of John Sykes, Jr. After the reversal by this court of the case brought by Mrs. Sykes, all of the parties came to an agreement for the settlement of the then pending litigation. This agreement contemplated the discontinuance of the suit brought by Mr. Sykes, a judgment in favor of Mrs. Sykes for $9,000 without costs, a payment of this judgment in equal shares by the village and the telephone company without prejudice to their rights between themselves for contribution or indemnity, which was to be determined by future litigation between them, Mr. Sykes' suit was discontinued, a judgment in favor of Mrs. Sykes against both the telephone company and the village was rendered for $9,000; each of them paid $4,500 in satisfaction of the judgment, and this suit was brought by the village to recover the sum so paid, together with its expenses incurred by the litigation, aggregating about $3,500. At the close of the proofs the trial judge directed a verdict for the defendant, his reason being:

‘It has been held, I think by the verdict of the jury and judgment of this court, and of the Supreme Court in the first case I have cited, and by the judgment of the court in the second case, that these parties were each of them guilty of negligence, active negligence.

‘I shall hold in this case, and so instruct you, that the negligence complained of was concurred in by both parties; they became, in law, what is called joint tort-feasors, joint wrongdoers; that a contract between such parties where they concur and join in a wrong, as is done in this case and as has been judicially determined to produce an injury to a third person, is not enforceable. Therefore the plaintiff cannot recover upon this contract.

‘The whole subject of this matter has been adjudicated, as I have stated, and passed upon, and there ought not to be any contribution between these parties nor right to recover over, as both parties are shown to be joint wrongdoers.’

Argued before BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ.

[173 N.W. 383]

Nichols & Nichols, of Ionia (A. R. Locke, of Ionia, of counsel), for appellant.

Hawley & Eldred, of Ionia, for appellee.


FELLOWS, J. (after stating the facts as above).

That a distinction exists between active negligence and passive negligence must be recognized. Such distinction has been recognized by this court, as we shall presently see. It is not important that such terms be expressly used; frequently the terms ‘positive tort’ and ‘negative tort’ are used to denote the distinction. It must also be recognized as a general rule that where the wrongful act of one results in liability being imposed on another, such other person may have indemnity from the person actually guilty of the wrong. And

[173 N.W. 384]

it must also be recognized that this rule is subject to the exception or to another general rule that as between actual joint tort-feasors, parties in pari delicto, the law will not enforce contribution or indemnity. The important questions presented upon this record are: What are the rights of these parties as between themselves under these rules; into which class does the negligence of the plaintiff as alleged and proven fall?

Illustrative of the class of cases where the right to recover over has been sustained will be found Anderson v. Grant, 114 Mich. 161, 72 N. W. 144;City of Detroit v. Grant, 135 Mich. 626, 98 N. W. 405;Grant v. Maslen, 151 Mich. 466, 115 N. W. 472,16 L. R. A. (N. S.)...

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29 practice notes
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...p. 2713; 45 C.J., pp. 653-654; Glappa v. Bloomer, 146 N.W. 134; Detroit Co. v. Bloomer, 160 N.W. 542; Village v. Citizens Tel. Co., 173 N.W. 382; Eastern Tex. Elec. Co. v. Joiner, 27 S.W. (2d) Smith B. Atwood, William F. Coyle, James A. Waechter and Frank P. Aschemeyer for Southwestern Bell......
  • United States v. Acord, No. 4694.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 8, 1954
    ...Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 52 A.2d 862, 865-866; Village of Portland v. Citizens' Telephone Co., 206 Mich. 632, 173 N.W. 382, 384, 385; North Carolina Electric Power Co. v. French Board Mfg. Co., 180 N.C. 597, 105 S.E. 394, 396-398; Central of Georgia Ry. Co......
  • Hardy v. Monsanto Enviro-Chem Systems, Inc., ENVIRO-CHEM
    • United States
    • Supreme Court of Michigan
    • August 23, 1982
    ...to passive, negligence in suits between tortfeasors seeking indemnity. Village[414 Mich. 88] of Portland v. Citizens Telephone Co., 206 Mich. 632, 173 N.W. 382 (1919); Detroit, G. H. & M. R. Co. v. Boomer, 194 Mich. 52, 160 N.W. 542 (1916). In the Portland case, a young child was severely i......
  • Duncan v. Beres, Docket No. 1797
    • United States
    • Court of Appeal of Michigan (US)
    • December 31, 1968
    ...§ 81 et seq.; Ellis v. Phillips (1961), 363 Mich. 587, 598, 110 N.W.2d 772. 4 Village of Portland v. Citizens' Telephone Co. (1919), 206 Mich. 632, 636, 173 N.W. 382; Township of Hart v. Noret (1916), 191 Mich. 427, 432, 158 N.W. 17, L.R.A.1916F, 83; Hoek v. Township of Allendale (1910), 16......
  • Request a trial to view additional results
27 cases
  • Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., No. 34562.
    • United States
    • United States State Supreme Court of Missouri
    • March 18, 1936
    ...p. 2713; 45 C.J., pp. 653-654; Glappa v. Bloomer, 146 N.W. 134; Detroit Co. v. Bloomer, 160 N.W. 542; Village v. Citizens Tel. Co., 173 N.W. 382; Eastern Tex. Elec. Co. v. Joiner, 27 S.W. (2d) Smith B. Atwood, William F. Coyle, James A. Waechter and Frank P. Aschemeyer for Southwestern Bell......
  • United States v. Acord, No. 4694.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 8, 1954
    ...Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 52 A.2d 862, 865-866; Village of Portland v. Citizens' Telephone Co., 206 Mich. 632, 173 N.W. 382, 384, 385; North Carolina Electric Power Co. v. French Board Mfg. Co., 180 N.C. 597, 105 S.E. 394, 396-398; Central of Georgia Ry. Co......
  • Hardy v. Monsanto Enviro-Chem Systems, Inc., ENVIRO-CHEM
    • United States
    • Supreme Court of Michigan
    • August 23, 1982
    ...to passive, negligence in suits between tortfeasors seeking indemnity. Village[414 Mich. 88] of Portland v. Citizens Telephone Co., 206 Mich. 632, 173 N.W. 382 (1919); Detroit, G. H. & M. R. Co. v. Boomer, 194 Mich. 52, 160 N.W. 542 (1916). In the Portland case, a young child was severely i......
  • Duncan v. Beres, Docket No. 1797
    • United States
    • Court of Appeal of Michigan (US)
    • December 31, 1968
    ...§ 81 et seq.; Ellis v. Phillips (1961), 363 Mich. 587, 598, 110 N.W.2d 772. 4 Village of Portland v. Citizens' Telephone Co. (1919), 206 Mich. 632, 636, 173 N.W. 382; Township of Hart v. Noret (1916), 191 Mich. 427, 432, 158 N.W. 17, L.R.A.1916F, 83; Hoek v. Township of Allendale (1910), 16......
  • Request a trial to view additional results
2 firm's commentaries
  • An Introduction To Indemnity Law
    • United States
    • Mondaq United States
    • August 17, 2021
    ...opinion of the Court of Appeals, issued April 3, 2014 (Docket No. 310026), p 3. 9. Portland v Citizens' Telephone Co, 2016 Mich 632, 636; 173 NW 382 (1919); Williams v Unit Handling Sys Div of Litton Sys, Inc, 433 Mich 755, 760; 449 NW2d 669 10. Hill v Sullivan Equip Co, 86 Mich App 693, 69......
  • An Introduction To Indemnity Law
    • United States
    • Mondaq United States
    • August 17, 2021
    ...opinion of the Court of Appeals, issued April 3, 2014 (Docket No. 310026), p 3. 9. Portland v Citizens' Telephone Co, 2016 Mich 632, 636; 173 NW 382 (1919); Williams v Unit Handling Sys Div of Litton Sys, Inc, 433 Mich 755, 760; 449 NW2d 669 10. Hill v Sullivan Equip Co, 86 Mich App 693, 69......

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