Ziegler v. Predmore

• Decision Date: 07 January 1955
• Docket Number: No. 22,22
• Citation: 341 Mich. 639,68 N.W.2d 130
• Parties: Charles M. ZIEGLER, Highway Commissioner for the State of Michigan, Plaintiff and Appellant, v. Wayne Herbert PREDMORE, Donald Francis Reau, James McClain, I. J. Cousino and B. L. Cousino (whose first names are unknown but whose persons are well known), individually, and d/b/a I. J. and B. L. Cousino Trucking Company, a co-partnership, jointly and severally, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 130

68 N.W.2d 130

341 Mich. 639

Charles M. ZIEGLER, Highway Commissioner for the State of

Michigan, Plaintiff and Appellant, v. Wayne Herbert PREDMORE, Donald Francis Reau, James McClain,

I. J. Cousino and B. L. Cousino (whose first names are

unknown but whose persons are well known), individually, and

d/b/a I. J. and B. L. Cousino Trucking Company, a

co-partnership, jointly and severally, Defendants and Appellees.

No. 22.

Supreme Court of Michigan.

Jan. 7, 1955.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, Percival R. Piper, Asst. Atty. Gen., for plaintiff and appellant.

Lacey, Jones & Doelle, Detroit, for Donald Francis Reau, James McClain, I J. Cousino, and B. L. Cousino. Victor H. Hampton, Detroit, of counsel.

Burke, Burke & Smith, Ann Arbor, for Wayne Herbert Predmore.

Before the Entire Bench.

KELLY, Justice.

Plaintiff sought recovery of damages sustained May 12, 1948, when defendants' vehicles collided on Ball bridge, over Macon creek in Monroe county, 3 miles south of Milan, on US-23. A statement of claim was attached to plaintiff's declaration, as follows:

                "Cost of replacement of bridge  $ 4,160.00
                 Temporary structure, etc.        3,575.00
                 Maintaining detour               2,575.00
                                                ------------
                     Total                      $10,310.00."
                

The trial court refused plaintiff's offer of proof in regard to detour costs, relying on Jackson County Road Commissioners v. O'Leary, 326 Mich. 570, 40 N.W.2d 729.

Plaintiff introduced testimony showing that it would cost more to repair the bridge than to rebuild it, and that a new bridge of similar design could be built at a cost of $4,160.

During the introduction of proofs the trial court informed plaintiff that the proof of damage must meet the test as set forth in Jackson County Road Commissioners v. O'Leary, supra. At the close of proofs the court granted defendants' motion for directed verdict because plaintiff failed to meet the test above referred to.

The bridge was 52 years old at the time of the accident. It was a one-way bridge even though the highway approaching the bridge carried 'quite heavy' traffic, being the trunkline from Ann Arbor to Dundee and Toledo. A new bridge, adequate to meet present traffic demands, was built at a cost of $57,000. The exact location of the new bridge is not established in the record, but it appears that appellant not only decided to construct a different type of bridge but also to relocate it.

Plaintiff contends that 'all that was required of him was to prove either the cost of repairs or the value to the plaintiff' and 'that upon the proof of either the cost of repairs or the value to the plaintiff the burden of proceeding to show the lesser amount as the reasonable damage shifts to the defendant.' Plaintiff failed to introduce proof as to the value of the bridge to the plaintiff, only offering proof as to what it would cost to build a new bridge of similar design. The burden of proof was on the plaintiff and did not shift to the defendants.

The trial court was correct in his interpretation of Jackson County Road Commissioners v. O'Leary, supra, and in determining that 'the measure of damage recoverable by the plaintiff in this case would be the cost of the repair of the injuries to that bridge if the cost of the repair were not equal to or greater than the value of the bridge prior to the accident. If the cost is equal to or greater, then the amount recoverable is the value of the bridge prior to the accident.' Plaintiff did not establish the value of the bridge and did not prove damages. The trial court did not err in granting the motion of defendants for directed verdict in regard to plaintiff's claim for damages to the bridge.

The trial court in refusing to accept proof of costs of constructing and maintaining the detour stated: If I had been trying this case before the Supreme Court wrote the opinion [in] Jackson County Road Commissioners v. O'Leary, 326 Mich. [570, 40 N.W.2d 729], I would hold with you as it seems to me that (cost of constructing detour) is an element of damage.'

An examination of the record in the O'Leary case discloses that plaintiff did not sue for detour damages; that the question was not raised before the trial court and was not presented to this Court. There was no reference to a detour in the opinion, but there was a determination that proof of costs for building a temporary bridge would not constitute proof of value of the 48 year old damaged bridge. The trial court in the instant case was in error in concluding that this Court had passed on the question here presented, namely: Should defendants be held responsible in damage for the costs of a temporary detour caused by the tortious acts of defendants?

Appellee cites State v. F. W. Fitch Co., 236 Iowa 208, 215, 17 N.W.2d 380, 384, and quotes from that decision as follows:

'One element of appellees' claim was the cost of maintaining a detour while a temporary bridge was constructed. Appellees have appealed from the adjudication that such cost is not a proper element of damage. They cite no authorities in support of their contention and the proposition has never been determined by this court. Various expressions have been used by other courts in stating the amount allowable for damage to public bridges, such as cost of repairing, cost of rebuilding, amount necessary to repair or restore, expense incurred to rebuild and repair, amount necessary to restore to former condition. (Citing cases.)

'The question of the expense of maintaining a temporary detour was not considered in any of the foregoing cases except State Highway Comm. v. Stadler (158 Kan. 289, 148 P.2d 296), supra, which followed State Highway Comm. v. American Mut. L. Ins. Co., 146 Kan. 187, 70 P.2d 20, 22, in holding such expense was not allowable under a statute which allowed recovery for damages to the bridge itself. Likewise, under section 5035.24, Code of Iowa, 1939, hereinbefore set out in part, recovery is limited to damage to the highway or structure. Although that section does not govern this case it would seem desirable, from the standpoint of uniformity, that a like rule be here adopted.

'Under the circumstances we are constrained to hold that the cost of...