*1 proper opinion) to jority jury for submission was questions principal Mr. Like the case. rejected colleagues in Banner Cooley his Justice Loomis v. Jenison, 48 Mich v. Tobacco Co. Township question Rogers Board, Mich 135, this law than of fact. On presented an rather issue jury’s affirmative answer thereto that account was nugatory. altogether ground I concur affirmance. above On J., concurred with Black, Kavanagh, sit. did not Souris, J., BAATZ SMITH. ROYSTON v. SAME. v. SAME. MIDDLETON Injuries Implied — — Actions Personal Con- Limitation 1. — tracts Torts. limiting 3-year the time within which an for statute brought applies person be actions all injury person whether based recover (CLS 1956, 609.13, implied tort subd contract or § Legislature. Supreme Court — 2. Statutes — Supreme apply is to Court statute’s clear The function application language, or not the matter whether being legis- injustice policy question works an statute and control. lative determination [1, [3] [2] Action 4] cluding 50 Am Am 29 Am Jur, Jur, Jur, References “injury Innkeepers Statutes Limitation of Actions ex contractu. person” 371. for Points 56. 1 ALR in statutes 103. 1313; Headnotes ALR 763. v. Smith. Innkeepers Explosion—Implied Contracts. — guest against inmkeepei fox paying by a All action disgruntled dynamite by explosion a former injuries due predicated cannot who had been evicted *2 warranty. implied theory liability under op Injuries Explosions—Inn- 4. — Limitation Actions —Personal keepers. Actions limitations, when the actions former by injuries disgruntled, plaintiffs, paying where accrued sustained commenced evicted (CLS when guests guest over 1956, dynamite were barred at defendants’ years following 609.13, was subd by exploded by statute hotel, time for Smith, Souris, JJ., Kavanagh, dissenting.
Appeal Wayne; Murphy (Thomas J.), from April (Docket 8, 'Submitted 41, 1960. Nos. 39, 40, 48,053.) Sep- Calendar Nos. 48,051,48,052, Decided tember Assumpsit Worley in 3 actions Baatz, Perlee A.
Boyston, against Middleton, all Jennie Charles A. Smith, Abraham J. and David B. Smith, Smith, doing per- & Co., business as A. Charles Smith for injuries guests sonal sustained in while defendants’ hotel. Declarations dismissed on motion. Plaintiffs appeal. appeal. Cases consolidated on Affirmed. plaintiffs.
1. Goodman Cohen, for Alexander, Cholette, Buchanan, Perkins & Conklin (E. D. counsel), Alexander, of for defendants. C. J. Plaintiffs commenced suits Dethmers,
.against hotelkeepers, defendants, in assumpsit, on personal injuries June damages and resultant April sustained on they 30,1954,while were paying guests in defendants’ hotel. al- Plaintiffs leged in their declarations that another, former of defendants’ hotel, who was a confirmed alcoholic, had been evicted disgruntled, therefrom, became har- 'Michigan grudge account,
bored on that had threatened jury hotel, and on one had set fire occasion it, all as that, on the or and' known; defendants knew should have
night question, dynamite he did cause explode injuring plaintiffs. in the hotel, granted The trial court defendants’ motions dis- ground by. miss on the that the actions were barred 3-year of limitations, 1956, 609.13, statute CLS Supp 2), (Stat subd 2 Ann 27.605, 1957 Cum subd as follows: reads damages per- “2. Actions to recover trespass upon property lands and actions son years brought ac- within 3 from time said shall not accrue, tions afterwards.” quoted statutory limita- Plaintiffs insist sounding only applies in tort not to actions tion brought assumpsit though even based to those well, constitute, claimed to which-are tortious acts a breach of *3 contract. plain- Inc., Hotel, 311Mich In v. Milner Coates years brought after than her cause more 3 suit,
tiff
against defendant hotel com-
accrued,
had
/of
charging
of that defend-
that, because
pany therein,
paying
in the
negligence,
she was
while
ant’s
by an intoxicated
entered
had been
room
her
hotel,
violently
her.
assaulted
The rele-
person who had
expressed
holding
is well
in that case
vant
syllabus,
follows:
reads as
which
fifth
limiting
3-year
the time within
statute
“The
brought
person
injuries injury for an
to recover
applies to all actions
negligence
arising
whether
based'
person
because
(CL
implied
as
1929, 13976,
tort
72).”
No
PA
amended
suggest
should be re-eval-
that Coates
Plaintiffs
only question is the mean-
The
overruled.
uated
express
statutory language.
in
It limits,
ing
71
v. Smith.
years,
dam-
plain
actions to recover
to 3
words,
person.
injuries
ages
Such was the nature
per-
statutory language
The
in
'the action Coates.
right
holding
the case. It was
no other
mitted of
then.
tort or
brought in
here, whether
so,
It still is. And
assumpsit,
dam-
to recover
these are
3-year
Accordingly,
injuries
person.
ages
applies.
statutory
application
limitation, as
Whether
ques
policy
injustice or not is a
Coates,
:in
works
legislative
and control. Our
tion for
determination
apply
language.
clear
function
the statute’s
Blessington
by plaintiff
New
are:
York cases cited
Corporation,
(111
McCrory
v.
305 NY
Stores
698);
Finestone,
Robins
NE2d
NY 543
37 ALR2d
(127
330);
NE2d
v. Health Insurance
Golia
(166
York,
Plan Greater New
questions of whether the causes of.' action did or did not negli arise out of defendants’ gence. Michigan presents statute no such -question, leaving these New York cases of scant as sistance to In us. accord with the view ex pressed in Coates are Farbach Chemical Co. v. Com mercial App Chemical (136 Co., Ohio NE2d 363); Seymour v. Union Co., News App 349 Ill (110 475); Strzelczyk NE2d v. Marki, 169 Cal App *4 (337 846); 2d 703 P2d and Katz v. Manhattan Gen App (156 eral, 2 302), Div 2d 876 NYS2d which hold pursued. immaterial the form of action Smith Management White Tower Corporation, 129 NYS 2d 545; and Moore v. (297 James, Utah 2d 91 P2d at
221), that, hold events, all such as these against innkeeper predicated cannot he on con- tract liability under the of theory implied warranty. of
Regardless as question discussion to whether an action is based on contract or tort from other question is not jurisdictions, under controlling our statute.
Affirmed. Costs to defendants. JJ., concurred Carr, Kelly, Black, Edwards, with C. J. Dethmers, {dissenting). 9 of Paragraph plaintiff’s Smith, declaration 0 as follows: states .amended “That at of, injuries plain- time of complained i tiff at a was a male of 57 week- years age employed defendants’' ly $82.50, and as a result of wage breach of loss of earnings, contract sustained bills, mental medical and underwent hospital curred $75,000.” sum of anguish, plaintiff’s damage pleader tells anguish, to mental reference The stating a cause of purpose for the “not 'us, is made showing for the purpose ex delicto necessi- subsequent damage contract breach hospitalization.” attention medical tating and pre- sought plead, short, plaintiff In trial, go if allowed prove, seek to will sumably of contract. a breach in personal resulted the breach
That for personal it into convert not does injury damages recover “actions to phrase injury. in our property,” appearing to person the com merely replace introduced was statute, actions, which were made designations mon-law (Stat Ann he noted PA quotation 1959 Cum the eases No Supp from the declaration were consolidated ch 27.605) 13, amended, appeal.—Reporter. CLS 1956, Baatz. 609.13 It *5 73 v. Smith. through adoption judicature the obsolete of 1915.2 the act following
The draftsmen of our statute, to some extent the model civil the New York code procedure, employed phrase this rather than designations, limiting common-law older cer phrase years. (Indeed, tain tort 3 employed recently proposed judi so revised act.4) they thereby any cature change But did not effect applicable
in the substantive law parties The actions. before a us have entered into according pleader. lawful contract, In return money agreed a sum of defendants to furnish plaintiff relationship tranquil lodging. a safe and inWhile this voluntarily (still
thus assumed follow ing declaration), the contract was breached plaintiff defendants. As a result of breach, had wages, his rest disturbed, lost and incurred bills. parties if had entered into no contract Now, these plaintiff whatever, could have sued defendants for injuries arising damages out explosion, provided duty show bomb he could regardless right He this of contract. breach. But just how defendants are able to convert the against of action based on the contrac- them, cause relationship, arising out its into breach, tual would have had if the cause of complete strangers, parties pletely I am been com- had county-fair follow. This law: unable you you don’t. it, now Now see baffling problem one of the most before us is legal problems. Prosser treats it in of the current Ann Reporter.] part 2, Proposed Civil Practice Act PA Compare Joint Committee § part 2, 27.651). Forms of NY Code of Procedure No Statutes and 314, See §49[6]). Sunderland, ch Action, Michigan Comments, pp 306, 14 Mich Rev 383. 1, [Clevenger’s Procedural Revision. Pinal amended, L Michigan (1877), Practice CL 1948, Judicature Act of 383(5) Manual, 611.1 (now Report, §49.— (Stat NY Contract,5
his on The Borderland of Tort and lecture pointing confusions, that the are riot of out particular depending upon the result often issue (change join of venue, limitations, before the court *6 cetera). parties, assignability, He of et obs der erves6 that—
“there
construed the
of the
of
in which
court has
are hundreds
cases
plaintiff’s complaint, and on the basis
allega-
presence
particular
of
or absence
some
emphasis
given
it,
to
or the
to have been
tion,
found
pleaded.
have held that
tort is
There is
contract or
unrewarding group
probably
decisions
of
no more barren and
They
to
found in the law.
turn almost
entirely upon
language,
of
details of
course
vary from case to case.”
justified.
are,
well
The criticism
a maze of
formalistic,
sterile, doctrinaire,
deed,
quasi-contract,
compli-
the more
contract, and
tort,
development of the
of the historical
cated because
Ludwig,
action.
Hart v.
[7] [8] 1 Randall v. CJS, Actions, M. M. Moen pat Co., Iowa [1323] (221 NW between orig- relation and innkeeper guest
“The in contract, gives inates but rise duties imposed for a of which the by law, breach duties an in tort.” maintain problem, our the statute respect particular With limitations, do have us action in tort we before or in contract? he is pleader relying insists so, truth, the in the action, contractual cause and reads, it hopeless rely upon declaration alone, unless the has come full circle wheel verbiage more, times, will once in lawsuits as medieval fall upon stand or the words in the writ. employed ' the in cause of should, determining We the allegations essential the examine pleaded, neither whole, stressing particular aas complaint taken out of cont allegations nor particular words pleaded cause of action If the substantial ext.9 follow. If action, the tort would toft a facts longer the If the rise period. give contract, reason, I see here, do no action, they must why has been defendants suggested, and none the of the shorter grace be accorded necessarily at the If we look fundamental issues un period. if we law, go rule of as we must are derlying it is clear grammarians, beyond province pecul law imposed innkeeper that the of care out of fact arising iar obligation has his defenses community strange traveler both has entrusted his down, speak, goods so well, to family, as and sometimes his person, his It of the inn.10 is for these the keeper the care of case, that, early reasons, Georgia and similar Hotels. cause versity Press, Tort,” particularly See Bonner See, generally, Winfield’s action.” v. Welborn, *8 London, Tagore Beale’s treatise pp 7 Ga 221 and under Law Leetures, title “The Province 307. 222, referring The Law published to the “substantial by Cambridge of the Law of Innkeepers Uni- Smith. taken them inn “the law has [inns court said the It is not to charge.” my mind, so keepers] strictly with such strictness charge deny consonant the of lim injured longer period allegedly when he chooses assert the contract, itations the Nor this view tort, remedy. rather than is as to to be period applied peculiar the innkeepers, law inns and despite unique appli its a matter thereto. As view cability fact, here taken is the more common application law innkeeper no. The defense of limita limitations, it tions is is never recognized, favored, by the if courts, and there doubt as to which of 2 limita periods tion applies, longer is generally used. 1 CJS, Actions, §
Here there are 2 substantial of action. one arises out of duty imposed by law upon those in the relation of Here the innkeeper-guest. con- tract pleaded merely the inducement. The other arises out of the breach of the care and shelter into, entered the obligation assumed. Here the contract is the gist action. That jury may be shown in order prove breach and damages does not convert the action to one “for” injuries. The substantial cause of action pleaded here is not for personal but for breach contract. such, As it is not barred lim- itations.
The order should be reversed and the case re- manded, with appellant. costs to
Kavanagh concurred JJ., with Souris, Smith,