Husted v. Consumers Power Co.

Last. Meirthew 41 1965] v. the Court. Landscaping Gallo and Joe Bono G-allo James d/b/a Company.” judgment rightfully en- court’s The circuit assignments garnishee’s of er- tered as plaintiff. affirmed,with costs ror. It is J., T. C. M. Kayanagh, Kelly, Dethmers, concurred. JJ., Adams, Souris, Smith, O’Hara, POWER COMPANY. HUSTED CONSUMERS COMPANY v. CONSUMERS POWER HERTEL-DEYO COMPANY. op ti-ie

Decision Court. -Third-Party Rules. 1. Parties — Procedure —Court may bring in a third- providing a defendant The eourt rule plaintiff byan parte motion notiee party ex defendant defendant, rights principal in the not create substantive does be found claim must the substantive basis for defendant’s operative (GCR 1963, 204). before the becomes elsewhere rule [2] [3] [4, [5, 8,11, ^{[7] [1] [9] [10] [12]} [14,15] Right Effect 6] 27 Am killed workman. 18 Am Jur conduct, 50 1 Am Jur 39 Am tortfeasor demnified 18 Am Jur 58 Am 27 Am 39 Am of tortfeasor Am of workmen’s Jur, Jur, Jur, or Jur, Jur, 2d, References to recover 2d, gross negligence. 88 Indemnity Parties Jur, Statutes Am 2d, Actions one Indemnity Workmen’s Contribuution Contribution Jur, Parties §§ guilty guilty § ALR2d 977. Workmen’s compensation §§ 84 et § contribution §§ for Points 58 et §§ of intentional Compensation seq. 16-19. 296. seq. 19. § §§ only ordinary negligence 33 41-43. Compensation ALR2d et act from seq. Headnotes wrongdoing, 1355. et seq. et wanton third-person seq. injured to be mis- in- Bights. Controlling Law —Substantive 2. Action — rights parties to an action are and liabilities The substantive according law as it when the causes determinable stood alleged by plaintiff accrued. Remedy—Torts. 3. Contribution — way only remedy by joint to of The available a tort-feasor is chancery statute, pursuance for taken in of action contribution no tort-feasors where there is contractual relation between the seq.). (CL 691.561 et § Indemnity and Servant. —Torts—Master 4. negligence operator’s was aetive elec- crane Allegation that an negligence passive not frame issue company’s was did tric indemnity, a presence of of contract for determination operator indemnity right from the crane a to or of tort-created plain- might pay company latter have to for sums to the electric injured operator, was- tiff, employee an of who when the crane company’s wires. into the crane came contact with electric Compensation. and Servant —Workmen’s 5. Same —Master joint tort-feasors would not be were defendants The fact that them, pro- employer plaintiff, of the strip 1 of of sufficient by requiring compensation act such the workmen’s tection of joint in the indemnify tort-feasor absence employer the other indemnity (CL 1948, them relative to a contract between 411.4). § 6. Same —Torts. tort, contribution, unlike is available Indemnity arising from to, does, only party appealing therefor is able when -the personal fault. part from prove freedom his plead op Doctrine. Same —Basis that, indemnity proposition rests the The doctrine money justice ought compelled pay which another one is may paid so pay, former recover of the latter the sum wrongful making payment is barred unless the one of his conduct. nature Remedy. Compensation Workmen’s —Exclusive Recovery compensation benefits under the workmen’s workmen’s compensation remedy employee aet is the exclusive 411.4). employer against (CL § 9. Statutes —Intent. properly Legislative of a statute is determinable what intent might appear at the time enactment rather than what century half later. a IIusted Power Compensation. 10. Contribution —Workmen’s compensation destroyed The workmen’s act the cause for con- third-party plaintiff tribution claimed employer from the employee third-party plaintiff sued whose (CL 1948, 411.4). Compensation Liability 11. Workmen’s —Torts—Joint of Third Party. injured against employee The claim of an his for work- injury solely statutory conneeted benefits and the work- compensation act, providing remedy men’s against the exclusive employer, bars becoming joint the latter from tort-feasor subject indemnity plaintiff to contribution or to a employee recovery damages whom seeks injuries (CL 1948, 411.4). inflicted 12. Contribution —Joint Tort-Peasors. providing joint act for contribution between tort-feasors is applicable only liability injured where there common is a to an person tort, being of contribution a derivative right arising from liability the common of the tort-feasors to judgment suffer adverse at injured person the instance of the (CL 1948, 691.561-691.564). §§ Judgment. Judgment Summary 13. — defendant, employer injured Third-party plaintiff, of was entitled summary primary dismissal of third-party defendant’s com- plaints, compensation provides the workmen’s since act for the remedy injured employee may an against exclusive have his employer (CL 1948, 411.4; 1963, 117). GCR Separate Opinion.

Black, J. Thikd-Party 14. Parties — Procedure —Discretion of Court. impleading third-party grantable Motions are not for defendant (GGB 1963, as a matter casual 204.1\T\). course of Third-Party 15. Same — Procedure —Discretion of Court. discretionary implead third-party denial a motion to of rights leaves all substantive intact advancement defendant when, for all, by payment at the movant is hurt or loss some if of property (GGB 1963, other %04.1\1\). Appeals (Donald from Midland; E.), Holbrook J. Submitted 8, (Calendar 10, 1965. April Nos. 50,772,

Docket Nos. Decided June 50,773.) against by A. Husted Consumers Claude Case personal corporation, Company, for a Maine Power equipment injuries construction sustained voltage high lines. Derivative with came contact companionship Husted for loss action Marie and consortium. Michigan corporation, Hertel-Deyo Company, a third-party cases. Com- in both defendant added plaintiff, by third-party plaints Power Consumers third-party Company, defendant, Hertel- principal plaintiff, Deyo Company, claiming injuries negligence cause of its paid by any, asking judgment, Motion it. if Hertel-Deyo Company, third-party defendant, judgment summary dismissal denied. Third- appeals. party Reversed remanded defendant complaints. third-party for dismissal Majoros Harrigan Cicinelli, Mossner, & plaintiffs Balter, for Husted. Balter & Harvey (Carl Smith, Sr., H. Smith, Brooker & third-party plaintiff counsel), Smith, and M. J. Company. Power Dykema (David Swets, W. McDonald, Anderson & Hertel-Deyo counsel), for defendant Company. of our new rules of court One Per Curiam. “Third-Party properly It Practice.” is cited

headed auspices appellant 204. Under its as GCR Hertel-Deyo, employer plaintiff A. Claude Husted personal up of sustenance the latter of time parte injuries upon was declares, which drawn ex he county these consolidated Midland lawsuits. into Hertel-Deyo promptly summary for moved dis- primary third-party defendant’s com- missal of plaints granted, leave reviews an order and, Husted Power Consumers the Court. quoted denying said motion. The order denial full, infra. Plaintiff A. Husted declared under Claude (PA [CLS 1961, No 155 amendment 17.189]) pri- against Ann Kev 413.15; Stat injuries mary personal defendant Consumers during of his 3, 1959, sustained December the course Hertel-Deyo. Husted, wife work for Plaintiff Marie plaintiff Claude, declared Consumers companionship of consortium and occasioned loss by injuries. the same The suits were commenced 13,1962. November allege plaintiff that A.

The declarations Claude working at the of an excavation Husted bottom purpose constructing bridge ; made for the a new required lowering the work mixed buckets by op- cement to him means of an crane overhead spec- employee; erated a fellow that on account of negligence ified acts of defendant “the Consumers crane boom came into contact with some electrical poles, operated, apparatus, wires and con- owned, trolled and [Consumers]; maintained defendant” that the overhead wires and thus owned maintained negligently energized were both negligently maintained and, on account of such con- electrically tact, that he was shocked to unconscious- injured. severely ness third-party complaints allege duty of third-

party Hertel-Deyo defendant and breach of such duty operation “in boom, of said crane, prevent coming bucket so as the same from with the electric lines contact of the said defend- third-party plaintiff prevent injury so ant as to persons project in and about the construction in- cluding plaintiff, Claude A. Husted.” Such complaints go allege purely on to Mich 41. op Opinion the Court. judg- entry of in the event

legal that, conclusion plaintiffs “against and the defendant for the ments third-party defendant third-party plaintiff,” the indemnity principles otherwise, would, “on third-party to this defendant liable therefor be plaintiff.” Hertel-Deyo implead granting leave to Orders having third-party latter entered, the defendant assigning summary failure of dismissal moved third-party plaintiff state, in the the upon complaints, relief be which could claims Judge granted. supported motion. Plaintiffs the difficulty faced it. of decision denied The Holbrook judge highlighted unusual and now is provisos judge, appear upon which, insistence in such order: hereby “It that said motions be and ordered, is hereby provided, if denied; however, same are Hertel-Deyo Company to be is found the defendant judgment

negligent and a matter, in the of this trial Hertel-Deyo Company, is rendered liability Hertel-Deyo of the defendant amount of Company plaintiff the defendant to the Con- and/or Company, by right contribution, Power sumers not excess indemnification, otherwise, or shall be compensation benefits amount workmen’s payable plaintiff, paid at the time such provided, judgment rendered; however, if Hertel-Deyo Company for itself and defendant compensation behalf of workmen’s carrier its any will file in said cause disclaimer paid compensation paid to be reimbursement for plaintiff for sum- Husted, A. said motion Claude may mary judgment be and to dismiss then renewed granted.” and will be question brought to review is whether

The decisive complaints third-party plaintiff’s state causes Power v. Consumers Husted the Court. they which, granted. do may We hold relief not. preliminary in order. are observations Some Honig- specific comment reference made

first is third-party appended to the have & Hawkins man rule. (1 Honig- agree They say and we rule, Michigan Annotated, Rules Court Hawkins, man and 508): p rights. create substantive does not 204 “Rule against claim for defendant’s basis

The substantive the before be found elsewhere must be defendant may operative. That basis becomes the rule indemnity, subrogation, principles in found right.” warranty, other substantive contribution, rights lia The next is that the and substantive present parties prop all are determinable bilities erly according to the law it stood when the causes as plaintiffs

alleged in 1959. At the two accrued quite equity and from the remedies aside time, yet provides provided (and despite then “merger” equity)1 of law for reimbursement, indemnity (see subrogation, au exoneration, and Co., in Wall thorities considered Hack v. Concrete 118 at v. 123-126; 350 Mich Hack Investment Co. Co., 416, 421-423, Wall 356 Mich Concrete Phillips, 587), only remedy Ellis 363 Mich joint available to tort-feasor his brother by chancery guilt was action for contribution taken pursuance (CL § of the act of 1941 691.561 seq. 27.1683(1) [Stat Supp § Ann 1959 Cum et et seq.]). changed degree The act of 1941was in minor (to procedure only accommodate the new and not to substance) change the and re-enacted as section judicature (CLS 2925of revised act of 1961 27A.2925]). [Stat Ann 600.2925 1962Rev ^[1] See Joiner, The Union Law Equity, ^[55] Mich L Rev, p the Court. pleaded to in-

First: Has Consumers demnity? position

This must be the essence of Consumers’ third-party plaintiff. particularly on It relies City Pork, Inc., Iowa Dressed v. Sioux Blackford 559). specific (118 under NW2d Blackford’s Stevedoring pinning Ryan Pan- Co., Inc., v. (76 Corp., Steamship S Ct Atlantic US 133). application here, Neither case has 100 L ed allegation being no there might strength that a conclude of which this Court equitably relationship, express or im contractual by Hertel-Deyo plied, indemnity in favor of Con injured. plaintiff was existed at the time sumers, Ryan ap- specific link between Blackford beginning pears of division IV of in the sentences (p 852) opinion : Blackford’s authority directly point in “An on its facts and Ryan Stevedoring Company law is Steamship Corporation, supra. that the action over v. Pan-Atlantic It was there held employer by the the party negligent employee, held to the was not third upon employer’s negligence, the but on its based duty by employer a owed the the third breach to of party arising the contract them.” out between of by present Court.) (Italics Ryan: erring Supreme Bef back to The Court upon decision the of a contract of in- based its fact demnity, (p 130) saying : indemnity “In a of this the face of formal bond clearly shipowner’s right does not cut off a statute 2 company bonding from a the reimburse recover to good indemnitor, consideration, ment that the expressly pay. liability a contracted to Such bursed for sums amendment, 1964 Cum USCA, Poeket 901 et advanced.—Reporter. Part, insurance seq., specifically 933. The carrier the 1959 Ryan employer ease arose amendment, was to be reim before the USCA, Power v. Husted Opinion op the Court. independent springs right. from an contractual It by employee not an behalf is action of the damages not it is one recover ‘on account of’ an employee’s ‘injury simple or death.’ It ais action voluntary recover, to tract, under a and self-sufficient con- damages a sum measured foreseeable oc- shipowner by injury casioned or death of ship.” longshoreman on its opinion Ryan, dissenting dealing itas does legal position employer with the of an sued as here complaint, by third-party pass is of interest as we question third-party main of effect this com- plaint Michigan compensation workmen’s law. opinion prepared by That Mr. Justice Black. It signature, signatures with bears, his of Chief Douglas Justice Warren and and Clark. Justices pages report, having On 141 of the after depicted employers gain they what and what lose compensation, principle workmen’s having third-party then alluded to the suit longshoremen’s which the and harbor workers’ com emp provides injured pensation act3 in favor loyees,4 opinion proceeds conclusion indemnity not in a contract for there was fact plaintiff employer third- Palazzolo’s favor shipowner party paid judgment. which Palazzolo’s 141): Upon (p the four held that conclusion Justices “But the end result here that this is damages actually successfully prosecuted employee mulcted because its action. Lia- imposed negligence bility is thus because of the employer’s employees. act for- other This the indemnity,’ ‘common-law ‘con- bids. Whether called any ‘subrogation,’ name, or other the re- tribution,’ imbursed m amendment, 1964 Cum Pocket ^[3] This is the same USCA, (CLS for sums and the insurance et ^[901] advanced.—Reporter. Part, right §413.15 seq., as was specifically 933. The [Stat carrier provided Ann 1960 the 1959 ttyan for by employer case arose before amendment of our act amendment, Rev §17.189]). was to be re ^[33] USCA, the Court. pay employer to precisely same. The suit is employee injury than an to his of’ ‘on account

more congress said he should. employer here had agree, if the that course, “I of agreeing to hold written, contract, a oral made this ship- indemnify shipowner harmless or to injuries petitioner’s liability owner employees shipowner’s negligence in caused part, valid have been contract would whole or indemnity For the have been obtained. could employers longshoremen’s it to make not under act does forbid indemnify independent agreements to others.” only shipowner reason the succeeded

Thus the employer indemnity against action for with its was on account majority finding of that shipowner. indemnify had In contracted claim that is, course, case before us there Hertel-Deyo correspondingly no to indem- contracted accept nify we cannot And Consumers’ Consumers. Hertel-Deyo’s negligence legal conclusion, bare negligence “pas- was “active” Consumers’ framing an issue determination sive,” presence indemnity, or of tort- contract Light- indemnity (as in Westchester created ing County Corp., Estates Co. v. Westchester Small Consumers). [15 567], 278 NY NE2d cited looking record, at the two declarations On this third-party complaints, array can with the one two only Hertel-Deyo conclude that Consumers in the absence intervention a workmen’s would, joint compensation law, deemed tort-feasors. Judge regularly Refer Chief Learned Hand’s (CA quoted opinion Slattery v. Marra Brothers 2), In that case most of the author- 186 F2d supra, (Winchester, in- cited ities duly cluded) distinguished. Marra Brothers, were personal injuries by Spencer & Son’s em- sued for Husted v. Consumers Power op Opinion the Court. ployee Slattery, sought by third-party complaint indemnity Spencer full from & Son. Marra allegations Brothers’ were much the same as those Having of Consumers here. “at conceded, least putative protected by when the indemnitor is not compensation act,” that some courts have based in- demnity upon merely a difference between the kinds negligence (giving of the two tort-feasors as an negligence instance where the of the indemnitee is “passive” “active”), and that of the indemnitor is supports the court reached a conclusion this Court (p 139): far body

“So as we can see therefore there is no authority saying of sure differences degrees of fault between two will tort-feasors with- strip employer, out more one of if them he anis protection compensation of a act; we are at any principle sup- a loss to see tenable which can port such a result.” pleading by any There is here no Consumers of indemnity. Indemnity arising from tort, only party unlike contribution, is available when the appealing plead prove therefor is able to free- part personal dom on his from fault. This third- party plaintiff pleaded no conclusions of fact proved, justify finding if which, would or verdict Indemnity that it was free from such fault. In- See surance Co., Co. North America v. Otis Elevator (171 266) key 315 Mich 393 ALR ; also this sentence appearing upon in another case which Consumers depends (Lunderberg Bierman, 241 Minn 349, 871]): [63 355, 359, NW2d ALR2d indemnity “The whole doctrine of rests proposition compelled pay that, one is money former unless the one wrongful justice ought pay, which another may paid recover of the latter the sum so making payment is barred nature his conduct.” the Coukt. May contribution, have Second: compensation Eertel-Dayo, the workmen’s law considered? Corp., Mich.434.5 Refer to Wall v. Studebaker part § 4 of the was decided in When Wall (CL [CL § § Ann the 1929, 8410, Stat 5426 1915, act emphasized 17.144]) § was relied and (p 437): as now indicated Court approval “Any employer with the elected, who has created, hereinafter accident board, of the industrial provided, pay compensation hereinafted shall to not as subject provisions 1; section nor the be to of any liability employer subject be to other such shall provided death whatsoever, as herein for the save injury any employee, personal for which of or death or to injury compensation is recoverable under except employees this the ject to elected in act, as who have provided not to manner hereinafter become sub- provisions to the of this act.” By (PA 245) the of 1943, amendment No said part presently (CL 4 of section reads 411.4 1948, 17.144]): [Stat Ann 1960Rev liability under of the conditions 4. Where “Sec. compen- recovery the the exist, act this provided, shall be the exclu- herein as benefits, sation employer.” (Italics by pres- against Court.) remedy the sive ently seated by the Court in of the statute stressed The words up opinion Wall, make the unanimous Wall, and sought legislative presently in the best evidence compensation was law the workmen’s tent. When prior legislatively to and considered, and studied (1912),6 year during it would seem of enactment enactment See Followed and description Moran v. thereof, expressly in in Mackin Nafi of the Corporation, Varga continuing v. v. Detroit-Timkin Detroit 370 Mich study Edison 536, 539, Axle Co., Co., act, prior Mich 187 Mich 593, Power Husted ths Court. participants primordial all was intent of that that turn immunity act) employer quo in re received to be outright quid would be absolute for his liability (except provided as from compensable injury. stemming from each legislative assembly may foreseen not have True, the specific may question today’s no and so have had o.7 regard specific Nonetheless, theret intent with body according Wall, that made it clear that an paying operating under act com thereby pensation required not—on ac as should compensable event— a result count of as liability any subjected other whatsoever.” “to opinion signed Wall's was Justices Bird . “there” the work- Justice was Bird Fellows. compensation and debated law was men’s prior studied during year enactment, as first general attorney and then Justice Court (161 iii). elected attor- Justice Fellows iii) general (173 ney in 1912 Mich and continued to until elected the in 1916 hold that office to Court iii). (194 legislature Mich then to the than Closer today, attorney general legal the was the obtains legislative exclusively and the in fact—of adviser— knowing day He that must be held as branch. legislative the of the times more intent much than about separately can ascertain. we latent, legislator’s lature is, search and the ‘that was a says Gray something Cardozo, point judge’s not the statute never occurred “Interpretation present the difficulties has had no had none the less to determine what not The Nature of the Judicial troubles in more. The ascertainment in his lectures on the ‘Nature and mind. to its present discovery meaning mind, is often of so-called to its ascribing meaning process but a real of a at mind, spoken legislature is, all; meaning guess and ascertainable it; interpretation indeed, if when the Process, pp of as what intention which, that at to a what did if point it would have intended on it question moan statute. were Sources arise when the however obscure times, had been may pre-existence judges on a nothing whieh is but ‘The of the point have it present,’ faet is often least of but raised which Law,’ legis to do the is,’ ” 376 op the Court. intent deter in mind that legislative

Bearing at time of enact minable what was properly by a half ment, appear century rather than what might Road by hindsight (Wayne Commis County later — 235; Wayne County sioners v. 293 Mich Clerk. Platt Co., 48, 63, [25 v. Union US R. Pacific L Am ed we 424]; Jur, Statutes, 236, p 224), depend much what wrote members Court at shortly statutory the time of or after enactment provisions as which, then purpose considered (see have unamended in substance intent, remained Roebuck & 350 Mich comment, Dyer Sears, Co., 92, 95). doctrines, Pursuing ruling these Court’s in the Wall Case must be as regarded controlling. If, it appeared Court that section (of compiled 1915) laws of was intended, in event of industrial to a to destroy injury minor, the separate of action that minor’s parent, we suffer no trouble in holding that the same section the cause destroyed for contribution third- this plaintiff claims. party to the

Turning weight authority now clear out- side with Michigan; authority dealing contribution from distinguished When indemnity. orig- Larson’s inal work was written published, recognized authority considered the cases their reasoning under this introductory paragraph (2 Larson’s Compensation Law, Workmen’s 76.21, 231) : pp 230, majority “The great jurisdictions have held that the whose con- concurring negligence tributed employee’s to the injury cannot be or sued third joined by the party joint tort-feasor, whether under contribution statutes at common law. The is a one: simple the ground employer is not liable to the jointly employee tort; therefore joint he cannot be a tort-feasor. The liability rests upon employer an is absolute irro- liability Husted v. Power Co. Coijkt. only spective negligence, kind of lia- is the and this negli- bility he him whether is that can devolve employee gent The claim not. statutory solely claim his employer against are benefits; is damages. person two is the third a common result in and cannot different in kind liability.” Reports, Law of American

The editorial writers analysis, prepared fully agreeing have with Larson’s compensation (“Effect workmen’s brief similar third-person to recover tort-feasor act on injured employer of or killed from contribution 977). 53 ALR2d workman,” 1964 cumu- above, to the see Larson’s

In addition “§ p supplement 76.21 Ma- 2, 219, of volume lative employer,” jority rule; no contribution most therein; also the re- cases recent considered Jurisprudence cently American delivered volume of 70). pp (18 48, 69, 2d, Contribution, Am Jur 2d supports majority reads: rule and This last predicated usually “This conclusion has been person are third fact that and the injured liability or killed to the not under a common liability imposed, employer’s since the workman, provisions workmen’s well of a limited, as third-person compensation that of act, while principles negligence.” on the tort-feasor rests in fore decisions found of the most valuable One going State, Baltimore Transit Co. annotations is 460). Holding (39 ALR A2d 183 Md 674 liability, resulting employer’s from indus that an trial to the exclusively employee, injury to is confined his compensation liability the workmen’s fixed Mary went law, the court on to decide whether (a duplicate joint tort-feasors act of land ) “the authorized our PA No substance of CL §§ 691.561-691.564 (Stat Ann 1959 Cum Supp §§ 376 Mich 41. Opinion op the Court. joinder caused or conforming employer negligence of a whose happening

contributed of an acci holding (p 679) dent.” The was that “the act is only applicable to a situation where there is a com liability injured person mon to an in tort”; also that right “The not of contribution ais derivative a new cause of action.” Thus if Husted could not sue his (Hertel-Deyo), and we know he could not, Hertel- Deyo joint and Consumers cannot be tort-feasors Hertel-Deyo law. Consumers therefore cannot sue respond plain for contribution should it held to be damages. reasoning tiffs in See the of Baltimore supra; searching Transit, of also the recent decisions (CA 9), Lines, Inc., Air United v. Wiener 335 F Dynamics Corp. (CA 2d 379 and General v. Adams 5), 340F2d 271. carefully

To deciding conclude: "We avoid any there cannot be, in circumstances of noncontrac relationship tual between sued defendant and plaintiff’s employer, recovery over the em ployer. ques See discussion of this feature of the Contract-type remedy tion ery Larson, “C. in recov parties.”

over; noncontractual relation between (2 Supp pages 217-219.) Larson 1964 at An ob ligation implied by equitable to reimburse can be principles, provided always the relator is without personal fault. Loss occasioned vicarious lia bility, being personal there no such fault of one seeking indemnity example. an reimbursement, is Lunderberg supra, appli v. Bierman, See impose it.” liability of the 27.1683 all in one 600.2925 “The common one short sentence [1]-27.1683 injured those rare Maryland supreme (Stat tort-feasors person obligation contemplated by Ann 1962 Rev epigrams [4]), whether or not (p 680) repealed eourt of the law which suffer : § 27A.2925). Reporter. quoted, adverse See, from a injured judgment this act — currently, succeeds committee person is the common at the instance CLS saying elects report, it Power Husted Consumers the Court. (Re principle in that case Restatement’s cation p 418); Cooley also statement, Restitution, 96, Township quotation appearing Noret, Hart v. 83). (LRA at the case 1916F In nothing supplied has bar, however, which such implied. obligation may Nor an agreement pleaded anything of an in the nature it Ryan Stevedoring indemnify, as in the Case. to entry of order dis- and remanded Reversed third-party missing primary com- defendant’s Hertel-Deyo plaints. appellant Com- Plaintiffs and pany appeal. shall have costs provision

Although needless, a Con- we deem such may order of in the if desired have included sumers dismissal prejudice orig- its to no declaration against any, right, Hertel- if to recover over inal Deyo satisfy compelled whole or it be should —in plaintiffs judgment judgments part -any these in — may at in causes now issue. recover J., M. C. T. Black, Dethmers, Kavanagh, concurred. Adams, JJ., O’Hara, Souris, Smith, in Kelly, J., concurred result. (concurring). my signa- I concur, as J. Black, though something It seems should

ture attests. an errant trend, be added must be arrest trend which misconception judicial duty due to (ex implead presented parte is a motion for leave 204.1(1). notice) mis- or on conception under GCR Such large, at is more or cases before less appeal previous applications con- for leave to us and judge Surely gripped both the circuit it sidered. plaintiff third-party evi- for this and counsel by proceedings briefs submitted below and denced here. 376 Opinion by Black, J.

No judicial Judge officer Holbrook’s caliber ex in de- would have haled in then parte, kept defendant protest, its this spite absent expects our such action as a conviction that Court 204.1(1). matter of course under The misgivings of the judge become evident as one reads each spe- proviso cial included in order now he reviewed (the quoted per order is our opinion curiam). Such misgivings, ill-advised trend mentioned above, present the rather obvious fact that consolidated cases since could and doubtless long would have been to final but for these judgment tried discretionarily dispensable third-party proceedings; all this has the next spurred ensuing paragraphs at- our books. recording Outstanding fact, tested by opinion that this today’s Court, pri- mary defendant yet could and may adequately pro- whatever tect or contribution that indemnity ripen in its may Hertel-Deyo. favor All it need do is await —with or without out- voucher1 —the come the main trial if and then, compelled to pay plaintiffs, proceed to sue al- right thus accruing. legedly

This order for impleader of was Hertel-Deyo pre- parte sented ex granted parte. and ex True (the primary defendant having delayed filing of an- swers, some seven months, until parte ex order such granted), practice is author- technically ized by 204.1(1). The question is whether it can be regarded g-ood practice, and whether the bench bar are and that aware for impleader motions under are 204.1(1) not a grantable as matter of casual course. This Court, its own should an- motion, swer these questions firmly. gan (16 See comment “5. LRA NS Court Rules 910), Annotated, p and Grand Vouching Rapids in” 510), Grant v. (1 Honigman Lumber Co. v. Maslen, and Hawkins, Blair, 151 Mich 466 190 Mich Michi Power Co. v. Husted Opinion by Black, J. Court, this and the zealot

The then members during supporters failed rules, new must have our judicial meetings regional of 1962 the annual and practice, tak- home the fact that to drive literally ar- Rule 14, from Federal as it was en rived representations supported Michigan with precedent motion im- that a to Federal uniform judicial 204.1(1), plead, is addressed sound under no matter the rule creates discretion and implead right distinguished from the course to move to implead.2 sys- appellate courts of the Federal trial and

The unanimously agreed im- that motion for tem are up primary pleader, calls defendant, judicial is no discretion. There of sound exercise right and Rule 14 to lasso retain Federal under allegedly may stranger liable otherwise, who, primary list Federal defendant. See original supplemen- appearing in the and decisions tal annotations (28 USCA, of Federal Rule Rule 15; and Holtzoff, of 1A Barron 14, note also text p § 423, and 647headed Procedure, Practice Federal Honigman Court.”). and “Discretion Hawkins (1 Michigan Honigman Hawkins, this and concede Court p 507). do Needham Annotated, Rules So Appeals, Special Proceedings (RJA: quoted (1 infra) Supp, pp 158, 159, Gilmore pp 333). Michigan Trial, 332, Civil Procedure Before carefully if selective consideration not Forsooth, 204.1(1) impleader, given motion each measuring up will never to that new succeed rules Part not been ment, been 137, 140: within the sound discretion of cedure, “Impleader impaired p 45, and 1A in National 1964 Pocket amendment overlooked. See 28 under the 1963 amendment.” Fire Barron of Federal Part, Rule 14 Ins. 421, p USCA, Rule Holtzoff, quite court, Daniel J. Rules consistently As and this effective Federal Practice 12 to said of the 1963 amend Co., Keating discretion July been 1, Cum Pocket held 35 FRD has not Pro be Opinion by Black, J. accompanied delivery trumpeted which tout their profession in us is a the significant the fall of 1962.3 Before proves which

record such conclusion. pending they are in cases, These consolidated as the tions and Midland circuit declara not-overburdened and should have been could tried answers, judgment long ago. that done, been had Had primary judgment gone against defendant Con indemnity Hertel-Deyo its to sue sumers, or contribution would have unimpaired, by remained just it is now. otherwise, limitation or See CL Supp (Stat §§ Ann 1959 Cum 1948, 691.561-691.564 27.1683[1]-27.1683[4]); §§ 600.2925, CLS [4]). (4) (Stat § 27A.2925, Ann 1962Rev subd subd pro only of the two methods difference between delayed pursued 204has is that the one under cedure (it needlessly expensively justice in bound any reasonably result in two foreseeable event'to anyway); separate the former and whereas trial's payment by yes; yet require method will, available entry an in'the of ten whole fee, of sum separate potential of Consumers suit dollars, outlay Hertel-Deyo. of that ten Yes, outlay should be hurt. But the thereof dollars will avoid the further con needful, and if justice by made, procedural founding of this new demon formalism. matter-of-coprse supporters really,

Now, entry- allege practice the extra do not 'óur ministration sentence which and utilized, will earn Company to the utilized.” that advance It must “As these new In the “Introduction” generation appears appea they So far its billing, “the justice in this State.” in laws of Michigan bench advancing Rule experieneo special procedure become recognition greatest to the GCR pamphlet -not as achievement eause of and bar Michigan as- the of 1963 and issued yet more r in greatest does .“fully fully understood improvement our not tend to West generation.” understood and this achievement BJA Publishing concluding s support in : ad Husted Power by Opinion Black, J. practice, fee of cost, the tested and now alternate as supersession a practice reason for of such alternate by They simply say the scientific new. that the new circuity “avoids of action.” But does it? Could it doing ever have done so here? Is it so in other in- being employed by say stances where it is candidly rote, as conceded counsel Consumers’ at oral argument of these cases? tragic judges

The that, fact is since seated here rarely Michigan admit mistakes, is stuck with third- party practice and will not return rule to the time practice “vouching” party tried of a claimed to be over. liable It us, then, behooves that assure 204.1(1) practice applicable only be made to cases require which from their nature will not that the judge newfangled trial an unscramble omelet of pleadings painfully expensively he has mixed, pretrial pursuant summary and baked folded, to into procedural only cookbookof to.find gets through he that he much has his hands more “circuity of action,” the dissection which can be accomplished only by separate resort to trials under at GrCB 505.2. if Sure, the ease hand discloses application genuine 204.1(1), for need Buie let applied. that rule be But let there real need, be not discretionary just professional denial tactics. 204.1(1) of a motion all substantive under leaves rights when, all, intact at advancement if payment loss other movant is hurt some right. property deplored part of

A what is here must be attributed inexplicable parte practice invitation ex 204.1(1) manifestly extends.4 Another is due party peremptory even after Why practice. Rule having action under the rule. 204.1(1) No read tomes about one invites or yet permits given Indeed, action of an theoretical ex understandable parte action glories kind eludes reason is more third- me, by Blagk, J. “matter Michigan practice into

introduction 1 Honigman which appear suggestions course” Annotated, p Rules Court Hawkins, Michigan page): (same which reads that sentence 507; also to sea- implead] leave to motion [for “Where in which it will few cases there made, sonably be denied.” should in to cited authority no reference

Although it just quoted, appears sentence of the support the correspondingly from directly lifted been having at and Holtzoff pages text of 1A Barron unsupported is for Federal If the sentence quoted 649. It is Michigan practice. it is practice, wrong that the reverse should be to wrong enough suggest The reason in the differ- lies Michigan’s watchword. of which flow litigation reg- between the classes ence fact jurisdictions; two also ularly through “a most case,” cases, that Federal unlike is State carry the cost and weighty enough put to ordinarily other delays with of similar up third-party maneuverings. before-trial cases, cases, The maritime conspiracy antitrust of controversies, mass patent copyright Federal complex litigation arising statutes, under of the that are types generally mention a few only probate courts, circuit Michigan unknown practice. regularly susceptible are of for jurisdictional Michigan, however, gen- As what eral not based on contractual rela- type litigation, of thus susceptible or to “matter tionships, subject is ? There is 204.1(1) of course” treatment under none. Summary: moral all principled The this parte ex implead motion to under that 204.1 every he is judge psychosomatic when apt put on the defensive than what without notiee he done. asked to vacate or dissolve last, by way, our recent restric This is one the reasons for parte. injunctions ex See GCR issuance of tion If there is there, surely outright for restriction there is need need parte 204.1(1). of ex action under elimination Power v. Husted by Black, J. flatly even denied; that, also (1) should in favor of be denied presented it notice, should practice as to its real remains if doubt traditional very along Michigan well for more got purpose. third-party practice, which century without than a plain- thought of these cases returns remark tiffs. when fully happens examples They what classic are practice not care- pursuant are motions against: for worth scanned delay, probability v. “(1) States United The 1949), (D 2 FRD 148. Mass, Jollimore “(2) Complications McPherrin v. trial, of the (D 1940), 1 FRD 88. Neb, Ins. Co. Fire Hartford Casey “(3) v. Cal motion, The timeliness Supp Corp. (D 1956), Steamship F138 Del, mar similarity “(4) Water- Jones evidence, The Corp. (CA 1946), Steamship 155 F2d 992. man plaintiff, prejudice “(5) possibility to the Corporation Deposit v. National Insurance Federal Surety v. Calmar Casey Corp. (ED 1950), 201; FRD Wis, supra. Steamship Corp., Possibility prejudice “(6) de Grey Casualty Fidelity Co. v. American & fendant, (CA Corp. 1956) 232 F2d 89.” 5, hound up judge, fed -words of one Federal district grant motions to he was with indiscriminate implead third-party serve to end will defendants, pre separate composition. Noting that three this gone in the other vious decisions his district had way the four cases ex “of and that of course,” Michigan only v. Motor amined him Buchholz Freight (ED 1956), Lines, Inc. 19 FRD Mich, carefully judge tested views, for his stood ju third-party complaint (which him as to before dicially purpose much like those of noticeable p 159; Gilmore, Michigan Needham, RJA: Special Proceedings Civil Procedure Before Appeals, Trial, p 333. Supp, 41. 376 by Black, J. here). (Goodhart He concluded Company [SD 1960], Lines NY,

United States 163-165): FRD recognize “I that three decisions in this earlier way, expressly gone district have the other the third proceeding ground desirability on the of main- taining approach a uniform consistent answer keep to such Much I like to in motions. as would step my my with conviction brethren practice joining straw-man defendants so strong conviction precedent following that I feel that ought present be recorded before ingrained.”

trend becomes v. STATE HEALTH

SCALLEN COMMISSIONER.

Decision of the Court. 1. Health —Correction of Vital Statistics Records —Evidence. correcting plaintiff’s Order record of birth in health de- State partment’s certiorari, vital statistics records is affirmed on being evidentiary support finding there made on the dispute presented statutory pro- factual to the court in trial ceeding (CLS 1961, 326.17). for correction of records

Dissenting Opinion. Souris, J. Affidavits—Hearsay. 2. Evidence — Representations based declarations made affidavits prove than others the truth affiants offered hearsay. matters stated were References for Points Headnotes 2d, 14 Am Jur Certiorari '1] '2, §§ 2d, 3 Am Jur Affidavits §§ '3, 4,10,11] Jur, 20 Am Evidence 468-475. §§ Jur, 20 Am Evidence "5] ‘6-8,12-17] 2d, Am14 Jur Certiorari 63-67. §§

Case Details

Case Name: Husted v. Consumers Power Co.

Court Name: Michigan Supreme Court

Date Published: Jun 7, 1965

Citation: 135 N.W.2d 370

Docket Number: Calendar 10, 11, Docket 50,772, 50,773

Court Abbreviation: Mich.