*1 Terpstra Trailer 555 v. Grand Sales. of a motor vehicle under a agreement chaser void price recover the purchase paid where return the vehicle has rendered impossible <of been because acts of negligent plaintiff. affirmed, with costs to judgment defendant. J., 0.
Dethmers, Kelly, Smith, and Black, J. JJ., Carr, concurred with
ROSS FISHER. Battery —Fraudulent Limitation of Actions —Assault 1. Concealment. battery in civil for Judgment for defendants assault officers, against poliee commenced more than after affirmed, notwithstanding alleged assault occurred is fraudulently concealed their iden- plaintiff claimed defendants judge holding tity him, relative to the trial amendment from parties in retroactive identity of concealment statute not ^CL 49), by 609.20, 1954, 1948, amended PA No § of Statutes. Costs —Construction 2. an in action construction No are allowed costs which (CL 1948, of limitations involved amendment the statute 1954, 49). PA No 609.20, as amended Edwards, J., dissenting. J, Sub- Jayne (Ira W.), from "Wayne;
Appeal 1957, No. (Docket Calendar 67, mitted October 1958. Decided June 47,462.) No.
[1] Am Jur, Limitation of References for Points Actions 216 et Headnotes seq. [June- Michigan Reports. against Case Ervin Ross, Jr., Michael Fisher police damages and Robert Kinzel, officers, aris- ing battery allegedly from assault and committed in *2 connection with arrest and incarceration. Cause dis- appeals. missed on motion. Plaintiff Affirmed. Meyer plaintiff. Leib,W. for Dwyer, Corporation T. Paul Detroit Na- Counsel, thaniel H. Goldstich and Eaton, Laivrence E. Assist- Corporation ants Counsel, for defendants. This J. civil action for assault and Voelker, battery against police 2 officers commenced more- years alleged the than after assault occurred. De- ground fendants moved below to on dismiss the by 2-year the action was barred the statute of lim- itations. Plaintiff that the countered statute is no- fraudulently bar the because defendants concealed their from him, thus, under a 1954 amend- tolling ment hereinafter set forth, the statute. The unimpressed by plaintiff’s argument trial court was granted the defense motion to dismiss on the ground that the retroactive, amendment on was authority the Case, the hereafter cited. appealed. Plaintiff has (CL applicable
Prior to 1954 the statute [Stat 27.612]) § 609.20 Ann read as follows: any person any “If who is liable the actions chapter, fraudulently mentioned in this shall conceal knowledge the cause of such action from the of the person may thereto, entitled the action be commenced any years time within after the who is en- bring titled to the shall same discover that he had although such cause of action, such action would be by provisions chapter.” otherwise barred the By PA No 49 that section of the statute was (CLS [Stat amended 1956, 609.20 Ann 1957 Cum v. Fisher. Boss 27.612]) for con- material follows, the new Supp § by being brackets: off set venience any actions any liable to person, -who “If fraudulently chapter, conceal shall in this mentioned the cause identity of or conceal action [, of such per- knowledge any party from the thereto,] commenced thereto, the action entitled son at person who is years after the time within had that he bring shall discover same entitled although action would such of action, such chapter.” provisions of this otherwise barred after effective amendment became The above expired, alleged had before assault but appellant urges to extend served filing of the concealment because his suit time identity alleged by him. defendant alleged fraudulent counter Defendants adequately timely al- them was not cealment *3 leged; plaintiff reasonable the failed to exercise that any identity; diligence that their to ascertain by by present practiced not others, cealment was deny they consistently to that all ever did them; was guilt assault; or their that mere denial silence is concealment; or inaction never fraudulent any not that in ease the amended statute retroac- was points tive. Plaintiff answer to each of these makes by many quoted are the authorities cited and knotty propo- to both sides sustain these and other urged by sitions them. In view of what we follows baldly highlights only have stated the of the various claims. Vega (Vega Briggs
Defendants cite the Case v. 218) Manfg. holding Co., 341Mich that the amend- not retroactive, ment was and indeed that is what say 222). plainly (p to seems and hold Plaintiff Vega inapplicable counters that case is practically bad law and that a cause of action to be Michigan Reports. always must be held to embrace effective parties citing of Mr. defendant, dissent International Adams to this effect in Union Justice A.F.L., America, United Automobile Workers v. p Wood, Mich 8 at 16. nor neither Case the- We observe possibility to this case raise discuss may have failed to ac that the cited 1954amendment complish manifestly sought changes rather that it accomplish. that the- before The briefs us assume accomplished changes amendment assumed Vega. agree assumption; cannot with we- We think the in that it amended statute defective fails accomplish 'plainly what the rather accomplish. tried think such fail We further controlling litigation regardless ure must be on this points of the other- and issues raised and discussed by parties. normally
While we do not
our
on-
decide
cases
grounds
urged
parties, litigants
not
by stipulation,
impose
admission or concession
a
upon
construction of a statute
our
courts
is not
(See, generally,
warranted
People,
the statute itself.
McElroy,
ex
Hart,
[2
rel.
It is all too attempted what the to do. It tried add a new concealment situation to the old where might the statute of limitations mechanically But it tolled. failed to do so. It made an draftsmanship mistake, error plain —in pulled American idiom, someone a boner. For us to supply fatally missing per- words would not be *5 Reports. Michigan legislation judicial judicial but construction
missibl'e change However the kind. desirable of the boldest decide), (which might it is need not still one we be legislature by using appropriate make for the language to needed. It lies without our
where it is province to do so for it.- only foregoing
Applying to we our case can right that the court reached concludé trial result wrong dismissing case, in however its reasons. plaintiff Certainly the he assaulted had a cause knew up. of action when he was beat The statute still unequivocably provides that he commence his must that time. He failed to do within so and and retroac- discussion Case tive or other would effect issues be fruitless of that face failure. they resourceful, are but
Courts cannot undertake legislature say to amake what it has not said, when a statute is as defective as one we are job remodelling legis- afraid the must be done possesses proper lature, which both the tools and the authority to use them. Moreover we think a statu- tory change important as this one should be read- ily by consulting found our citizens the statute by having through dusty itself, to thumb law reports rights. to discover their may argued
We are aware if even put proper failed to in the words despite proper place in the amendment that, this, legislative what it did do constituted a sufficient ex- pression of intent that henceforth the cause of ac- tion and should be construed as unfortunately say one. But it didn’t so. If we forgiven figure, it courted wooed the idea warmly, marry but the last moment failed to it. presume It august body not for us to advise legal draftsmanship, on but if that’s what it meant say among do things, it could, other have left Boss v. Fisher. original simply intact and at the version added Fraudulent concealment of the cause of such end: action shall be deemed include concealment any party identity of thereto —or similar words *6 effect. It failed to do so and we cannot do the that job ourselves. is one final comment. our decision
There is While practically the as it was to leave the statute same thing prior to the 1954 must be amendment, one prior pointed are not argument that out. also unaware We an of merit 1954 amendment some could have been made that the cause of action must identity every party in case embrace the of the de- practically the bur- fendant effective. This is portion of den of Mr. Adams’ dissent Justice irony the of the 1954 Case cited above. The of failure Wood is therefore double: while the amendment failed accomplish legislature purpose, main and avowed its amendment at least constitutes a rather plain legislative mind, least, 2 declaration that to its identity of of action and are dif- cause legislature things. words,, the In other ferent only where the failed to liberalize situations tougher might actually but made it tolled, statute successfully tardy plaintiff to maintain for the now identity offending par- of the concealment fraudulent concealment of ties tantamount to plainly now rather told The has cause. successfully At least it has him otherwise. it thinks discouraged attempting to write to from this writer contrary. aof stat-
Affirmed, costs, without the construction being involved. ute J. JJ., Voelker, concurred with and Black,
Smith J., JJ., Dbthmers, C. Kelly, and Carr and in the result. curred Michigan Reports. (dissenting). Michigan' J. A statute Edwards, exception
grants an from the statute of limitations fraudulently a where concealed. (CLS [Stat Supp 609.20 Ann 1956, Cum 27.612].) question posed by The this case is wheth- er or not the term “cause action” in this statute identity should be construed to include the of the de- alleged fendants where such is have concealed been by their affirmative acts. writer feels this Court’s first answer to question in International Union Automo- United Workers America, A.F.L., Wood, bile 337 Mich in error for was set forth Mr. reasons Jus- dissenting opinion Adams
tice his therein. Justice 16): (pp wrote Adams term “The action’ ‘cause means more than a injury right. or a known violation It must also responsible include for the who is injury Damage injury or the violation. *7 except cannot constitute a cause of action it re- wrongful illegal from the sults act of another. A utterly thing action cause of would be an if useless party against remedy there no whom were could * * * sought. party component being an “A defendant essential of action, of a cause of the existence or it follows the concealment identity person of is such a con- of cealment the cause of itself.” construing statute, it, The as the was then Court specific made no reference the concealment of the identity party. of
"Writing before the decision in Case, the Wood commenting by admittedly problem posed on difficult type of Dawson statute, said: legitimate point at which of
“The
tactics
obstruc-
tion
very
‘fraudulent concealment’ is of
become
course
example,
Eor
difficult to define.
where the ex-
plaintiff,!
of a
of action is
istence
known to the
v-.
Ross'
563
Fisher.
identity
of the
deliberately'
but
liable
possible
argue
it
concealed,
that the ‘cause’ of
meaning
action is
concealed within the
of that
exception.
assumptions
purely
behind this
'
ceptual approach
when the
are
no means absurd. And
question appears
problem
as a
lim-
certainly
itation of
actions,
can
be said that dis-
covery
inflicted
has
is
injury
‘duty’
of the
creates a
to discover who
injury.
fortunately only
’But
one court
yet
identity
wrongdoer
decided that the
purpose
not an element of
a cause of action for the
exception.
of the ‘fraudulent concealment’
And
.
authority
proposition
there is abundant
for the
misrepresentation
steps
direct
or other active
to con-
wrongdoer
justify delay
ceal the
and
cealment and
do
suspend the
statute.”
Fraudulent
Dawson,
Con-
of
Statutes
Limitation, Mich L Rev
1933),
(May,
pp 873, 913, 914.
(283
See, also,
Burkhart,
Brookshire v.
1Okla
1059); Kurry
571,
P
67 ALR
Frost,
v.
By
PA
No
“or conceal
words
the iden-
tity
any party
following
thereto” were added
action” in
term “cause
such
the first sentence of
agree
I
with Mr.
the statute.
Justice Voelker
draftsmanship of this amendment left much to
plainer
legislative
But a
statement
be desired.
*8
it would be difficult
find.
intent,
legis-
views the
amendment as a
The writer
in
that this Court
the Wood Case,
declaration
lative
meaning
misinterpreted
purpose
supra,
and
Reports.
Michigan
adopt
should
Justice
This Court
its enactment.
over-
thereby
statute,
this
Adams’ construction
Wood,
in
of this statute
interpretation
its
ruling