*1 n 1966] of Detroit. TRBOVICH v. CITY OF DETROIT.
Decision Court. Highways City— and 1. Streets —Defective Condition —Notice to Judgment. Accelerated judgment by guardian Accelerated defendant action alleged mentally in- who to have been rendered competent injuries reason of sustained fall on defective affirmed, appears given sidewalk is where it notice was not prescribed by according right defendant within time 1951, (CL 1948, 242.1-242.8, as PA action amended §§ 1963, 116). 19; No GCR [10] [3] [5] [6] [12] [13] [1,11] [7, [18] [17] [14] [16] [2,15, [21] [23] [19] [9] [4] 38 Am 20 Am Jur Waiver Infancy personal 16 Am Jur holding municipality public place. 82 ALR 704. 50 Am 50 Am 38 5 Am Jur 50 Am 50 Am 50 Am Am38 50 Am Am38 5 Am Am 50 Am 20, Am municipal Am25 Am Am Jur, 22] of failure to Jur or Jur, Jur, Jur Jur, Municipal Corporations Jur, Jur, Statutes Jur, Municipal Corporations Jur, Jur, Jur, Municipal Corporations Jur, injury. 2d, Jur, Municipal Corporations Jur, Municipal incapacity 38 Am References Jur, Highways 2d, 2d, 2d, 2d, Appeal Statutes Statutes § Courts § Municipal Statutes Statutes §§ Statutes §§ Appeal Statutes §§ liability Constitutional Law Appeal Jur, Municipal Corporations 34 Corporations ALR2d § 67. and § §§ and 228. 227. and Error or Corporations 223. for Points 749, affeeting 217, 223, 227, 235, 303, §§ Error notice of 217, Error other 725. 437, 240. 219, § §§ §§ political 438. §§ ALR 1009; 221. §§ from defect 223, 224. §§ 726, in Headnotes elaim or 723, 725, 673, §§ 210, 702. 674. §§ 674, 329, 571, 20 Am Jur 727. required 675. 675, 684, 211. subdivision 702-704. 585, 726. injury §§ ALR2d 304. 593. 703, as condition street 2d, 690-696, 703, as condition 704. Costs 34. liable for 1278. other § .378 : 79. 8Ó Separate Opinion. Dethmers, Kelly, Black, JJ. Physi- op Injury Highways —Mental Streets —Notice Competency. cal *2 giving written notice in The a to of of defendant specified the the and within time statute is not excused form mentally by reason the the was rendered of fact physically incapacitated injuries as a result sus- of tained, may the statute under since .action brought disability persons legal exemption contains no under of 19). (CL 1948, 1951, §§848.1-842.8, as amended PA No Immunity prom
3. Constitutional Law —Governmental Tort— Separation op Powers. may ways get or to Courts not or words fashion manufacture legislative immunity a a around clear declaration to as of governmental liability, to would unit tort since do so from ju- principle separating violate constitutional law of legislative 4; power power (Const 1908, art dicial from 1963, 3, 2). art Const Notice. 4. Costs —Defective Sidewalk —Written against city by person allegedly in are action No costs allowed injured' mentally physically incom- to- be rendered so as by' sidewalls, de- petent where motion because defective of based, proper judgment on laclo accelerated of for fendant granted (CL 1948, §§242.1-848.8, written notice had been 19). as amended PA No Supplemental Opinion. Separate
Black, Amendment. Statutes —Judicial action', damages judgment city in Reversal of for defendant alleged incapacity injuries resulted in mental have of. for plaintiff by judicial the statute relied amendment of reaching statute to both that in amendment result would far 1948)' (CL 2Í2.1 superseding recent statute and the more '§ 170). 1951, NO‘19; seq.; PA No as et amended PA Law. 6. Same —Construction—Constitutional they apply read as written' statutes plainly are bound to Courts considerations, con- equitable where no without reference though raised, the statute questions have been even stitutional harsh or barbarous. as written be 8i Detroit. -Construction—Legislative Intent. 7. Same — legislature may be.imputed intent enactment No of supported by plainly written law other than such is the. face speculate prob- itself, the law and courts not of able intent legislature'beyond employed words the act. Construction—Hardship. & Same — unambiguous plain, may, that a The in- certain fact great stances, argument hardship work is an should addressed rather than to the court. -Legal Disability Requirement Purpose. 9. Same — —Notice — legislature neglected reason exempt persons under legal disability requirements the notice statute ac- from cording right personal injuries action due to defective highway guard sidewalk or was to the treasuries local units government possibility, probability, if against spurious claims which no could be made defense timely opportunity timely want notice and investigation (CL 242.8). Highway. 10. Action —Statutes—Defective Sidewalk or *3 statutory right .against township, city, village, action The a of injured by accorded one reason a sidewalk or of defective highway, abrogating liability and the common-law such of conditions, municipalities, imposed is within the statute (CL 1948, 242.1-242.8, by 19). as amended PA No §§ Separate Opinion. J., Kelly, Kavanagh, O’Hara,
T. M. O. Adams, and and JJ. Highways Injury. and 11. of Streets —Notice judgment by plaintiff Grant accelerated in suit of for defendant against city damages she a defendant suffered from plaintiff on a sidewalk where was rendered fall defective mentally physically incapacitated and as a result the in- of juries city and sustained who to notice to the failed by days required affirmed, as within 60 statute is as the right statutory asserted to action accrue it must and of timely possess elements, including (CL all the notice §§242.1-242.8, 19). as PA No amended 79. Mich.
Dissenting Opinion. Smith,
Souris and JJ. op Opinions. 12. Courts —Construction language The a decision must be construed of reference and to the that ease. confined facts of Municipal Corporations —Defective of Sidewalk —Notice In- jury —Waiver—Statutes. Statutory requirement bodily injury, written notice al- of legedly neglect sustained keep reason sidewalk under of city control repair in reasonable and in condition rea- of sonably public travel, given safe fit for days within 60 happening the time thereof waived, is, may necessary, circumstances, not be in certain although principle nowhere in the statute is such waiver recognized (CL 1948, 242.8). 14. Same —Defective Sidewalk —Notice. provision according injured in statute one reason right against municipality sidewalk a action defective designed protect public (CL 1948, §242.8). 15. Samet —Defective Sidewalk —Failure to Give Notice. give timely injury, Failure to written notice claimed to have sidewalk, been received because does not bar a of defective injuries claim when the is attributable failure incapacity negli- municipality’s an caused the defendant gence, compel since the law does not seek which is impossible (CL 1948, 242.8). 16. Statutes —Construction. designed existing law, A remedial statute which is an to correct existing grievance, regulations an redress con- or introduce good liberally -public ducive to the is to be construed. Construction—Intent—Absurdity—Injustice. 17. Same — guide statutes, interpreting n Intent is the interpretation made, possible, so to avoid should be if absurdity injustice. manifest Meaning 18. Same —Modification of Words Used. language ordinary meaning statute, *4 the a and Where its of grammatical construction, . leads to a contradiction of manifest enactment, apparent purpose the the or to'some inconven- of absurdity, hardship injustice, presumably in- ience or or not tended, put upon a construction it which be modifies meaning words, the structure and even the of of ok Detroit. meaning particular by giving an unusual either sentence rejecting altogether altering collocation, them words, their words, by interpolating an other under or influence of thus made are that conviction irresistible modifications really give language true and careless mere corrections of intention. Corporations Municipal Sidewalks —Notice—Con- 19. —Defective Injured Competency Person. of of Statutes — struction by remedy persons injured a new which accorded a Statute negligence a side- municipality’s in maintenance of defective necessary that such to show provided that it “be and walk village within said person written notice did serve injury” happening and days the time of from defect, nature said “specify the location that the notice at the sustained, known witnesses and the names mentally injured party is by assumes that time claimant” 1948, 242.8). competent (CL § of Stat- Sidewalk —Notice—Construction 20. Same —Defective Competency. utes —Mental injured by remedy relative to Construction entitled not be that he would sidewalk so a reason of defective incompetent to be rendered so he was recover where required within 60 to be made written unable legislative was mani- ascribing intent that days a would be profit municipality to absurd, permit festly the defendant 1948, 242.8). wrong (CL its own from 21. Statutes —Construction—Maxim. a statute enacts presumed when a It must not remedy therein should giving a included a defendant wrong. by profit permitted his own Municipal Corporations —Torts—Notice. 22. timely gi/oing municipality’s incapacitated tort One automatically pre- thereby is not tort notice of 2-year bringing limitational within the an action cluded from 1948, 242.8). period (CL Appeal Questions Questions Reviewable — Error — of Pacts. Trier law, passed upon action at an Questions of fact point the case on dismissal reason court trial appeal, Supreme law, not determined Court are trial. where case is reversed for *5 Mich 79. 378
84 (Thomas Wayne'; E.), 'Appeal1 Brennan from J. (Calendar 1965. No. 4, 17, November Submitted 50,660.) 8, Decided June No. Docket by Complaint Trbovich, Rachel Nicholas City against guardian, of Detroit,, her Trbovich,. injuries allegedly corporation, municipal for aris- ing. 8, a sidewalk on June 1962, a fall on from expenses. Accel- Dunwoodie W. John appeal. judgment for defendant. Plaintiffs ér'ated Affirmed.
(cid:127) Tryand, (James P. of coun- Hanlon K. Ellsworth plaintiffs. sel), for (cid:127) Corporation Counsel, Reese, Robert Alfred Valenti, Cor- away Assistants F. a and Andrew
8 poration defendant. Counsel, for plaintiff-appellants have Counsel J. Black, controlling question: correctly stated the incapac- physically mentally plaintiff, “Is injuries of a sustained because as a result of itated giving written no- from sidewalk, excused defective tice city and within 'in the form to' defendant chapter specified 22 of the section fh'é time (CL [Stat § general highway 242.8 1948, statute 9.598]) § ?” Ann 1958Rev ,Our. “No.” answer is brought this suit The- statute under No (CL 1951, PA §§ amended 1948, 242.1-242.8, )1 9.591-9.598] §§ includes no [Stat Ann 1958 Rev legislative importing exempting, or words clause disability legal exempt, persons under intent to timely requirement performance of the 691 (CL 1964, No 170 PA Repealed superseded seg.]). et 3.996(101) seq. Supp et Ann 1965 Cum -1401 [Stat l966]: City Trrovicxi ok Detroit. Bi.ack, Opinion by township, village, persons snch bodily injuries public would sue ways. sustained was written in Boike Flint, To what we add direct reference to section' 5 (CL §242.5 [Stat Ann 1958 *6 9.595J). pointedly That Bev section declares that village township, city “No or this state shall be damages, or liable otherwise,” bodily persons upon any for or sustained ways township, village of the cept of such or “ex according provisions under and to the of this legislative act.” Such declaration is clear. The ways courts words to not fashion or manufacture or
get around without offense that exalted principle separates of constitutional law which judicial power legislative power. from the 2 3 City Muskegon, In Davidson 111 Mich 454, provision corresponding we held that charter provisions the notice of the statute could not be rights avoided even where the of an infant were principle applied involved. That must be here. Affirmed, without an award of costs. JJ., Dethmers and Kelly, concurred with Black,
J. Supplemental This Opinion of Justice Black: assigned previously case, to the writer, was sub- arguments mitted briefs November 1965. 4, assignment opinion Pursuant to that the above for affirmancewas ary to the submitted other Justices Janu- opinion
8, 1966. Since then Justice Souris’ supplemental opinion1 reversal, and Justice 359. added [2] See Const Revised Followed by him June in Bankers Trust 1908, June 1. 2 only art 4; Const Co. Detroit regard art Justice 2.—Reporter. Tatti, Souris’ Mich footnote Black, Supplemental Opinion opinion separate for affirmance have been O’Hara’s other Justices. written and delivered causally disposition delay is reflected Our study restudy, following internal record opinions, of additional since and submission foregoing opinion turned in: initial writing by study
February or 8—Case held for Justice Souris.
February Opinion for re- of Justice Souris 23— versal submitted. writing study or
March held for 8—Case M. T. Justice Chief Kavanagh. study writing
April Justice held for 5—Case O’Hara.
April with- 25—Memorandum of Chief Justice drawing “hold” of case. his May opinion Supplemental Justice Black 9— submitted. May Opinion affirm- Justice O’Hara 10— ance submitted.
May study writing *7 or held for further 10—Case by Justice Souris.
Ordinarily, ain situation of unresolvable discord opinions go dissident blind like this, way it table. “That’s our conference round imperative something it Here, however, is is.”2 brought opinion in that for reversal be not visible to-say, that is reversal of circuit fore, proposed judgment will for the reasons court’s retroactively more of the amend much encompassed than that which has been law act under which plaintiff sues.3 Mich at plaintiff on playing Here For a overruling. has there description each sued is no There is opinion which, obnoxious of the infantile day, just any see interpretation minutely desired Keenan poker game result, worded statute County of the aet might the Court Midland, under which the sections seized insists upon 1966]-, 87: of Detroit. Opinion by Supplemental Black, ' against By for and reversal of the our votes cir- judgment we are to amend due retro- cuit court’s actively, all, refuse to amend at two or statutes upon plaintiff planted which than the one has rather her suit. Her a allegedly 1962, year cause arose in under (CLS statute as stood venerable 9.591]). [Stat Ann 1958 Rev 1961, 242.1 Since July No 170, 1, 1965, PA effective then, the and expressly repealed that has statute superseded entitled de- it with another the has liability sign “to make uniform the corporations, political municipal subdivisions, and departments,” agencies State, et its cetera.. n impact aof decision to reverse The inevitable pro-' judgment for the now circuit reasons court’s super-, posed, especially sections and 7 n keep seding to all statute, will be who tab manifest (cid:127) opinions headlong of recent handed trend damages personal in- down for cases wherein juries sought. furtherance of that death' are In actually pro- holding a dual trend —unannounced—is assembly posed; legislative as that the of 1964 well assembly not mean what of 1915did writ-. assembly really statutes; ten into that each both disability, exempt legal meant to claimants under giving timely written the condition of repealed chapter 22 of the notice which section of required now 4 of the new statute section requires. ju-
Assuming going proceed that the Court is (plain-, dicially, far noted that no one thus let it be included) al- has counsel and Justice Souris tiff’s doubtful, phrases, leged .or there are words or phrases, meanings one of words and 8 n sections sued,' plaintiff has the act under which were in of which have stood understood grade legislative school or assembly. not yet *8 .by everyone around More of this testify later, since about seven the intention of us either . n - Supplemental Opinion by Black, regarded hinting might as he that a exempt legal disability is under the aforesaid timely requirement of written notice. This time, for legislative message provides certain, the written as ambiguity peg anyone no for the beret of who plaintiffs freely in bleeds civil cases and defend- ants criminal first cases. So time in our profession written, books is about to find finding legislative purpose an affirmative drawn meaning from phrases dubious words and negative personal ju- but rather a dixit of up century dicial made belief, more than a half after assembly really fact, of 1915 “didn’t negative it”; mean also that such belief leaves the judicial branch free to write into the act affirmative exemption words of which the 1915 chose not to insert or I for one no include. will have part appropriation legislative such crude power, being one sure instance self- where discipline judicial as as well is due self-restraint process. enough,
True
the act as written was harsh and
application
remained so in its
to claimants under
legal disability
60-day period proceeded
while the
end.
its
It
even
as “barbarous,”
be decried
being
currently supplied
judicial
reason for
amendment of those statutes which claimants of
damages
personal injuries
and death sue under
yet
parts
and would avoid as to the restrictive
there-
Accepting
of.
all that, it is nonetheless true that the
judicial
apply plainly
branch
bound to
written
they
question
read,
statutes as
no constitutional
hav-
ing
judicial
been raised below.4 And if
edict
(Boike
It
is true
here, just
Flint),
of and cities for sus- by persons tained defective condition because procedure giving and to highways throughout repeal thereof, State, uniform gen- all laws or acts of same special eral, local inconsistent are with or. post summary or of tb insure the municipality of the (The quoted This at having p 101.) facts crucial motion. .seen has bombast complete physical or not as may “to it that Plaintiff not be a “hard” case. appears in yet her been convicted did [its] eomplaint. and mental the submitted negligence establish under In a disability [was] It having word, opinion n here sufficiently been Rule defendant, negligent, grant reversal,, vietim.”’ gross ' J, Opinion Black, Supplemental contravening provisions herein. All actions brought in court under this act must be within
years from the time said sustained.” (Stat 9.598). 242.8 Ann CL 1958 Rev emphasis present is that of the writer. lawyer, respeetful No conscious for the I (Const §2) constitutional inhibition art applicable (found and the rule construction copious Lansing Township citation in *10 Lansing, 648-650), 356 641 at this could read concluding present statute without it that is the duty again Mercy of Court, the as in the law case of Hospital Crippled Comm., Children’s 340Mich 404 apply at to it as it “without to reads reference equitable considerations.” As written for was the Court then Associate Justice T. M. Kavanagh City Lansing pp 650): (at in the Case may imputed legislature “No intent supported the enactment of law other a than the face of law The the itself. courts speculate probable legislature to as the intent the beyond employed the words act.”6 Surely, by jurisprudential Michigan time, has enough seen this business of research-travel be- yond her borders to locate and cite court decisions which
(a) pretends appeared reports No one in the of a Michigan subsequently State took and scrutiny, enacted the statute in (b) applied No one have claims construed and enactments which at time decision cor- responded precisely with such statute.
n ment great hardship is one rather than the At that a p Justice court,” T. as construed M. Kavanagh should may, be addressed to the wrote further in certain instances, that “An argu work oi? Detroit. Opinion by Black, Supplemental nothing nothing Arid thus far in the law and writ- empirical notion our sustains ten into hooks may second-guess judges seated here newcomer assembly adjourned legislative which met and century ago having after decided amend the half assembly at before as stood time statute (see seq., re-enacting 1915, 4584 et CL 1897, CL seq.). assembly et In and with that was power exclusively Constitution, vested, policy of enact into law the Mich- determine and igan regards right section as of action created assembly chapter 22 of the act. In and just exclusively, right vested, the to Constitution exempt, exempt, persons or not under choose requirements legal disability from the of said sec- assembly exempt tion chose not so for a special reason oft into law. That reason written guard government the treasures of local units of possibility, probability, spurious from the if not against claims which no defense could be made for timely opportunity timely want vestigation. in- assembly
True, have could chosen type the more liberal of statute. But it did not, and repudiate it beseems no member of this Court to *11 choice thus made. respect Now if this Court is to the constitutional
position of
legislative
the third branch vis-a-vis the
if
branch,
its members are to heed the rules we
up
employment
ourselves have set
where stat
utes are
assembly
we
involved, must accord to of
knowledge
1915 due
right
that it had a
to enact—
exemption
refuse to enact—an
of the kind con
example
sidered,*
as shown in Nash v. Inhabi
Hadley,
(13
tants
South
145 Mass 105, NE
377),
Hooge
City
Milnor,
In the Nash Case days injury “to. .the town claimed within after up responsible therefor,” ended to proviso: physical incapacity, if, or mental it' is “hut injured impossible person giye for the the notice to provided may within in said he section, the time give after-such-incapacity death without days 10- the same within having of his removed, case given days having and without for 10 notice, been, injury, at time after ca- sufficient pacity give the' his notice, executor or admin- may days istrator such notice within 30 after appointment.”
his Hooge similarly^ In the required Case days happening notice “within '30 from the of"'such injury.” provide: It then went appears by reputable case it the affidavit of “In- physician fact plained be-prima facie shall evidence of. injured person by.the injury was, com the. mentally .incapable making of, rendered during provided, such statement the time herein may days such statement made be' within 30 after complainant competent such becomes make may but same, such affidavit be controverted on > damages, trial of an action for such- and in case person injured prior of the death of the to his becom ing competent make statement, same days by any be made within 30 after death, his person having knowledge the facts, and.the making spe such statement shall set therein forth cifically relating the facts to such as afore personal knowledge, said, of which he has and shall (Davidson Muskegon, and the Davidson 454). Case 111 Mich solely considered. The two purpose cases are mentioned for the exhibiting exemption Michigan enacted;' kind of has the" exemption legislatures kind of prior properly placed had other enacted in effect." 'and. 1915; standing might the kind the Brethren reversal if, judicial power, they write possessed addition to were ' ' legislative authority. ... *12 ok Detroit. Opinion by Black, Supplemental verify positively verify such statement shall personal stated of which facts therein he has no knowledge, knowledge, best his information and belief.” debating alleged
Since are an we “hard” let case, leg- it be islature, that said the “hard” fact here is that our again decided not timely exempt any requirement claimant from the judicial legislation notice. written That leaves only way plaintiff way by unconstitutional —the — in this action be “excused” that required which section dition of the of8 the statute as a con- coming being, into in her favor, right alleged she has under 1 of section the same statute.
CONCLUSION. dealing We are not a any species .First: with common-law right. dealing Neither are we certainly
common-lawaction. we
If were most
some
thought
us, the writer included, would
due
continuing
to our
tenet
that
the common law is
exclusively
judicial
in the hands of the
and,
branch
impeded
when not
or restricted
statute or con-
provision,
stitutional
it is due at
least
partly prospective8
adjustment,
growth in and
according
the third branch,
well
facts hardships
brought
as the
cases
are
before
scrutiny.
though
branch
Here
the Court
upon
appraise
right
pleading
is called
of a
which,
action
if
at all,
it exists
came into existence
provided
the effect
a statute. That statute
right
imposed
of action
therein.
conditions
Hospital,
T.
Mich 1 at 11.
and M.
M.
T.
Kavanagh,
expression
Supplemental Opinion J. by Black, by right, except judicial branch has no the un- power, exercise of raw to amend it in constitutional persons. any or class of The statute favor allega- being action, as it bars this there no stands performance tion of of the condition said section chapter allegation imposes no of a and con- question. stitutional
Second: It not matter that some here “can does not attribute what that an to do intent” body by actually its written word did. personal always testimony regarded Such has been weightless. as both inadmissible and And if testi mony given of that no in matter whom kind, derogation wording statute, a is now to generally, be made admissible it should barred today’s being instance as matter within better knowledge knowledgeable of all and now deceased persons, Michigan referring legislators purpose, It is their 1915. of view of need and member of this at Court not “there” supposed which is time, upon to count when we are called apply (Husted a venerable enactment 54). body Co., Consumers Power 376 Mich That legislators had before it this Court’s decision in Case, Davidson decision which its succinct paragraph authorizing final stood forth as a stat utory provision requiring timely written notice persons alleged having rights on behalf of all body under the act then to be amended. Too, presumably jection, acceptance had before it, or re exemptive
the kind of statute disclosed the cited and Dakota Massachusetts North cases. exempt. It chose not to The choice thus made should against appeal judicial be sustained as this retroactively insertion, the 1915 amendment, effective “excuse.”
My vote to affirm is reiterated. ok Detroit. loy O’Hara, Opinion J. affirmance). (concurring in I concur- O’Hara, J. ground on the result Mr. Justice Black’s statutory, right action here asserted is the to * possess all the elements. accrue it must require That element. this is an essential Notice brings I re about a harsh result ment in this case my judicial duty gret, Ias but does not alter it. conceive Kelly JJ., J.,C. T. M. Adams, Kavanagh, O’Hara,
concurred *14 (dissenting). her Trbovich, Rachel J. Souris, tripped complaint us, fell over guardian’s and tells city’s sidewalk and slab of defendant an elevated decompensation, developed a cer thereby cardiac completely became condition, ebral arteriosclerotic adjudged subsequently men was and disoriented tally incompetent. brought in her behalf action, This damages appointed guardian, duly by seeks her injuries. city An ac for her from the defendant city judgment defendant in favor of celerated judge by motion on defendant’s the circuit entered complaint was filed. GrCR answer before 1963, 116. which this action was section under The brought as follows: read2 by damages the are 8. In event sustained “Sec. prop- bodily injuries any person, erty, by his either or to any high- the because of defective condition way, bridge, sidewalk, culvert street, crosswalk or any city incorporated village or this State
n wherewritten [injury] inquiry such notice of upon required by such law defect now to be served Ann (Stat 2 See, [*] OL See 1965 Cum Ann 1948, CL currently, 1958 Rev §§ 1948, § 703.1 Supp PA §§ (Stat 242.1-242.8, 3.996[104]). 9.591-9.598).—Reporter. Ann 1962 Rev No as amended § § 27.3178[201]). (CL PA 691.1404, 1951, No 19 Stat Dissenting Opinion Soukis, recovery city village had, can will be before or necessary did writ- such serve to show city village days upon within 60 said or notice ten injury. happening of such Said from time may member of com- be served
notice public city village clerk, or board council, mon commissioner, marshal or other works, street except village policeman officer, or fireman. The or specify will the location and nature said notice and the names of the defect, sustained, at time claimant. If re- witnesses known quired or thereof, the common council committee produce claimant his said shall said witnesses before they committee, commoncouncil or be sworn and examined as to the nature of the claim, injury. amount thereof, and the extent of power common or council committee shall have subpoena hearing. witnesses No other or required. further shall The intent and purpose provisions chapter of this are to part liability townships, make the law of on the villages injuries by persons cities sustained highways because the defective condition of the procedure giving and the notice thereof, uniform throughout repeal State, and to all laws or acts general, special be the same local contravening pro- which are inconsistent with or All visions herein. in court actions under this act brought years must be injury within 2 time said *15 (Stat Arm sustained.” CL 242.8 § 9.598). 1958Rev arguments Mr. Justice two makes for af- Black judgment. firmance of the accelerated First, that quoted statutory language requires, without ex- ception, given city that notice be to within 60 days injury, of an second, that earlier cases of adversely dispositive this Court are plaintiffs’ of ip contentions. arguments We shall consider these reverse order. City 97 Detroit. ok v. Soubis, Dissenting Opinion by
I. by this and other been said courts has often “It language decision must of a be construed that with to the facts that to and confined reference (1893), Mich 361, v. Holcomb Wolcott case.” 215). (23 LRA and issues involved then, the facts consider, Let us by my upon Brother relied in compare cases Black, In Boike of Trbovich. this case them plaintiff (1965), Mich adult City Flint requirement 60-day the. argued that bodily injury apply in an action for not did negligence. This than rather nuisance based court’s dismissal of the trial affirmance Court’s theory. (p rejected plaintiff’s We said suit 464): complied if with time- act, 8 of the “Section that, injured person, [sic] eliminates
wise provided person’s right section of action as abrogates the com- also The same section thereof. mon-law liability city for or on account of the by any person bodily injuries reason sustained neglect keep repair, in et cetera. In recognized leg’ally of the re- waiver absence of quired tardy nothing left notice, written there is injured person, See, as otherwise. infant or Muskegon, 111 Mich Davidson infants, to 454.” n passage. things this Two should be noted about recognizes requirement of notice First, may that the necessary, in “waived”, is, not be although stat- circumstances, certain nowhere principle recognized. Jus- Indeed, ute is the statute tice Black now notes, section village township, “pointedly or declares ‘No damages, or other- shall State liable bodily any person persons wise,’ to township, upon any ways of such sustained *16 Mich 378 by SOURIS, Dissenting Opinion J. according ‘except city village under ” provisions being- notice provisions designed The act.’ of this City public, Holtham v. protect see they can (1904), be Mich how 17, Detroit permission! legislative express absent waived, Rapids (1955), City Grand East Rottschafer 342 the anything, 960). (52 then, If ALR2d 43, Mich strengthens dictum, least its Case, or at Boike recognizes position since Trbovich, of Mrs. statutory support (notwithstanding absence apparently principle thereof) cases earlier namely, notice instances that in certain not, ’did necessary. be “there notice, that absent Boike’s dictum Second, injured person, tardy nothing infant left for the is unsupported completely author- otherwise” is or ity regard and, infants, as to is to “otherwise”, with authority, supported only Case, the Davidson distinguishable factually case, from instant be seen, will infra. argued that Boike stands as then,
It cannot, proposition controlling authority that one for negli- rendered unable gence notice defendant’s thereby precluded seeking after from relief is 60-day period expired. has n Muskegon City Nor Davidson v. is case of authority proposition. (1897), 454, for plaintiff injuries August There sued received on February majority 1, 1892. She attained her presented city damages a claim for city re- council on March 1894. The charter quired damages against that all claims negligence presented after within six months plaintiff’s claim held that arose. Court comply requirement failure to barred her 457) .seeking legal noting (p “It redress, entirely competent for the enact op Detroit. Dissenting Opinion Souris, *17 put general limitations of would adults footing the same and minors on reference to brought.” actions must the time which without Even validity questioned3 passing of this regarded thesis, Davidson need not be a con- as trolling precedent in this case of Trbovich. Ida years legal maturity within two of Davidson was injured. when no There was claim made that she mentally incompetent by injuries, was rendered her appear opinion nor does it in the Court’s notice injury given timely of her could have been plaintiff’s city by parents other, defendant adult or some responsible for her care. In on short, facts, its the Davidson Case is far different from of that Mrs. allegedly mentally
Trbovich who competent, was rendered in- through and thus unable herself or others give injury, accurate notice of her of because negligence. defendant’s (1932), Co. v. Tatti Bankers Detroit Trust of inapt, is also 357, 258 Mich noted Justice Black, guardian
involving it a of a as did claim the workmen’s com- minor death under the benefits pensation claim was not filed within act, prescribed period six limitational months’ compensation Considering statute. the workmen’s it then re- nature”, law “contractual in as was garded by guardian’s the Court denied Court, exception express claim there was no belated because provisions. claimants from limitational minor its case; Michigan cited no Thus, Justice has Black which dictates a result adverse to Mrs. Trbovich’s claim. jurisdictions,
Turning a number to other we find required give notice courts which hold failure to Boike, 462, See the footnote 374 Mich 464: constitutionality 8, applies infants “The of section insofar as yet In legal disability, put tost.” or others under the instant has not as been issue stated nor in the case this issue was not raised below appeal. loo 378 Mich ífJuné Dissenting Opinion by Souris, not bar a claim does when failure incapacity to an attributable caused defend- negligence. They ant’s are noted and summarized margin.4 in tbe
The trenchant comment of Mr.
Butler,
Justice
City
County
Taylor (1930),
Denver v.
88 Colo
(292
concerning
833),
P
ALR
598, 72
interpretation
statutory provisions barring
plaintiff
recovery
if
he
fails
incapable
notice defendant has rendered him
giving, worthy
repetition:
See,
example,
Springs
(1938),
Colorado
Colburn
(81
397)
102 Colo
(failure
P2d
to meet
requirement
we
plaintiff;
adopt
does not bar
“we are
what
inclined
rule,
to be
more
approved
conceive
reasonable and humane
also
*18
by respectable authority,
stances
to
proper
the effect that under
circum
physical
of
incapacity, giving
mental and
of
is
notice
excused,
question
sufficiency
as to
of
to
the circumstances
properly
such
jury,
work
here.”) ;
exeuse
to be submitted to the
as' was done
City
Forsyth
Oswego (1908),
(84
441,
v.
191
444
NY
NE
of
Rep 605)
392,
(“If
plaintiff was,
claimed,
Am
123
St
as he
mentally
physically
to
prepare
present
claim,
and
unable to
and
his
or
preparation
presentation during
its
directions for
and
required by
of the three months within which
whole
he was
present it,
he was
defendant’s charter to
then
to a
entitled
reasonable
comply
to
in
regard.
additional
time in which
with the
charter
compel
is
law
This
because the
does not seolc to
that whieh is im
City
possible”);
(1920),
Tulsa
39,
(191
and
v. Wells
Okla
79
47
of
186) (cited,
approval,
jury
you
P
find and
plaintiff
capacity
he
his
need
instruction that “if
should
evidence,
preponderance
from a fair
believe
of the
age
physical
was of
was so
immature
or that his mental or
alleged
impaired
injury complained
of that
physical capacity
not be of sueh mental or
to
would
seek to know
rights
apprehended
or
them if
understand
stated to him or
searching
enforcing
legal
of
out or
his
or if
remedies
his mental
capacity
reasonably expected
be
was such that he would not
to take
any step
rights were,
what
ascertain
his
then in sueh event he
giving
required by
would
long
was
excused from
the charter so
physical
incapacity
guardian
sueh
as
mental or
existed or until a
City
him”). See, also,
County
appointed
Schulstad
for
v.
and
of
City
(168
68)
(1946),
App
;
Francisco
74 Cal
105
San
ahachie v.
2d
P2d
Wax
Harvey
City
(Tex
App 1953),
549;
Civ
255 SW2d
(Fla, 1952),
Randolph
917;
Miami Beach v. Alexander
61 So 2d
v.
City
Springfield
(257
(1923),
449,
612)
302
33
SW
31 ALR
Mo
City Washington
888)
(1912),
(73
;
Terrell
158 NC
v.
SE
Mc
City
Valley
Spring
(120
(1918),
Donald v.
285 Ill 52
NE
of
Burkard v.
City
Rapids
1359);
Dell
(1955),
ALR
is so to instinct of Mich Dissenting Opinion by Somas, permitted disgrace ought to be never that it any reports of last resort of Christian of the court say preposterous to that the It is State. party remedy wrong give a a for a intended ever and deprive remedy him of that time if at the same perform subsequent some condition failed to he wrongdoer wrong im- rendered it which possible perform. ‘The for him to law countenances always wretched ethics. Its command no such ” justice.’ do It should be noted here that most of the cases from jurisdictions margin in the other cited above and right of a involved the assertion common-law against municipality, action a which action defend sought ant quirement bar invocation of re given
that notice he
before
action be commenced. In
Trbovich,
the other
right
hand, the
of action was created
statute. See
City
Rapids Wyman (1881),
Grand
v.
have
46 Mich
special significance
516. This fact would
if
plaintiff
seeking
were
to avoid the bar of the two-
period
year limitational
contained in the statute
creating
right
for this
has said
action,
Court
period
bringing
that when limitational
suit is
creating
right sought
in a
contained
strictly
enforced,
be
plied
such limitation must he
com
tolling provisions
the.general
and the
with,
statute of limitations
not be invoked to excuse
compliance
example,
therewith. See, for
Bement v.
(1916),
(LRA
Grand R. & I. R. Co.
II. Justice Black’s contention us Let consider now not permit except does statutory language that the those statute requirement from the notice ing injury giving by their incapable rendered in is remedial statute, quoted supra, notice. The inflicted nature, remedy negligently since no such in and thus Michigan, existed at common law construction this Court. entitled to liberal is to an exist correct “A remedial statute is designed or introduce law, redress an ing existing grievance, * * * to public good. conducive regulations In re are construed.” liberally statutes to be Such Town Wyoming Paris and School District No 144. In Kent 284 Mich ships, (1938), County we are to be supposed guided statutes interpreting if and, legislature,5 possible, intent in such language we are to interpret pertinent manifest and way absurdity injustice. as to avoid Judge People, Saginaw Whipple, (1873), ex rel. Circuit 342, 344, 345: Mich primary objeet interpretation or construction “But the of all and is, legislature; statutes to ascertain real intention value, specific interpretation be no which or artificial rules of ean Legislatures grammar are not do this end. not contribute to hardly to schools, country, least, at is reasonable and in this logical legislative grammatical or expect acts to be drawn with strict meaning ascertaining of a accuracy. quite true, It entirely liberty go provision, outside we are not at statute statute no meaning statute furnishes guess at a for whieh the support. this, By used. language must infer the intention from the “We meaning of the however, I not mean we are to consider the do subject abstract, only applied but as particular matter making may in the words aet. And general purpose of the whole seope intent, we real application, this in order ascertain the provision required connection often to consider the language construing the In and the common law. other statutes of the inquire statute, proper what was present it is first by it, and sought to remedied evil or inconvenience nature particulars as well out, in other purpose has been carried how inas this.” [Juné Mich 79.
ÍÓ4 Dissenting Opinion Souris, County (1939), Township Gratiot Elba v. See the Court had construe a There “Moneys provided remaining * * * the tax tó reduce levied shall be used *21 township general highway trial bonds.” The court (p 393): held “ express ‘According statute terms of the mandatory, has been held which, seen, as we have only moneys the tax can be used “to reduce these (by the town- levied.” No tax has levied been ship petitioner) that even follows, therefore, and it eventually though held the 1933 statute be should township compel the a refund payment
valid, of Elba cannot actually to it until it the levies tax the ” of these the tax bonds roll.’ (pp rational Court, however, This was more 394): would seem to result a construction
“While such were followed to if the words of the statute reading think a should still we so strict letter, exact case, instant it when, as in the not be sanctioned would serve no purpose, good would but instead obviously strange and unwarranted results lead to quite conclusively legislature which it seems would have could not have intended. results Such wholly phraseology if of the stat- been obviated and if had with more care, ute by been determined only slight change the words in- made parentheses made to read: had been closed * ** ‘Moneys remaining to reduce shall used be be) gen- (which levied for would the tax otherwise * * * township highway In ascer- bonds.’ eral meaning taining aof often intent and the true brevity attempted of made allowance must expression. “ ordinary language in its statute, a ‘Where a meaning grammatical construction, leads purpose apparent manifest contradiction or absurd- inconvenience or to some enactment, Detroit. Souris, Dissenting Opinion presumably intended, injustice, hardship ity, put upon modifies it which may construction a the structure and even meaning words, by giving sometimes done This sentence. particular words; sometimes meaning to unusual an by rejecting them collocation; or by altering their altogether; or words; under interpolating other conviction an irresistible doubt, no influence, * * * mere are made thus the modifications really give language, and careless corrections Interpretation of Endlich intention.’ the true p § 295.” Statutes, at- principles I cannot mind, the above With to create an intention tribute to the injured remedy our citizens for those of new negligence from its municipality’s exclude but to negligence municipality’s coverage those citizens the incapable meeting renders requirement. *22 place, language
In the first the section given requires chapter that is 22 which notice be upon assumption injured party that the based the competent. provides, Thus it “it will be neces- is sary to show that such did serve written village days notice said within 60 from * ** injury. happening the time specify The notice will the location and nature of injury said the and the defect, sustained, names of ” (Empha- witnesses known at time the claimant added.) language rationally How sis else could this except legislature construed the intended that given notice be who at is able ration- one least ally concerning to communicate with another the injury? particular, facts of the In italicized lan- the guage legislature indicates the envisioned a “knowing” capable who at claimant least something, certainly which is not the case when [Juné Mich 79. Souris, Opinion by Dissenting incompe- mentally rendered has been
the claimant injury. by tent legislature place, to hold
In the second incompetent by defend- that one rendered intended giving tort of defendant’s tort ant’s days from the courts thereof be barred within 60 years begun two within an action is even when legislature injury, a mani- to ascribe to is supra, festly seen, we have which, as intent, absurd statutory required compulsorily lan- is not guage. remedy situa- act was intended wronged by municipality was tion in which one being Surely, remedy. no rational then, left without argue this will that the intended remedy only not so citizens who were to those injured by municipality devastatingly as to be giving incapable written notice rendered incapacitating days Yet within 60 thereof. urged precisely de- which is is the result city. fendant interpretation
Finally, which an of the statute of hand from court bar Mrs. Trbovich out would principle which common-law inconsonant presume legislature has in mind when we must we mind as we statutes, enacts bear interpret namely, not be statutes, that one should wrong. permitted profit by own Garwols his (1930), 251 Mich Bankers Trust Co. question a bastard was whether In Garwols prop- inherit her son who his mother could murdered erty under of descent and the statutes distribution. It could not doubted that under the per *23 language se, to inherit. the son was entitled illegitimate “Every provided, child 1915, 11796, CL mother, his shall be an heir of considered as shall inherit her like if born estate, in manner as Detroit. Dissenting Opinion Souris, being mother dead, The wedlock.”6 lawful to inherit. Nonethe- entitled heir, an was as son, interpretation, an that such concluded less, permitting Court wrong, profit to his so the son manifestly unjust, result, absurd led to such have such could not intended said of The be same to obtain. a result statutory language interpretation in Trbovich of the claim. Mrs. Trbovich’s would bar summary, not law of this does the case State In incapacitated by a compel that one hold us to timely giving municipality’s no- tort from bringing thereby precluded from tort is of that tice two-year period. limitational an action within jurisdictions authority in other well, is, There contrary support conclusion. which lends inferentially supports language 8 itself of section legislature intended notice the conclusion giving capable given was someone when there compel language us bar does it, and alleged incapacitated claim who is someone’s giving Since bar from notice. escape unjust, permitting defendant would be very grievousness liability of the of the of the because charged, wrong and, it is view with which would such result statute, remedial nature give a who fails to absurd, we hold: One injury allegedly incorporated village an notice of days negligence of its oc- within 60 its caused mentally incom- rendered because he was currence injury, petent does a result of the but to do so as two-year give within able, notice when he is period of the is not automatical- statute, limitational two-year ly bringing suit within barred pass period. trier of fact should Rather, timely no- of failure the issue cause 6 See, Ann currently, (Stat 1962 Bev CL 702.81 §27.3178 [151]). *24 378 -79. Dissenting Opinion J. by Souris, favorably plaintiff, if it be resolved tice, and strictly comply require- with the notice
failure fatal to suit. not be bis ment will point must be considered. other Mrs. One injured on the in was sidewalk front of Trbovich 8823 Birwood
avenue, Detroit, 8, on June 1962. injury, was After her she driven her home a stranger, Strehl, who resided at Mr. Charles Detroit. From her home she was Wisconsin, taken hospital. plaintiff’s 13, 1962, June On son-in- complaint law, Dunwoodie, John filed with the police department, Detroit in which the site of the injury given is, as 8323 in Wisconsin, was front family Mr. his the Strehl residence. Strehl and day very left Detroit of the accident' and did not return until sometime in 1963. months after Six Wayne accident, 1962, on December 5, coun- ty probate appointed Nicholas court Trbovich guardian By of Mrs. letter dated Trbovich. Janu- ary plaintiffs’ attorneys informed defend- 29, 1963, corporation injury, giving, ant’s counsel of the police department report reference to John complaint, place Dunwoodie’s the its of occurrence as sidewalk front of Mr. Wisconsin, Strehl’s Upon residence. denial of claim, Mrs. Trbovich’s complaint county Wayne was filed circuit July complaint court on and in 23, 1963, place injury given was as 8823 in- Birwood, formation obtained from after his Mr. Strehl return to Detroit. assuming January
Thus, that the notice filed 29, timely, days 1963 was since made within 60 appointment guardian of a Trbovich, Mrs. de- argues place fendant that the variance between injury given place given in that notice and the complaint judge in the is fatal. The trial did not pass upon point, this nor should do so at we Detroit. ok Souris, Dissenting Opinion now proceeding the scant record stage us. before appointed guardian Decem- was Trbovich’s Mrs. given January notice was
ber appointment. days That of his within defining erred in that it defective, the correct occurred, but place where the *25 complaint given filed in the place was re- July this issue must he As I view it, 1963. 23, that Mrs. was found If solved: incompetent proper mentally no- rendered tice, that guardian given her the best notice was the January given 29, 1963? time, at could be days having come within suffice, it would so, If depend appointment. would This, course, of his locating practicability upon Mr. Strehl. As as source was available Mr. Strehl soon as given been correct should have information, complaint city. filing prior on Thus, if to the plaintiffs July had, should 23, 1963, counsel knowledge the acci- locus of of the actual had, have thereof, to inform the dent, and failed January given 29th, the notice variance between might complaint given fatal he the notice in the plaintiffs’ action. Overton to Detroit cause of (1954), Mich 650. and remanded This case should he reversed opinion. proceedings this in accordance with further s.7 plaintiff Costs concurred with J. J., Souris, Smith, of scorn” corous attacks judgment. But sure, considered, (Volpone, Agreeing with now that I am indolent. my jonson act (Back I I will be excused am content Brother has in his scene to Methuselah. As that “Calumnies Shaw that “Silence opinions 1), to let the Surely, gone I have upon my too far endured public record refute personal are answered best depth of this is the most Far honor, my integrity, my insinuating, response, unprecedented Brother Thought perfect unmerited wound those attacks. with silence” Black’s Can slyly expression Beach) to be ran my 79. Dissenting Opinion Souris, me, exculpatory opens innuendo with which Justice Blacic “Supplemental Opinion”:
his latest Although my upon Brother notes the date which the ease was assigned served other facts him, 4, 1965, November and the date which he opinion, January 8, 1966, curiously his neglects he to mention equally knowledge, namely, within his upon upon the date my opinion served, February 23, 1966, which was or the date “Supplemental Opinion” served, May 9, 1966, just his. day day. our eloquent one before last conference These omissions Dryden’s apothegm: guilt by call to mind “Seeret silence is be trayed”. Panther, (The part Sind and the 763.) line For those among unwilling accept Dryden’s writings us precedential Mr. as of worth, pronouncements greater of another author of somewhat notoriety legal in local circles examined to find stated the against party” “rule of produce unfavorable inference who fails to Company evidence within his control. See Prudential Insurance (1963), America v. Cusick 369 Mich 285.
GENERAL MOTORS CORPORATION v. EMPLOY MENT SECURITY COMMISSION.
Decision of the Court. Unemployment Compensation —National Contract —Extension Supplier Supplied *26 of Strike Plant Plant Em- Same ployer. unemployment compensation court’s denial of benefits to Circuit employees plant at in this State which was shut down because parts supplied by employer’s of lack plant struck in another subject State which extending to national union contract plants strike to foreed to close reason of such strike is grant by appeal employment reversed and of claims board security upheld (CLS 1961, 421.29). commission § [1, [3] [11] Construction and What constitutes labor 30A Am 2,4-10] .benefits pensation and Retirement Funds ing provisions 2 Am Jur 5 Am Jur, Jur 48 Am because of labor 2d, References or social Judges 2d, Administrative Law 747. Appeal application Jur, unemployment compensation 89§ security dispute, strike, Social and Error 36.§ et seq. disputes Points Security, acts provisions regarding disqualification or strikes. et Unemployment lockout, Headnotes seq. unemployment act. 91 L ed 146. within ALR2d 287. disqualify- Insurance, com-