Van Auken v. City of Adrian, 98 N.W. 15

Van Auken v. City of Adrian

98 N.W. 15

Mich.

1904

Check Treatment

Grant, J.

(after stating the facts). The provision of the charter reads as follows:

‘ ‘And all claims for damages against the city growing out of the negligence or default оf said city, or of any officer or employé thereof, shall be presented to the common council of said city in the manner above provided, and the рlace and circumstances out of which said claim arose shall be fully set forth therein, within three months after such claim shall arise, and, in case of any default thereof, said claim shall thereafter be forever barred.” Act No. 321, Local Acts 1897, § 112.

Plaintiff’s counsel claim that the notice required by the statute was waived by the action of the council. The right of action had been barred for nearly three months before claim was made to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍common council. No testimony was taken, and no trouble or expense was incurred by plaintiff’s decedent. His counsel voluntarily presented some affidavits to the common council. Under plaintiff’s *538oрening statement, the claim was not presented as a matter of right, but the attornеys for the decedent urged upon different members of the council “the justice оf giving this old man something for his injuries.” The investigation asked and promised was not intended or designed as the basis of a right of action. The only assurance given by the members of thе council in their individual, not official, capacity, was that they would investigate, аnd, if they thought he ought to have anything, they would recommend that the council give him somеthing. All that the council did was done pursuant to this promise. Plaintiff’s decedent was not lullеd into a feeling of security, as was the plaintiff in Renackowsky v. Board of Water Com’rs, 122 Mich. 613 (81 N. W. 581). If any one was lulled into action оr nonaction, it was defendant, through its common council, by a request on the part of the plaintiff’s attorneys to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍consider the claim as a matter of grace. Action founded upon such a request does not form the basis for waiver or estоppel. See the recent cases of Blumrich v. Village of Highland Park, 131 Mich. 209 (91 N. W. 129); Chamberlain v. City of Saginaw, ante, 61 (97 N. W. 156).

The provision of the charter was one of limitation, and not merely the requirement of a notice as a сondition precedent to bringing suit. It operated as a bar to the right of action as effectually as would the general statute of limitations. Under a statute whosе language was not so strong as this in fixing a limitation of the action, we said, speaking through my Brother Hooker, “The statute is an unambiguous limitation on the right to bring an action after the lapse of a year.” We also said, speaking of the negotiations between the claimant and the city officials, under circumstances somewhat similаr to this:

“We are not informed that these negotiations were more than a listening to importunities of plaintiff’s counsel, and a patient hearing and investigation ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of whаt he had to offer, with a view to recommend some recompense for plaintiff’s injury, if convinced that he had a meritorious *539case, notwithstanding the statute had run against his right of action; and there is nothing to indicate that the members of the committee had a suspicion that plaintiff did not know that the council had taken actiоn, and there is nothing in the record that indicates that the council, or even the committee or city counselor, supposed that the plaintiff was deferring the commencement of suit in reliance on a supposed intention to adjust his clаim.” Klass v. City of Detroit, 129 Mich. 35, 37 (88 N. W. 204).

Many cases from this and other courts upon the question of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍waiver or estoppel are there cited and commented upon.

This was an action of tort, and, once barred, cannot be revived. Vickers v. Stoneman, 73 Mich. 419 (41 N. W. 495); 19 Am. & Eng. Enc. Law (2d Ed.), 289 Oothout v. Thompson, 20 Johns. 277; Peterson v. Breitag, 88 Iowa, 418 (55 N. W. 86); Goodwyn v. Goodwyn, 16 Ga. 114; Galligher v. Hollingsworth, 3 Har. & McH. 122. The circumstances under which thе statute of limitations is suspended and parties ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍estopped to set it up by reason of their own wrongs are sufficiently discussed in Klass v. City of Detroit, supra. Mr. Grant, his attorneys, and the members of the council all fully understood that he then had no legal claim against the city; in other words, they knew that his claim was absolutely barred by the statute. Can the officers of a сorporation, by consenting to consider a claim absolutely barred by the statute, revive it ? No such authority can be implied, and, in the absence of express authority, it does not exist. We are cited to no case holding that it does.

Judgment affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred with Grant, J. ' Moore, C. J., concurred, in the result.