Citizens Casualty Co. v. City of Detroit

154 N.W.2d 567, 8 Mich. App. 379, 1967 Mich. App. LEXIS 476

• Court: Michigan Court of Appeals
• Decided: November 28, 1967
• Docket: Docket No. 2,260
• Status: Published

Opinion

Lesinski, C. J.

Plaintiff, as subrogee of the own-

ers of a building in the city of Detroit, appeals from an accelerated judgment entered for the defendant city of Detroit. . . .'

'A fire occurred on August 22, 1965, in a vacant building owned by the defendant, Tbe fire spread to an adjacent'building owned by Raymond Zimmerman, Kathleen Zimmerman, and Isam Clark. This building was insured by,the named owners with the plaintiff insurance company which paid the owners $5,500 and was subrogated to .the rights of its assured to the extent of the named amount. Plaintiff gave notice of its claim to the common council of the city of Detroit on Noyember 19, 1965, and,in December of 1965, filed its complaint against the city, in which it alleged defendant’s negligence.

Defendant moved for accelerated, judgment, asserting that it had not received written .notice of the loss until November 24, 1965 — some 90 days following the fire — and cited provisions of the city charter² pertinent thereto which require that notice be served upon the corporation counsel within 60 days,' and also provide that failure to present a demand or claim to the common council is a sufficient bar to proceedings brought to collect thereon.

The thrust of plaintiff’s reply to defendant’s motion for accelerated judgment was that the city received actual notice through its agent, the Detroit fire department. The fire department was called to the fire, and plaintiff alleges that this constituted, substantial compliance with the notice requirement. Plaintiff’s reply relied upon the law set forth in Gable v. City of Detroit (1924), 226 Mich 261, which we discuss infra. The city filed a brief in support of its motion, to which plaintiff replied. Plaintiff’s principal argument therein sought a liberal construction of the notice provision and, in alleging the propriety of same, asserted that since the defendant’s fire department and other authorized agents had notice of the fire and investigated the damage done thereby immediately after it occurred, no prejudice resulted from the tardy receipt of written notice.

The court below granted the motion for accelerated judgment,³ noting that calling the fire department may be notice of the existence of the fire, but does not constitute notice of any claim by plaintiff as to defendant’s negligence.

Plaintiff appeals from the accelerated judgment entered pursuant thereto.

The issue before us is whether plaintiff’s claim was barred by failure to comply with the 60-day notice provision of the city charter where the city, through its fire department, had knowledge of the fire and the resultant damage for which plaintiff sought to recover through a negligence action.

Plaintiff argues on appeal that the purpose of the charter requirement is twofold; i.e., to confine a plaintiff substantially to the character of the defect alleged, and to afford the city an opportunity to investigate. Plaintiff argues that since these purposes have been fulfilled in the instant case, no prejudice can result from.its failure to file notice in timely; fashion, and seeks, in effect, a judicial waiver of the requirement,

Even if we were to agree with the premises upon .which plaintiff builds to reach the desired result, we could not take the final step in reasoning sought through this appeal.

In Ridgeway v. City of Escanaba (1908), 154 Mich 68, 70, the Supreme Court said:

“We have been inclined to favor a liberal construction of statutes requiring notice of claims, and have not denied relief when by any reasonable interpretation the notice could be said to be in substantial compliance with the statute, or where the defect had been waived by the council.”

Recently this Court had occasion to employ the above-quoted language in Murphy v. City of Detroit (1966), 2 Mich App 473. In the Murphy Case we held that an ordinance provision for the computation of time, which excluded the last day if it fell on Sunday, constituted a waiver so that where the terminal day of a notice period fell on Sunday, plaintiff’s notice delivered on the following Monday was sufficient and valid notice. It is apparent that the facts of the instant case do not present a Murphy situation.

This Court has endeavored to follow the principle of Ridgeway, supra, to favor a liberal construction of statutes requiring notice of claims where the facts fairly permitted such construction.⁴ However, to construe the facts in the instant case as plaintiff seeks would be to distort, if not destroy, the relevant' provisions of the city charter. '

In Gable v. City of Detroit, supra, the applicable' notice provision required service upon the corporation counsel or his chief assistant. Plaintiff addressed her notice to the common council and her claim was made out by an employee in the city clerk’s office who forwarded a copy to the corporation counsel. The Court found substantial compliance with the charter provision, saying- at 264:

“The fact that the notice was addressed to the common council is unimportant; that the notice was served on the corporation counsel by an employee in the city clerk’s office instead of by plaintiff or her attorney is likewise unimportant.”

To review briefly the facts in Gable is sufficient to distinguish it.

For a recent case wherein the Supreme Court affirmed an accelerated judgment for the defendant city where the notice was not given in timely fashion, we refer to Trbovich v. City of Detroit (1966), 378 Mich 79.

. In the instant case, plaintiff relies upon the theory of substantial compliance. The reasoning' of the trial court below contained, in its brevity, the best answer to this contention. Notice to the fire department that a fire occurred is indeed notice of the existence of a fire. It cannot, by any mental contrivance, be distorted to become, as well, notice of claim by the plaintiff that the fire was negligently started or permitted by the defendant city.

A caveat is requisite, however, to limit this decision to the circumstances presented by the instant case.

Plaintiff here did not question the applicability of the charter’s 60-day provision. Neither case law nor current statutory provisions dealing with governmental . immunity .were adverted to by the .parties herein, although this cause of action arose subsequent to the- effective date of PA 1964, No 170, OL 1948, § 691.1401 et seq. (Stat Ann 1965 Chm'Supp § 3.99.6[101] et seg.),⁵ which delineated the status of governmental immunity in Michigan.

’Affirmed. Costs to- appellee. ■■

J. H. G-illis and Levin, JJ., coücurred.

2 Title 6, eh 7, §-11 of the 1968 edition of .tbe charter of the city of Detroit reads, in part: “It shall be a' sufficient bar and answer to any action or proceeding in any court for the .collection .of any demand or claim against shid city that it has riever been presented to the common council for audit or allowance.”

Title 6, eh 7, § 12, states:

■ “No aetion shall be brought against the eity nor any of its boards, commissions, or officers for any negligent injury unless it be 'commenced within 1 year from the time when the injury was received, ilor unless written' notice' be served upon the corporation counsel, or his chief assistant, within 60 days from,the time of the happening of such injury, which notice shall specify the’location and nature of the defect claimed, the injury sustained, and the names of the witnesses known at the time by claimant.” ,,.

3 See GCK 1963, 116.1.

4 See, e.g., Anthonsen v. State Highway Commissioner (1966), 4 Mich App 345.

5 PA 1964, No 170, § 15, gives the effective date as July 1, 1965.