Frenzel v. City of Muskegon

174 N.W.2d 145, 20 Mich. App. 581, 1969 Mich. App. LEXIS 894

• Court: Michigan Court of Appeals
• Decided: December 8, 1969
• Docket: Docket 7,061
• Status: Published

Opinion

Per Curiam.

Defendant city owns Hartshorn Park Marina. Third-party defendant operated the marina under a written lease from the city by which the lessee agreed to save and hold harmless the lessor from any claims and damages which might arise for bodily injury or property damage as a result of lessee’s occupancy of the premises and conduct of business thereon.

June 9, 1963, while attempting to launch his boat at the public ramp at the marina, Joseph Prenzel slipped and fell. June 17, 1964, plaintiffs filed their action against the city to recover damag*es for the injuries caused by the fall.

May 16, 1967, pursuant to court order, the city filed a third-party complaint against Arthur Gunn on the basis of the “save and hold harmless” provision of the lease.

The city settled the plaintiffs’ claim against it and pursuant to stipulation dated December 17, 1968, plaintiffs’ action against the city was ordered dismissed with prejudice.

In his answer to the third-party complaint, third-party defendant pleaded that the city’s claim against him was barred by the statute of limitations because the city failed to assert its claim ag’ainst him within three years of the Prenzel accident.

December 3,1968, a hearing was had on the city’s third-party action. Evidence was introduced and briefs were submitted. By written opinion dated February 14, 1969 and on tbe basis of State Mutual Cyclone Insurance Company v. O & A Electric Cooperative (1968), 381 Mich 318, the trial court held that the city’s third-party claim was barred by the statute of limitations and by order pursuant to this opinion, the city’s third-party action was dismissed. This appeal followed.

MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805) reads:

“No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.”

The time prescribed for the type of action represented by the plaintiffs’ complaint is three years.

We do not conceive this section applicable to the city’s claim against third-party defendant. The city is not seeking to recover damages for injuries to persons or property, nor is the city’s claim derivative in any sense. The city’s third-party action asserts a contract claim for indemnity and the six-year limitation provided in MCLA § 600.5807 (Stat Ann 1962 Rev § 27A.5807) applies.

The authority relied on by the trial court and the other authorities relied on by third-party defendant are inapposite. State Mutual Cyclone Insurance Company, supra, involved a derivative claim arising out of a claim for injury to property. Coates v. Milner Hotels, Inc. (1945), 311 Mich 233, involved a direct claim for personal injury, as did Baatz v. Smith (1960), 361 Mich 68.

Although the trial court heard the evidence on which it could have decided the question of the third party’s liability to the city under the lease, it chose not to do so and dismissed the action solely on the issue of the statute of limitations. Had the trial court decided the liability issue, this Court would he able to review that decision, and conceivably, in that situation, this Court could have determined the liability issue contrary to the determination pf the trial court. In this case, we have nothing to review with respect to the liability issue and we decline to decide it.

Reversed and remanded for trial with costs to the city.