Mikelsavage v. City of Detroit

73 N.W.2d 266, 343 Mich. 566, 1955 Mich. LEXIS 346

• Court: Michigan Supreme Court
• Decided: December 1, 1955
• Docket: Docket 52, Calendar 46,493
• Status: Published

Opinions

Reid, J.

Plaintiff brought suit against defendant city alleging that while she was a pedestrian walking on the sidewalk in defendant city she was injured, thrown to the sidewalk with great force and violence, suffered physical injuries, without negligence and without contributory negligence on her part, and that her injuries were due to the sole negligence of the defendant because of the hazardous condition of the sidewalk as maintained by defendant, the sidewalk being not in a reasonably safe condition fit for travel and negligently maintained by the defendant. The declaration describes the condition of the sidewalk claimed to be hazardous, unsafe and so maintained by the defendant. After the filing of a declaration and answer thereto, with reply of plaintiff to the affirmative allegations in the answer, the defendant moved to dismiss the plaintiff’s suit for failure to comply with ordinance of the city of Detroit 506-E, § 1, which, in part (as set forth in defendant’s brief), is as follows:

“Power is hereby delegated to the corporation counsel to audit and allow or reject, subject to the approval of the common council, all damage claims, including personal injury and property damage, (exclusive of any such claims against the department of street railways), and such other claims as are the immediate subject of litigation.”

Acting under authority of ordinance 506-E, § 1, defendant’s corporation counsel notified plaintiff’s attorney that a hearing on her claim would be held in the corporation counsel’s office. Plaintiff refused to comply with said city ordinance, and notice thereunder. Plaintiff offered compliance with CL 1948, § 242.8 (Stat Ann § 9.598), the pertinent portions of which (after specification of what notice must be given the city in cases of this sort) are as follows:

“The notice will specify the location and nature of said defect, the injury sustained, and the names of the witnesses known at the time by claimant. If required by the common council or committee thereof, said claimant shall produce his witnesses before said common council or committee, and they may be sworn and examined as to the nature of the claim, the amount thereof, and the extent of the injury. The common council or committee shall have power to subpoena witnesses for such'hearing. No other or further notice shall be required. The intent and purpose of the provisions of this chapter are to make the law of liability on the part of townships, villages and cities for injuries sustained by persons because of the defective condition of the highways and the procedure in giving notice thereof, uniform throughout the State, and to' repeal all laws or acts of the legislature be the same general, local or special which are inconsistent with or contravening the provisions herein.” (Italics supplied.)

The court cited and in part based his opinion on Detroit city charter, title 6, ch 7, § 11, and title 3, ch 1, § 13(c), which charter provisions were not offered by counsel nor received in evidence nor do they appear in the record. Defendant did not base its motion to dismiss upon charter provisions, hence, they are not before us for consideration.

The trial court dismissed plaintiff’s suit, for failure to comply with the notiee served on her by defendant.

In the instant ease the claim was filed with the city council and the corporation counsel received notice; hence, plaintiff complied with the requirements commented on in Grand Trunk Western Railway Company v. City of Detroit, 342 Mich 537. But differing from the Grand Trunk Company Case, in the instant case defendant demanded plaintiff to come to a hearing before the corporation counsel. No hearing before the corporation counsel, but notice to the corporation counsel, is spoken of in the Grand Trunk Railway Company Case, which case has, therefore, no bearing upon the decisive question involved in the instant case, namely, hearing before the corporation counsel.

In Knapp v. City of Detroit, 295 Mich 311, we say (syllabus 8):

“Unsworn written notice of claim for injuries, sustained by plaintiff because of defective street, given to city within 60 days from injury, was sufficient notice, notwithstanding charter requirement that claim be verified, especially in view of requirement of the general highway law in respect to such claims that ‘no other or further notice shall be required’ than written notice upon the municipality within 60 days.”

“No provision of any city charter shall conflict with or contravene the provisions of any general law of the State.” CL 1948, § 117.36 (Stat Ann § 5.-2116).

In support of her opposition to the motion to dismiss, plaintiff offered the affidavit of her attorney which, among other things, recites:

“That deponent arranged for an investigator of the defendant to interview his client the above-named plaintiff, and had her appear for a medical examination at Receiving Hospital for the city of Detroit; that on July 8, 1954, deponent advised the city clerk, that he was willing to arrange for his client and her witnesses to appear before the common council, or a proper committee of said body, in accordance with the statute, to-wit * * * [CL 1948, § 242.8 (Stat Ann § 9.598)].”

The ordinance in question attempts to alter and enlarge the permissive authority conferred upon the common council or committee thereof to conduct a hearing and would substitute for such common council or committee thereof, an appointive official contrary to the plain meaning of the statute. The statute had set forth the procedure.

The ordinance in question as construed and applied by the trial court contravenes the statute and would tend to defeat the purpose of the statute as set forth in the portion thereof above cited, namely, uniformity of procedure throughout the State of giving notice to municipalities of injury because of defective condition of highways. It is fairly to be implied that there should be, after notice is served, uniformity of procedure including - hearing of the nature in controversy. The ordinance is void in respect to the hearing in controversy. Other questions raised herein, need not in view of our decision, be directly answered.

The order of dismissal is reversed. The matter is remanded to the trial court for further proceedings. Appellant may have costs of this appeal.

Carr, C. J., and Sharpe, Boyles, and Dethmers, JJ., concurred with Reid, J.