Morgan v. McDermott

169 N.W.2d 897, 382 Mich. 333, 1969 Mich. LEXIS 108

• Court: Michigan Supreme Court
• Decided: September 3, 1969
• Docket: Calendar 2, Docket 51,958
• Status: Published

Opinions

Adams, J.

1. The Facts and Proceedings.

Plaintiff filed a complaint as administrator of tbe estate of Sbaron Rose Morgan, deceased, who was killed on January 29, 1964, at tbe age of 12, while a passenger in an automobile owned and driven by Eva L. B aimer. ' The Balmer car collided with an automobile owned by defendant Andrew J. Mc-Dermott, Jr., and driven by defendant James Alan Coak. ...

On April 20, 1965, defendants moved to join tbe board of county road commissioners of Oakland county as a third-party defendant. Tbe tbird-party complaint alleged that tbe county road on which tbe accident happened was unsafe; that tbird-party defendant had knowledge of that fact but failed to take corrective action; and that its failure to do so contributed to cause the accident. Defendants, as third-party plaintiffs, sought judgment against third-party defendant for contribution of one half of any judgment against them. Defendants based their demand on the statute and court rule which permit one tort-feasor to add another tort-feasor as a third-party defendant in order to obtain contribution. CLS 1961, § 600.2925(1) (Stat Ann 1962 Rev § 27A.2925[1]); GCR 1963, 204.1.

On May 24, 1965, third-party defendant filed a motion for accelerated judgment alleging that the first, notice to it of any claim of defective highways and of the accident was the statements contained in the third-party complaint and that, as a consequence, the claim was barred because of failure to give notice pursuant to the requirements of CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121). The trial court granted the motion and dismissed the third-party complaint.

The Court of Appeals reversed and disposed of the case by holding that section 224.21 containing the 60-day notice requirement does not apply to an action for contribution between joint tort-feasors arising out of a wrongful death claim. (1967), 8 MichApp 260j 263,265.

'2. Right ok Contribution as Between Joint Tort-Feasors.

Prior to the effective date of the revised judicature act (January 1, 1963), the only remedy available to one joint tort-feasor against another was by chancery action for contribution (CL 1948, § 691.564 [Stat Ann 1959 Cum Supp § 27.1683(4)]) taken in pursuance of PA 1941, No 303, being CL 1948, § 691-.561.eí seq. (Stat Ann 1959 Cum Supp § 27.1683[1] et seq.). See Husted v. Consumers Power Company (1965), 376 Mich 41, 47. CL 1948, § 691.561, supra, since repealed by RJA, read as follows:

“Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making-such payment: Provided, however, That no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment.”

In Husted, this further statement appears (p 47):

“The act of 1941 was changed in minor degree (to accommodate the new procedure only and not to change the substance) and reenacted as section 2925 of the revised judicature act of 1961 (CLS 1961, § 600.2925 [Stat Ann 1962 Rev § 27A.2925]).”

Section 2925 of RJA is as follows:

“(1) Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such-defendants, each defendant who has paid more than his own pro rata share is entitled to contribution with respect to the excess so paid over and above the' pro rata share of the defendant - or • defendants-making such payment. Joint tort-feasors who ;are. summoned in as third-party defendants pursuant to court rule may likewise be liable for contribution. No person may be compelled to pay to any othér defendant an amount greater than his pro rata share of the entire judgment.”

G-CR. 1963, 204.1(1) provides:

,,“Subject to the provisions of section 3030 of the insurance .code of 1956, before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may thereafter be liable to such third-party plaintiff, by right of contribution or otherwise, for all or part of the plaintiff’s claim against him.”

The committee comment which follows Rule 204 states:

■ “The language of this rule differs from the Federal counterpart in another respect. The purpose of the change is to overcome the decision in Buckner v. Foster [ED Mich, 1952], 105 F Supp 279, in which the Michigan contribution among .joint tort-feasors act was .construed in light of the Federal Rule 14. It was there held that the right of contribution given a joint tort-feasor arises under the Michigan statute only after a several judgment against the defendant in excess of his pro rata share of liability, and thus impleader of the joint tort-feasor was denied. Such a result is not sound. Rule 204 will allow Michigan courts to avoid the decision of the Buckner Case, since impleader is authorized whenever a person not a party ‘may thereafter be liable to such third-party plaintiff by right of contribution or otherwise.’ This should include also the substantive right of contribution given a joint tortfeasor in libel cases by CL 1948, § 691.571 (Stat Ann § 27.1401).”

In Husted, supra, Rule 204 was declared not to create substantive rights, (p 47.) The substantive basis for defendant’s claim ag’ainst the third-party defendant must be found elsewhere before the rule becomes operative, (p 47.) The substantive rights and liabilities of parties to an action are determinable according to the law as it stood when the causes alleged by the plaintiff accrued, (p 47.)

The third-party practice introduced to Michigan by the revised judicature act of 1961 and Rule 204 has no bearing on the decisional outcome of this case. The present statute (CLS 1961, § 600.2925 [Stat Ann 1962 Rev §27A.2925]) governing contribution between joint tort-feasors still requires that a money judgment first be recovered before the right to contribution comes into existence. It makes no attempt to define a joint tort-feasor or what constitutes tor-tious conduct or who may or may not be liable for the commission of a tortious act. All that Rule 204 does is to permit adjudication of liability — such liability as may be found to exist elsewhere in the law — in one trial if the trial judge so orders. Consequently, in this case, if the third-party plaintiffs are to obtain contribution from the third-party defendant, they must look beyond the provisions of the RJA and the GrCR as to contribution and establish a substantive basis for their cause of action by other means.

3. Liability op Counties por Depeotive Roads.

In 1893, the legislature, by Joint Resolution No 11, proposed an amendment to the State Constitution (1850) to be known as section 49 of article 4. PA 1893, p 433. The amendment authorized the legislature to enact laws for the laying out, construction, and maintenance of county and township roads on the condition that any act passed by the legislature for this purpose shall provide for a county and township system and the county system shall become operative only in such counties as shall adopt it by a majority vote of the electors. The proposed amendment was ratified by the people at the April election of 1893. PA 1893, p 451.

Subsequently, the legislature proposed a system of county and township roads by the passage of PA 1893, No 149, effective May 26, 1893. Section 21 of the act (CL 1897, § 4282) in part provided:

“The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system.” (Emphasis added.)

It was in this fashion that the statutory liability of a county that elected to adopt a county road system was created.

To determine that liability, it is necessary to examine the liability of townships, cities, villages, and corporations for damages for injuries resulting from a failure of performance of the duties respecting roads under their control. In 1893, this was prescribed by PA 1887, No 264, set forth as chapter 91, CL 1897, being sections 3441 through 3445. Liability of townships, villages, or cities for damages for bodily injury or injury to property sustained upon any of the public highways, streets, bridges, et cetera, could only be established in accordance with the provisions of the act. By section 5 of the 1887 act, common-law liability was abrogated (CL 1897, § 3445). Chapter 91 of CL 1897 became chapter 22 of the general highway law. See CL 1948, § 242.5 (Stat Ann 1958 Rev § 9.595).

In addition to the above statutory provisions as to liability, in Roberts v. City of Detroit (1894), 102 Mich 64, the Court said (p 66):

“Municipal corporations, in Michigan, are liable for injuries resulting from their neglect to repair public highways only where made so by statute. That there is no common-law liability was decided in the ease of City of Detroit v. Blackeby (1870), 21 Mich 84, which was a crosswalk case. It was followed by McCutcheon v. Village of Homer (1880), 43 Mich 483-. The earlier case contains an exhaustive discussion of the subject, holding that the duty of cities to repair highways is a public one, and that a private action does not lie for negligence in such cases. Subsequently a statutory liability was created, and it is under this statute that the plaintiff must recover, if at all.” (Emphasis added.)

In Rufner v. City of Traverse City (1941), 296 Mich 204, it was said (p 209):

“The reason that a city was not liable at common law for injuries caused by defective highways was because the duty to repair was a public one, and thus, since the city in the management and control of its highways was acting in a governmental capacity, it was immune from liability. City of Detroit v. Blackeby (1870), 21 Mich 84 (4 Am Rep 450); Roberts v. City of Detroit (1894), 102 Mich 64 (27 LRA 572). In effect the above statute [CL 1929, § 4225, CL 1948, § 242.3] removes the exemption from liability and declares that the city must keep its highways reasonably safe for travel.”

In Cabana v. City of Hart (1950), 327 Mich 287, this language appeared at page 300:

“We are here concerned primarily with the interpretation of the provisions of the general highway law, above quoted, which, as pointed out in the Rufner Case, modified to the extent there indicated the doctrine of governmental immunity on the part of municipal corporations of the State.” Liability of a county for damages was continued in the general hig’hway law in section 21 of chapter 4 (CL 1948, § 224.21 [Stat Ann §9.121]) by the words:

“The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system.”

These are the identical words which appeared in the initial act and which have been previously quoted in this opinion. See PA 1893, No 149, § 21. They have been preserved in the last amendment to section 224.21. See PA 1954, No 12 (CLS 1961, §224.21 [Stat Ann 1969 Cum Supp § 9.121]). This language has appeared in section 21 throughout its legislative history.

Proceeding according to the language quoted from section 224.21 above, to ascertain what is the basis of liability for damages by townships, cities, villages, and corporations, resort must be had to chapter 22 of the general highway law, designated “Recovery of Damages,” appearing at CL 1948, § 242.1 et seq. In 1915, by PA 1915, No 301, three new sections were added to this chapter to stand as sections 6, 7, and 8. They appear without change as CL 1948, §§ 242.6, 242.7, and 242.8 (Stat Ann 1958 Rev §§ 9.596, 9.597, 9.598). These three sections relate to notice of defective conditions and claim for injury or damage. The county is not named in any of the three sections — sections 6 and 7 referring to “township, village or city” and section 8 referring to “city or incorporated village.”²

Section 8 contained the following language:

“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.”

The requirements in section 8 for written notice were:

“In the event damages are sustained by any person, either by bodily injuries or to his property, because of the defective condition of any highway, street, bridge, sidewalk, crosswalk or culvert in .any city or incorporated village of this state where written notice of such injury and defect is now required by law to be served upon such village or city before recovery can be had, it will be necessary to show that such person did serve written notice upon said city or village within 60 days, from the time of the happening of such injury.”

Manner of service and contents of the notice were spelled out.

In the same year (1915), the legislature also amended section 21 of chapter 4 (CL 1948, § 224.21) of the general highway law, dealing with county roads, but' the amendment related to completion of roads under construction and no 60-day notice requirement of injuries or damages was imposed on behalf of tbe county as bad been done on behalf of cities and incorporated villages by foregoing section 8. See PA 1915, No 75.

In 1919, section 8 was held by this Court not to apply to townships. McIntyre v. Township of Grant (1919), 206 Mich 223, 227. In that year the legislature clarified the notice requirement to counties by passage of PA 1919, No 388, requiring service of a written notice within 60 days after injury where the county road system was involved. See CL 1948, § 224.21.³

4. The Scope oe the 60-Day Notice Requirement.

In construing liability of boards of county road commissioners under section 224.21, consideration must be given to the 1951 amendment to section 1 of chapter 22 by PA 1951, No 19, which added the words “and to any person suffering damages by reason of such injury.” (Emphasis added.)⁴ What is the scope of this amendment? Judge Noel Fox held that it did not apply in an action for wrongful death in Kraus v. Board of County Road Commissioners (WD Mich, 1964), 236 F Supp 677. The Michigan Court of Appeals followed his reasoning. 8 Mich App 260, 264. The use of the words “any person” appears inappropriate to such a conclusion. In Kraus, in an unreported opinion, Judge Fox later reconsidered his first holding and dismissed the action for lack of the statutorily required notice. He was upheld hy the United States court of appeals, Kraus v. Board of County Road Commissioners (CA 6, 1967), 385 F2d 864.

In Kraus, the action was brought by a special administratrix, the widow of a man who had been injured on a highway and who died from such injuries. She sued the boards of county road commissioners of two counties alleging negligence in failing to keep the roads in a condition reasonably safe and convenient for public travel. The widow’s suit was brought pursuant to the provisions of the wrongful death statute. If her husband had survived the accident and had brought an action against the counties for damages because of his injuries, he would have been required to give the 60-day notice. Since the widow did not give notice until suit was filed almost two years after the accident and since she was held not to be relieved of the requirements of the statute, she was out of court.⁵

In this case, defendants stand as third-party plaintiffs in asserting their rights against the third-party defendant. They make no claim'against Oakland county because of bodily injuries suffered by them. Their action is for contribution from an alleged joint tort-feasor. There has been no trial on the merits — no adjudication that defendant and third-party defendant are joint tort-feasors. The liability of the third-party defendant has yet to be established.

We have seen that the procedural rule permitting impleader creates no substantive rights of contribution. Due to its governmental immunity, the liability of a county is purely statutory. Common-law liability, if any, was abrogated both by statute and by decision of this Court. The only statute that sets forth any liability of a county relating to the construction or maintenance of county roads is CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121). In this case, we need not determine whether section 224.21 will permit an action for contribution or is limited to actions to recover for personal injuries and property damage.

The notice requirement as it appeared in chapter 22 of the general highway law subsequent to enactment of the 1915 act adding sections 6, 7, and 8 (CL 1948, §§ 242.1-242.8 [Stat Ann 1958 Rev §§ 9.591-9.598]) was held by this Court to' be mandatory and applicable to claims against cities for injuries allegedly caused by defective conditions of a sidewalk or highway. Sykes v. City of Battle Creek (1939), 288 Mich 660, involved a suit for damages for personal injuries sustained when stepping off a curb. No notice of claim of injury was served on the city. It was argued that the city charter requirement of notice within 60 days from date of injury conflicted with the general statute of limitations in force at the time the charter was adopted and consequently the requirement was void. The argument was rejected, the Court saying (p 663):

“The intent of the statute [citing section 8, supra] was to make uniform both the procedure for giving notice and the liability of cities throughout the State for highway defects. To that end all inconsistent ‘general, local or special’ acts were expressly repealed, and the notice requirement of 60 days from the happening of the injury expressly approved. The Battle Creek charter fully complied with the statute.”

The action in Boike v. City of Flint (1965), 374 Mich 462, was for damages resulting from a fall on an icy sidewalk. It was argued that sections 1, 5, 7, and 8 of chapter 22, supra (CL 1948, § 242.1 et seq. [Stat Ann 1958 Rev § 9.591 et seq.] ) created a right of action for “bodily injury” based upon negligence but not upon nuisance and consequently the 60-day written notice requirement applies solely to actions based upon negligence and does not apply to actions based upon nuisance. In a per curiam opinion, the Court said (pp 463, 464):

“We are not disposed to enter upon a. discussion of the distinctions between a right of action based on negligence and a right of action based on nuisance. * * * It is ruled simply that the requirement of statutory notice applies to any and all actions for ‘bodily injury’ sustained by reason of neglect to keep streets of a city, or ways of a city under city control, in reasonable repair and in condition reasonably safe and fit for public travel, and that the statute makes for its purposes no distinction between the various theories of recovery that are open to a person claiming damages for such ‘bodily injury.’

“The provisions of section 8 are plain. They are lay understandable as well as professionally understood, and are mandatory. Since plaintiff lost his cause for ‘bodily injury’ under the statute, by reason of failure to comply on time with said section 8, he is now possessed of no right of action — against the defendant city — on account of the conditions which caused the injury and consequences he has pleaded.”

A fall on a sidewalk was the basis for complaint in Trbovich v. City of Detroit (1966), 378 Mich 79. Notice was not given the city within the time limitation of the statute and such failure was sought to be excused on the ground plaintiff became mentally and physically incapacitated as a result of her injury. Dismissal of the action by the trial court was affirmed, six Justices predicating their decision on the proposition that the right of action, being statutory, must fail if shown to be lacking in any of the statutory elements'. Notice was an essential element.

In Kowalczyk v. Bailey (1967), 379 Mich 568, plaintiff was denied relief by summary judgment against her on a cause of action against the city for injuries due to failure to remove an illegally parked automobile as an obstruction in the street after the city had notice of its presence because of plaintiff’s noncompliance with the statutory requirement of written notice to the city within 60 days.

In view of the foregoing so-called city cases, it follows that the statutory 60-day notice is applicable to any action that may be maintained against boards of county road commissioners under the statute.-⁶ Whether or not an action against the board of county road commissioners for contribution as a joint tort-feasor because of an automobile accident on a county road qualifies as one for bodily injury or property damages within the meaning of CLS 1961, § 224.21, is immaterial to a decision in this case.

Third-party plaintiffs are in this dilemma: either governmental immunity has not been waived as to an action for contribution such as they assert, or, if reliance is placed on the statute, third-party plaintiffs cannot insist on its benefits because the statutory 60-day notice was not given.⁷

The Court of Appeals is reversed. Trial court is affirmed. Costs to third-party defendant.

ADDENDUM.

Justice Black has assumed a “common liability” between third-party plaintiffs and third-party defendant arose at the time the accident happened. In the ordinary case of joint tort-feasor, such an assumption would be entirely warranted. I do not believe it can be made here due to the fact that the board of county road commissioners’ tortious act, standing alone, by virtue of the provisions of section 224.21, does not result in liability to anyone unless the 60-day notice requirement is met. In the usual joint tort-feasor case, we do not have to reckon with the doctrine of governmental immunity. We do here.

As pointed out in the body of this opinion, in Michigan, prior to the statute, the construction and maintenance of public roads was for the benefit of the traveling public and no rights as to the condition of the highway existed in the individual user. Consequently, there was no duty of road maintenance owing to an individual which would support an action at the common law in the event of a breach.

A county had governmental immunity and could not be liable for its torts, absent statutory authority. It follows that it cannot be liable as a joint tort-feasor except in so far as the shield of immunity has been statutorily removed and a liability created. The condition of liability is compliance with the 60-day notice requirement. Until it has been fulfilled, there is no liability. The county’s immunity cannot be lost simply on the basis of its having been a joint tort-feasor rather than its having been the sole tort-feasor. The public policy behind the 60-day notice requirement is even more compelling in the case of a claim of joint tort-feasance than when the county only is the alleged tort-feasor.

To follow the reasoning of Justice Black, a county is immune from liability in the case of its being the sole tort-feasor unless the 60-day notice is given, and yet the county may become liable in contribution years afterward where the claim is of a joint tort without such notice, without being impleaded, and without the opportunity speedily to investigate the claimed tortious conduct.

In Hach Investment Co. v. Concrete Wall Company (1959), 356 Mich 416, plaintiff sued to obtain contribution from defendant. A judgment had been rendered against both of them and was paid by the plaintiff. This Court held that plaintiff’s suit for contribution was properly dismissed because of a statutory requirement that the action must be brought in chancery within 6 months after discharge of the judgment. The suit was not begun ■within the required statutory period. Justice Carr, writing for a unanimous Court, said (pp 421, 424) :

“Prior to the enactment of the statute above cited the rule was well settled that there was no right of contribution or indemnity as between joint tort-feasors guilty of actionable negligence, or in pari delicto. In exceptional cases, in which technical wrongdoing was distinguished from actual negligent conduct, recovery was permitted by a defendant, forced to make payment of the judgment, from a party responsible for the injury and damage resulting in judgment. * * *

“The legislative action was basically in derogation of the common law only as it abrogated the rule that as between tort-feasors generally there Avas no right of contribution. The statute clearly covers the class of cases formerly recognized as possible exceptions to the general rule, and the intent is manifest from its language that a uniform method of procedure shall be observed.

“Unquestionably one asserting a statutory right of action in derogation of the common law must establish that he is within the terms of such statute. This Court in Yount v. National Bank of Jackson (1950), 327 Mich 342, 347 (17 ALR2d 685), quoted with approval from Hamilton v. Jones (1890), 125 Ind 176, 178 (25 NE 192), as follows:

“ ‘ “Statutes in derogation of the common law are to be strictly construed, and one who seeks to maintain an action which Avas within the prohibition of the common laAV must be able to point to a statute Avhich in plain and explicit terms authorizes the action to be maintained. A plaintiff who sues on a right of action given by statute must present a case clearly within the statute which creates the right.” ’ ”

To reiterate, the common-law liability of a county in this case, if it ever existed, has been abrogated both by statute and by decisions of this Court. Only a statutory liability remains. The terms of the statute must be met.

In the case of White v. Johnson (1965), 272 Minn 363 (137 NW2d 674), cited by the Court of Appeals, a truck collided head on with an automobile which veered from its lane of travel and collided with another automobile. The occupants of the automobile sued the truck driver and he filed complaints against the city of St. Paul on the basis that the city had negligently maintained the highway. The supreme court of Minnesota held that the truck driver could preserve a derivative claim against the city for either contribution or indemnity by his own adequate notice of claim against the city, despite absence of claim against the city by the occupants of the automobiles. In disposing of the city motion for summary judgment, the Court said (pp 366, 367):

“Although there are decisions in- other States holding that actions for contribution or indemnity may be maintained against a municipality despite noncompliance with statutory provisions requiring prior notice or presentation of claims against a municipality,² we have held that the failure to give timely notice as required by our notice of claim statute, Minn St 1961, § 465.09, precluded an action for indemnity against a municipality. American Automobile Insurance Company v. City of Minneapolis (1961), 259 Minn 294 (107 NW2d 320). In that case the insurance company made a settlement of an action against its insured property owner for damages sustained by a person injured in a fall at a point where a private ramp met a defective city sidewalk. The injured party did not give notice of a claim against the city and neither did the property owner or its insurance company until after the settlement was made, some 3 years after the injury occurred. ¥e held that the action involved a claim for injury based on negligence, not contract, and that the failure to give notice within 30 days of injury as required by section 465.09 ‘prevented any liability on the part of the city from existing.’ 259 Minn 298 (107 NW2d 323). This result was necessarily based upon our conclusion that the wording of the statute applicable to this case is broad and inclusive and that notice is a prerequisite to maintaining an action for indemnity or contribution against a municipality even though such a claim is contingent at the time notice is required to he served. The opinion left open the question, however, whether the action could have been maintained had timely notice been given.”⁸

The 60-day notice requirement is a condition “to any liability * * * for damages sustained by any person * * * either to his person or property,

by reason of any defective county road, bridge or culvert.” (CLS 1961, § 224.21 [Stat Ann 1958 Rev §9.121].)

T. E. Brennan, C. J., and Kelly and T. M. Kava-nagh, JJ., concurred with Adams, J.

2 All of chapter 22, which included sections 6, 7, and 8, was repealed by PA 1964, No 170, effective July 1, 1965 (MOLA §§ 691-.1401-691.1415, Stat Ann 1969 Cum Supp §§ 3.996[101]-3.996[115]). Since the accident in this ease occurred on January 29, 1964 and the complaint was filed on March 17, 1965, with leave granted on,April 20, 1965 to join the third-party defendant, the repeal is inapplicable to this ease. Even if third-party plaintiffs were factually in, a position to bring their eross-aetion under the 1965 act, they would not benefit thereby because of the following language quoted from PA 1964, No 170, § 2: .

“The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the-Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948.”

3 This section was amended by PA 1951, No 234, to require actions thereunder to be brought against the board of county road commissioners. It was last amended in 1954 by PA 1954, No 12, relating to the service of notice. At the time of this action the controlling provisions were as follows:

“It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system. Actions arising thereunder shall be brought against the board of county road commissioners of the county and service shall be made upon the clerk and upon the chairman of the board made defendant therein, which shall be named in the process as the 'board of county road commissioners of the county of.......’ ”

4 As amended, the pertinent features of section 1 were:

“Any person * * * sustaining bodily injury upon any of the publie highways or streets in this State, by reason of neglect to keep such public highways or streets, * * * in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway * * * and whose duty it is to keep the same in reasonable repair, such township, village, eity or corporation shall be liable to and shall pay to the person * * * so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the ease before any court of competent jurisdiction.”

5 In an application for rehearing filed in the Michigan Court of Appeals, it was pointed out that United States District Court Judge Fox subsequently reversed his position reported in 236 F Supp 677 and later held the notice provisions of the statute (CL 1948, § 224.21) were applicable in an action brought under the wrongful death act, whieh conclusion was uphold by the United States court of appeals for the 6th circuit in an opinion issued November 30, 1967, with copy attached to the application for rehearing. Nonetheless, the application for rehearing was denied on January 23, 1968,

6 As bearing on the basis of liability of the board of county road commissioners, see Moore v. County of Ingham (3961), 363 Mich 533.

7 In Grand Trunin Western Railroad Co. v. City of Detroit (1955), 342 Mich 537, plaintiff’s employee was injured by a sign the city had attached to a pole. The railroad, after settling its employee’s elaim, sought indemnification or contribution from the city. It was held that the action eould not be maintained because plaintiff had failed to eomply with statutory and charter prerequisites necessary to malee defendant subject to suit. Justice Butzel stated (p 541) : “Under either of plaintiff’s theories the requirements of the charter are mandatory and were not complied with.” While the ease does not further discuss the reason for such a holding where the action is one for contribution, the holding is squarely in point here.

2 “2 Valstrey Service Corporation v. Board of Elections (1957), 2 NY 2d 413 (161 NYS2d 52, 141 NE2d 565); Minneapolis, St. Paul and Sault Sainte Marie R. Company v. City of Fond du Lac (CA7, 1961), 297 F2d 583 (93 ALR2d 1378).” (Minnesota footnote.)

8 As to Justice Black’s comments under point 2 of his summary, since there was no notice given in this case, we do not have a question of right of notice by a third-party plaintiff before us. That he has come to a correct assumption, however, is not necessarily so. In White, supra, the Minnesota court reasoned to a contrary result. The Court said (pp 370, 371) :

“Our statute requiring notice does two things. It compels notice to a municipality, but it also destroys the municipality’s common-law immunity from liability for negligence in the maintenance of its streets and public grounds. Thus the statute concurrently creates a duty upon the municipality to use due eare and a right against the municipality on the part of any person damaged because of a breach of that duty. We have here, then, a right and a duty pre-existing the injury. * * *

“The more precise characterization of the notice requirement is that it is a condition precedent to bringing suit for the practical purpose of quietly informing a municipality of injuries for which it might be liable. Conceptually, the giving of notice is an essential element of the cause of action, but realistically, because of the preexisting right and duty, liability is created at the instant the tort is committed. The eity is then subject to a liability, and it is no more unexpected that a eity might settle a claim before the giving of notice than that private parties might settle before commencement of suit. We have held that a covenant not to sue secured by one wrongdoer does not destroy the common liability necessary for contribution. And the majority of the courts hold that running of the statute of limitations against one defendant on the plaintiff’s claim does not bar a suit for contribution against him. The reasoning underlying these decisions is that joint liability arises the moment the tort is committed and these defenses eome into being after the conduct whieh creates that liability. Moreover, since the right to recover contribution is based on equitable principles and has the objective of compelling joint wrongdoers to share responsibility for damages inflicted by their tortious acts, the conduct of the person from whom contribution is sought ought to control the right to maintain the aetion. The objective of contribution has equal validity where one of the tort-feasors is a municipal corporation. To permit a personal defense against the injured plaintiff to destroy the right to contribution from a municipality under the circumstances disclosed in this ease would not only frustrate the basic aim of permitting recovery between participating tort-feasors but would deny third-party rights against a municipality where the statute creating it neither expressly nor by fair implieation-so intends.

“We are of the opinion that these reasons are applicable to a statute making notice a condition precedent to bringing suit. Accordingly, we hold that the right to recover contribution is not defeated by the failure of the plaintiffs to give notice to the city.” (Emphasis added.)

The Minnesota court held that a notice by the third-party plaintiff, even though only as to his own claim against the city, was sufficient to permit impleading the city as a third-party defendant for purposes of contribution.