State Mutual Cyclone Insurance v. O & a Electric Cooperative
This text of 161 N.W.2d 573 (State Mutual Cyclone Insurance v. O & a Electric Cooperative) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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The question presented is whether we affirm the trial court’s decision that the 3-year statute of limitations barred plaintiffs’ claims, or the Court of Appeals’ holding (5 Mich App 452) that [320]*320the 6-year statute is applicable and plaintiffs’ causes should hot have been dismissed.
Plaintiff State Mutual Cyclone Insurance Company, on July 15,1964, filed the following complaint:
“1. That the plaintiff, State Mutual Cyclone Insurance Company, is a Michigan insurance corporation, doing business in the State of Michigan, and the assignprs of the plaintiff, Charles A. Baker and Euth M. Baker, are residents of Hersey township, Osceola county, Michigan. That the defendant is a Michigan nonprofit corporation with principal place of business in Newaygo county, Michig’an, and is in the business of supplying electric current to various customers throughout Osceola county and other adjoining areas.
“2. That previous to the 10th day of May, 1961, the defendant agreed to sell to plaintiff’s assignors electric current to be used for lighting and power purposes on the farm belonging to the plaintiff’s assignors.
“3. It was the agreement on the part of the defendant to the plaintiff that it would supply such current and the current would be supplied in quantities to serve the purposes of light and power in voltages acceptable to the use of such appliances owned by the plaintiff’s assignors either of 110-volt or 220-volt current.
“4. That on the 10th day of May, 1961, the defendant supplied to the lines entering the property of the plaintiff’s assignors current in much greater voltages than that agreed upon by the parties, which current when so supplied was unusable and very dangerous, which caused damage to the plaintiff’s assignors’ premises.
“5. That this supplying of such excessive surges of electric current in contravention of the contract between the plaintiff’s.assignors and.the defendant carised the death of 10 head of the plaintiff’s assignors’ cattle. ' .
[321]*321“6. That the plaintiff as insurers of the plaintiff’s assignors paid to the plaintiff’s assignors $3,350 in payment for said cattle and took an assignment from the assignors to this plaintiff. * * *
“7. That the special damage incurred by the assignors included the loss of 10 head of cattle.”
Plaintiff Pioneer Mutual Insurance Company, on the same date, filed a similar complaint, with the exception that it alleged that it had paid its assignors, Albert A. Zimmerman, Mary Lou Zimmerman, and Eldon Zimmerman, $3,850 as compensation for their loss of 11 head of cattle.
Defendant 0 & A Electric Cooperative filed two third-party complaints against Wolverine Electric Cooperative, alleging that Wolverine contracted to maintain the necessary switching and protective equipment so that 0 & A Electric could furnish proper electric power to the Baker and Zimmerman farms, and asked judgment against Wolverine Electric Cooperative for any sum which may be recovered by plaintiffs against defendant. A motion was made for accelerated judgment in each case.
The cases were consolidated at pretrial.
The trial court, relying upon Coates v. Milner Hotels, Inc. (1945), 311 Mich 233; and Baatz v. Smith (1960), 361 Mich 68, concluded its written opinion as follows:
“It is the opinion of this court that defendants -have timely raised the defense of the statute of limitations as set out in CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805) ;1 that plaintiffs seek re[322]*322covery for injury to personal property; that plaintiffs have failed to commence their actions within three years of May 10, 1961, when their actions accrued; and that plaintiffs’ actions are barred by said statute of limitations.
“Therefore, defendants’ motion for accelerated judgment in each of these cases is hereby granted.”
In Coates v. Milner, supra, plaintiff sued the hotel for damages sustained when assaulted by another guest of the hotel, claiming damages because of breach of an implied contract to protect plaintiff against intrusion. The question presented was whether an action to recover damages for personal injuries was subject to the 3-year limitation statute (CLS 1943, § 13976; Stat Ann 1944 Cum Supp § 27.605). This Court answered in the affirmative.
In Baatz v. Smith, supra, plaintiff claimed damages in assumpsit against a hotel for injuries caused by a former guest who exploded dynamite in the hotel, injuring plaintiff. "We held that the 3-year statute of limitations controlled.
In a written opinion, the Court of Appeals first set forth CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805), quoted above, which the trial court held was applicable, and then. CLS 1961, § 600.5807 (Stat Ann 1962 Rev § 27A.5807),2 and stated:
[323]*323“From a reading of these statutes we are convinced that the first was intended to apply to tort actions and the second to apply to contract actions.”
The Court of Appeals then called attention to the fact that a party injured by a breach of an express contract involving negligence may waive his contract action and sue in tort, that Coates and Baats were not controlling because they were assumpsit actions based upon implied contract, and concluded (p 459):
“We perceive the rule to he that where an action is brought to recover damages for injury to person or property on a claim arising out of a tort or an implied contract the 3-year statute applies. If an action is brought on an express contract the 6-year statute applies, even though damages are sought for injuries to person or property.”
The Court of Appeals did not cite a single Michigan case, or a case from any other jurisdiction, in [324]*324support of its conclusion, and its decision is contra to the great majority rule in the United States.3
When this Court decided Baats, we stated that if a plaintiff seeks recovery for damages for injury to person or property the 3-year rule applies irrespective of how plaintiff proceeded to seek such recovery, and we said (pp 70, 71):
“Plaintiffs suggest that Coates should be re-evaluated and overruled. The only question is the meaning of the statutory language. It limits, in express and plain words, to 3 years, actions to recover damages for injuries to person. Such was the nature of the action in Coates. The statutory language permitted of no other holding in the case. It was right then. It still is. And so, here, whether brought in tort or assumpsit, these are actions to recover damages for injuries to person. Accordingly, the 3-year limitation applies.”
When we compare the statute in effect when the Baats decision was handed down, which provided:
“Actions to recover damages for injuries to person or property and actions for trespass upon lands shall be brought within 3 years from the time said actions accrue, and not afterwards,"
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Cite This Page — Counsel Stack
161 N.W.2d 573, 381 Mich. 318, 1968 Mich. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-mutual-cyclone-insurance-v-o-a-electric-cooperative-mich-1968.