Township of Hart v. Noret

158 N.W. 17, 191 Mich. 427, 1916 Mich. LEXIS 685

• Court: Michigan Supreme Court
• Decided: June 1, 1916
• Docket: Docket No. 49
• Status: Published

Opinion

Ostrander, J.

(after stating the facts). It is the! general rule that whenever the wrongful act of one person results • in liability being imposed on another, the latter may have indemnity from the person actually guilty of the wrong. The exception to the rule is that as between actual tort-feasors the law will not enforce contribution or indemnity. The rule of the exception, one of public policy, has not generally been extended by courts. Public policy demands that two or more j wrongdoers shall be left as to each other where their! joint offense leaves them. It does not require that con-1 sequences of the wrong of one person shall be visited, without indemnity, upon others, not particeps criminis,\ or in pari delicto. In his work on Torts (1st Ed.), pp. 144, 145, Judge Cooley, in stating the same principle, says:

“As under the rules already laid down the party wronged may, at his election, compel any one of the parties chargeable with the act, or any number less than the whole, to compensate him for the injury, it becomes a consideration of the highest importance to the person or persons, thus singled out, and compelled to bear the loss, whether the others who were equally liable may be compelled to contribute for his relief. On this subject there is a general rule, and there are also some very important exceptions. The general rule may be found expressed in the maxim that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of Ips own wrong-doing, the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one concerned in committing it. But there are some exceptions to the general rule which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of others.”

The rule has been many times, and almost universally, applied in favor of municipal corporations called upon on account of some violation of the statutory duty to keep highways fit for travel to pay persons injured upon the highways, by excavations, obstructions, traps, and nuisances placed therein by third persons. In such cases, usually, the liability of the municipality to the injured person is predicated of omission to remedy a defective condition, and of the actual wrongdoer to the municipality of his actual wrongdoing. Thus in Inhabitants of Woburn v. Railroad Corporation, 109 Mass. 283, the defendant, to allow a person to move a building over the street, took down one of the posts supporting its warning sign, leaving a considerable hole in the highway, which remained during the period, some three weeks, that was required to move the building in sections. A traveler on the highway fell into the hole and was injured. He recovered a judgment against the municipality, which paid it and sued the railroad company for indemnity. See, also, City of Boston v. Coon, 175 Mass. 283 (56 N. E. 287); City of Holyoke v. Hadley Co., 174 Mass. 424 (54 N. E. 889); City of Lowell v. Glidden, 159 Mass. 317 (34 N. E. 459); Inhabitants of Swansey v. Chace, 16 Gray (Mass.), 303; Inhabitants of Lowell v. Railroad Corporation, 23 Pick. (Mass.) 24 (34 Am. Dec. 33) ; Mooney v. Light Co., 185 Mass. 547 (70 N. E. 933); Trustees of Canandaigua v. Foster, 156 N. Y. 354 (50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575); Baltimore, etc., R. Co. v. Howard County, 113 Md. 404 (77 Atl. 930) ; City of Seattle v. Improvement Co., 47 Wash. 22 (91 Pac. 255, 125 Am. St. Rep. 884, 14 Am. & Eng. Ann. Cas. 1045), s. c., with notes, 12 L. R. A. (N. S.) 949; City of Wabasha v. Southworth, 54 Minn. 79 (55 N. W. 818); Robertson v. City of Paducah, 146 Ky. 188 (142 S. W. 370); s. c., with notes, 40 L. R. A. (N. S.) 1153; Gridley v. City of Bloomington, 68 Ill. 47; Durant v. Palmer, 29 N. J. Law, 544; City of Chicago v. Robbins, 2 Black (67 U. S.), 418; Bailey v. Bussing, 28 Conn. 455; 3 Dillon, Municipal Corporations, § 1035, and notes; Catterlin v. City of Frankfort, 79 Ind. 547 (41 Am. Rep. 627); McNaughton v. City of Elkhart, 85 Ind. 384; Brown v. Town of Louisburg, 126 N. C. 701 (36 S. E. 166, 78 Am. St. Rep. 677); City of Raleigh v. Railroad Co., 129 N. C. 265 (40 S. E. 2) ; City of Grand Forks v. Paulsness, 19 N. D. 293 (123 N. W. 878), s. c., with notes, 40 L. R. A. (N. S.) 1158; City of San Antonio v. Smith, 94 Tex. 266 (59 S. W. 1109).

It is evident, I think, that the learned trial judge, called upon to apply a rule, considered only the relations of the several parties, involved as defendants in the two actions, to the injured man, and did not consider their relations to each other. And he may have been misled by the concluding portion of the opinion rendered in McRae v. Township of Hart, in which the right to recover against all defendants in that action is affirmed. The injured man, McRae, might havel brought his action against either the township, the| Gurneys, who owned the mill and maintained the race] and bridge, or Noret. Each of them owed him a duty.| He joined as defendants the Gurneys and the township. As between the Gurneys and the township, the latter had the right, under the statute, to repair the bridge and charge the cost to the Gurneys. But the act of Noret in removing the bridge railings and substituting others, creating a nuisance in the highway, was what involved the township and the Gurneys, who omitted, it seems, to repair a condition created by Noret.

The declaration fairly states a case of unlawful and unwarranted interference by defendant with a lawful and safe structure — a bridge — in the highway, and what resulted therefrom. It is not legally infirm for any of the reasons set out in the demurrer. The defenses open to defendant are indicated in City of Lansing v. Railroad Co., 129 Mich. 403 (89 N. W. 54), Grant v. Maslen, 151 Mich. 466 (115 N. W. 472, 16 L. R. A. [N. S.] 910), and Grand Rapids Lumber Co. v. Blair, 190 Mich. 518 (157 N. W. 29).

The judgment is reversed, with costs to plaintiff in error.

Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.