Trbovich v. City of Detroit

142 N.W.2d 696, 378 Mich. 79, 1966 Mich. LEXIS 67

• Court: Michigan Supreme Court
• Decided: June 8, 1966
• Docket: Calendar 17, Docket 50,660
• Status: Published

Opinions

Black, J.

Counsel for plaintiff-appellants have correctly stated the controlling question:

“Is a plaintiff, mentally and physically incapacitated as a result of injuries sustained because of a defective sidewalk, excused from giving written notice to' the defendant city 'in the form and within fh'é time specified in section 8 of chapter 22 of the general highway statute (CL 1948, § 242.8 [Stat Ann 1958 Rev § 9.598]) ?”

,Our. answer is “No.”

The- statute under which this suit was brought (CL 1948, §§ 242.1-242.8, amended by PA 1951, No 19 [Stat Ann 1958 Rev §§ 9.591-9.598] )¹ includes no clause exempting, or words importing legislative intent to exempt, persons under legal disability from performance of the requirement of timely statutory notice to the township, village, or city snch persons would sue for bodily injuries sustained on public ways.

To what was written in Boike v. City of Flint, 374 Mich 462, we add direct reference to section' 5 of the statute (CL 1948, §242.5 [Stat Ann 1958 Bev § 9.595J). That section pointedly declares that “No township, village or city in this state shall be liable in damages, or otherwise,” to any person or persons for bodily injury sustained upon any of the ways of such township, village or city “except under and according to the provisions of this act.” Such legislative declaration is clear. The courts may not fashion or manufacture ways or words to get around it without offense to that exalted principle of constitutional law which separates the judicial power from the legislative power.

In Davidson v. City of Muskegon, 111 Mich 454,³ we held that a charter provision corresponding to the notice provisions of the statute could not be avoided even where the rights of an infant were involved. That principle must be applied here.

Affirmed, without an award of costs.

Dethmers and Kelly, JJ., concurred with Black, J.

Supplemental Opinion of Justice Black: This case, previously assigned to the writer, was submitted on briefs and arguments November 4, 1965. Pursuant to that assignment the above opinion for affirmance was submitted to the other Justices January 8, 1966. Since then Justice Souris’ opinion for reversal, this supplemental opinion¹ and Justice O’Hara’s separate opinion for affirmance have been written and delivered to the other Justices.

Our delay of disposition is reflected causally by the following internal record of study and restudy, and submission of additional opinions, since the foregoing initial opinion was turned in:

February 8 — Case held for study or writing by Justice Souris.

February 23 — Opinion of Justice Souris for reversal submitted.

March 8 — Case held for study or writing by Chief Justice T. M. Kavanagh.

April 5 — Case held for study or writing by Justice O’Hara.

April 25 — Memorandum of Chief Justice withdrawing his “hold” of case.

May 9 — Supplemental opinion of Justice Black submitted.

May 10 — Opinion of Justice O’Hara for affirmance submitted.

May 10 — Case held for further study or writing by Justice Souris.

Ordinarily, in a situation of unresolvable discord like this, the dissident opinions go the blind round of our conference table. “That’s the way it is.”² Here, however, it is imperative that something not visible in that opinion for reversal be brought to the fore, that is to-say, reversal of the circuit court’s judgment for the reasons proposed will amend retroactively much more of the statutory law than that which has been encompassed by the act under which this plaintiff sues.³

' By our votes for and against reversal of the circuit court’s judgment we are due to amend retroactively, or refuse to amend at all, two statutes rather than the one upon which plaintiff has planted her suit. Her cause allegedly arose in 1962, under a venerable statute as it stood that year (CLS 1961, § 242.1 [Stat Ann 1958 Rev § 9.591]). Since then, by PA 1964, No 170, effective July 1, 1965, the legislature has expressly repealed that statute and has superseded it with another the entitled design of which is “to make uniform the liability of municipal corporations, political subdivisions, and the State, its agencies and departments,” et cetera..

The inevitable impact of a decision to reverse the ■ circuit court’s judgment for the reasons now pro-' posed, especially upon sections 4 and 7 of the super-, seding statute, will be manifest to all who keep tab ■ on the headlong trend of recent opinions handed • down for cases wherein damages for personal injuries or death' are sought. In furtherance of that trend a dual holding — unannounced—is actually proposed; that the legislative assembly of 1964 as well as the assembly of 1915 did not mean what was writ-. ten into both statutes; that each assembly really meant to exempt claimants under legal disability, from the condition of giving the timely written notice which section 8 of chapter 22 of the repealed statute required and section 4 of the new statute now requires.

Assuming that the Court is going to proceed judicially, let it be noted that no one thus far (plain-, tiff’s counsel and Justice Souris included) has alleged that there are words or phrases, .or doubtful, meanings of words and phrases, in any one of the 8■ sections of the act under which plaintiff has sued,' which might he regarded as hinting that a person under legal disability is exempt from the aforesaid requirement of timely written notice. This time, for certain, the legislative message as written provides no peg of ambiguity for the beret of anyone who bleeds freely for plaintiffs in civil cases and defendants in criminal cases. So for the first time in our books the profession is about to find written, not an affirmative finding of legislative purpose drawn from dubious meaning of statutory words and phrases but rather a negative dixit of personal judicial belief, made up more than a half century after the fact, that the assembly of 1915 really “didn’t mean it”; also that such negative belief leaves the judicial branch free to write into the act affirmative words of exemption which the 1915 legislature chose not to insert or include. I for one will have no part in any such crude appropriation of legislative power, this being one sure instance where self-discipline as well as self-restraint is due judicial process.

True enough, the act as written was harsh and remained so in its application to claimants under legal disability while the 60-day period proceeded to its end. It may even be decried as “barbarous,” that being the currently supplied reason for judicial amendment of those statutes which claimants of damages for personal injuries and death sue under and yet would avoid as to the restrictive parts thereof. Accepting all that, it is nonetheless true that the judicial branch is bound to apply plainly written statutes as they read, no constitutional question having been raised below.⁴ And if by judicial edict that is no longer to be so, let tbe Court openly say-so, and why. ' •

All that is offered in support of this latest motion to arhend a statute by judicial procéss is the mentioned ' statement of personal belief, spiced only by decisions picked and chosen from some other jurisdictions. To all this, hard fact that it may be for a possibly hard case,⁵ the legislature has responded-in simple English:

“Sec. 5. No township, village or city in this state shall be liable in damages, or otherwise, to any person or persons-for bodily injury, or for injury to any property sustained upon any of the public highways, streets, bridges-, sidewalks, crosswalks or culverts, in such townships, villages or cities, except under and according to the provisions of this act, and the common law liability of townships, villages and cities of this State, for or on account of bodily injuries sustained by any person by reason of neglect to keep .in repair public highways, streets, bridges,.sidewalks, crosswalks or culverts, is hereby abrogated.” (CL'1948, § 242.5 (Stat Ann 1958 Rev § 9.595).

And said section 8 concludes:

■ “.The intent and purpose of the provisions of this: chapter are to make the law of liability on the [Dart 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. All actions in court under this act must be brought within 2 years from the time said injury was sustained.” CL 1948, § 242.8 (Stat Ann 1958 Rev § 9.598).

The emphasis is that of the present writer.

I No lawyer, conscious of and respeetful for the constitutional inhibition (Const 1963, art 3, §2) and the applicable rule of construction (found with copious citation in City of Lansing v. Township of Lansing, 356 Mich 641 at 648-650), could read this statute without concluding that it is the present duty of the Court, again as in the law case of Mercy Hospital v. Crippled Children’s Comm., 340 Mich 404 at 408, to apply it as it reads “without reference to equitable considerations.” As was written for the Court by then Associate Justice T. M. Kavanagh in the City of Lansing Case (at pp 649, 650):

“No intent may be imputed to the legislature in the enactment of a law other than such is supported by the face of the law itself. The courts may not speculate as to the probable intent of the legislature beyond the words employed in the act.”⁶

Surely, by this time, jurisprudential Michigan has seen enough of this business of research-travel beyond her borders to locate and cite court decisions which

(a) No one pretends appeared in the reports of a State from which Michigan subsequently took and enacted the statute in scrutiny, and

(b) No one claims have construed and applied enactments which at the time of decision corresponded precisely with such statute.

Arid nothing in the law and nothing thus far written into our hooks sustains the empirical notion that newcomer judges seated here may second-guess a legislative assembly which met and adjourned a half century ago after having decided to amend the statute as it stood before the assembly at the time (see CL 1915, § 4584 et seq., re-enacting CL 1897, § 3441 et seq.). In and with that assembly was vested, exclusively by the Constitution, the power to determine and enact into law the policy of Michigan as regards the right of action created by section 1 of chapter 22 of the act. In and with that assembly the Constitution vested, just as exclusively, the right to choose to exempt, or not exempt, persons under legal disability from the requirements of said section 8. The assembly chose not to so exempt for a special reason oft written into law. That reason was to guard the treasures of local units of government from the possibility, if not probability, of spurious claims against which no defense could be made for want of timely notice and opportunity of timely investigation. True, the assembly could have chosen the more liberal type of statute. But it did not, and it beseems no member of this Court to repudiate the choice thus made.

Now if this Court is to respect the constitutional position of the third branch vis-a-vis the legislative branch, if its members are to heed the rules we ourselves have set up for employment where statutes are involved, we must accord to the assembly of 1915 due knowledge that it had a right to enact— or refuse to enact — an exemption of the kind considered,* for example as shown in Nash v. Inhabitants of South Hadley, 145 Mass 105, 106 (13 NE 376, 377), and Hooge v. City of Milnor, 56 ND 285, 290 (217 NW 163, 164).⁷

In the Nash Case the statute .requiring notice, within 30 days after the injury “to. .the town claimed to be responsible therefor,” ended up with this proviso:

“hut if, from physical or mental incapacity, it' is impossible for the person injured to giye the notice within the time provided in said section, he may give the same within 10- days after-such-incapacity is removed, and in case of his death without having given the notice, and without having been, for 10 days at any time after the injury, of sufficient capacity to give the' notice, his executor or administrator may give such notice within 30 days after his appointment.”

In the Hooge Case the statute similarly^ required notice “within '30 days from the happening of"'such injury.” It then went on to provide:

“In- case it appears by the affidavit of a reputable physician which shall be-prima facie evidence of. the fact that the. person injured was, by.the injury complained of, rendered mentally .incapable of making such statement during the time herein provided, such statement may be' made within 30 days after such complainant becomes competent to make the same, but such affidavit may be controverted on the trial of an action > for such- damages, and in case of the death of the person injured prior to his becoming competent to make such statement, the same may be made within 30 days after his death, by any person having knowledge of the facts, and.the person making such statement shall set forth therein specifically the facts relating to such injury as aforesaid, of which he has personal knowledge, and shall positively verify such statement and shall verify the facts therein stated of which he has no personal knowledge, to the best of his knowledge, information and belief.”

Since we are debating an alleged “hard” case, let it be said that the “hard” fact here is that our legislature, in 1915 and again in 1964, decided not to exempt any claimant from the requirement of timely written notice. That leaves judicial legislation the only way — the unconstitutional way — by which plaintiff in this action may be “excused” from that which section 8 of the statute required as a condition of the coming into being, in her favor, of the right she has alleged under section 1 of the same statute.

CONCLUSION.

.First: We are not dealing with a common-law right. Neither are we dealing with any species of common-law action. If we were most certainly some of us, the writer included, would give due thought to our continuing tenet that the common law is exclusively in the hands of the judicial branch and, when not impeded or restricted by statute or constitutional provision, that it is due at least for partly prospective⁸ growth or adjustment, in and by the third branch, according to the facts as well as the hardships of cases that are brought before that branch for scrutiny. Here though the Court is called upon to appraise the pleading of a right of action which, if it exists at all, came into existence by the effect of a statute. That statute provided the right of action upon conditions imposed therein. The judicial branch has no right, except by the unconstitutional exercise of raw power, to amend it in favor of any person or class of persons. The statute as it stands bars this action, there being no allegation of performance of the condition said section 8 of chapter 22 imposes and no allegation of a constitutional question.

Second: It does not matter that some here “cannot attribute to the legislature an intent” to do what that body by its written word actually did. Such personal testimony has always been regarded as both inadmissible and weightless. And if testimony of that kind, no matter by whom given in derogation of the wording of a statute, is now to be made admissible generally, it should be barred in today’s instance as being matter within the better knowledge of all knowledgeable and now deceased persons, referring to the Michigan legislators of 1915. It is their view of need and purpose, not that of any member of this Court not “there” at the time, which is supposed to count when we are called upon to apply a venerable enactment (Husted v. Consumers Power Co., 376 Mich 41, 54). That body of legislators had before it this Court’s decision in the Davidson Case, a decision which by its succinct final paragraph stood forth as authorizing a statutory provision requiring timely written notice by or on behalf of all persons alleged as having rights under the act then to be amended. Too, that body presumably had before it, for acceptance or rejection, the kind of exemptive statute disclosed by the cited Massachusetts and North Dakota cases. It chose not to exempt. The choice thus made should be sustained as against this appeal for judicial insertion, in the 1915 amendment, of a retroactively effective “excuse.”

My vote to affirm is reiterated.

1 Repealed and superseded by PA 1964, No 170 (CL 1948, § 691-1401 et seq. [Stat Ann 1965 Cum Supp § 3.996(101) et seg.]).

3 Followed in Bankers Trust Co. of Detroit v. Tatti, 258 Mich 357, 359.

1 Revised June 2 only with regard for Justice Souris’ footnote added by him June 1.

2 For a description of the infantile poker game the Court insists on playing each opinion day, see Keenan v. County of Midland, 377 Mich at 66.

3 Here there is no obnoxious interpretation of the aet under which plaintiff has sued which, for any desired result, might be seized upon for overruling. There is just a minutely worded statute the sections of which have stood understood .by everyone since seven of us either were in grade school or not yet around to testify about the intention of the 1915 legislative assembly. More of this later, . ■-

4 It is true here, just as was noted by footnote in the Boike Case (Boike v. City of Flint), 374 Mich 462 at 464, that:

“The constitutionality of section 8, insofar as it applies to infants pr others under legal disability, has not as yet been put to test.”

5 This may or may not be a “hard” case. It is here on grant of summary motion. Plaintiff did not establish under Rule 116 any of the facts crucial to her eomplaint. In a word, the defendant, municipality has not as yet been convicted of having been negligent, or of having .seen “to it that [its] negligence [was] sufficiently gross tb insure the complete physical and mental disability of the vietim.”’ (The quoted bombast appears in the submitted opinion for reversal,, post at p 101.) ■ '

6 At p 650 Justice T. M. Kavanagh wrote further that “An argument that a statute as construed may, in certain instances, work ■ great hardship is one that should be addressed to the legislature rather than the court,”

7 These eases are not offered as citations supporting the views expressed by the writer. No outside ease means anything, our statute and the Davidson Case (Davidson v. City of Muskegon, 111 Mich 454). considered. The two cases are mentioned solely for the purpose of exhibiting the kind of exemption Michigan has not enacted;' the" kind of exemption other legislatures had enacted 'and. placed in effect." prior to 1915; the kind the Brethren standing for reversal might properly write if, in addition to judicial power, they were possessed of legislative authority. ' ' ...

8 The expression “partly prospective” is studiously advertent. See T. M. Kavanagh, J., writing for the Court in Parker v. Port Huron Hospital, 361 Mich 1 at 26-28, and O’Haka, J., writing for himself and T. M. Kavanagh, C. J., .in Myers v. Genesee County Auditor, 375 Mich 1 at 11.