Opinion
Docket No. 6,250.
Decided May 29, 1969.
Appeal from Ingham, Sam Street Hughes, J. Submitted Division 2 May 6, 1969, at Lansing. (Docket No. 6,250.) Decided May 29, 1969.
Complaint by Stanley Lenneman against the city of Lansing, a municipal corporation, for personal injuries allegedly inflicted by defendant's employees. Accelerated judgment for defendant. Plaintiff appeals. Affirmed.
Foster, Campbell, Lindemer McGurrin ( Webb A. Smith, of counsel), for plaintiff.
George H. Denfield, for defendant.
BEFORE: LESINSKI, C.J., and QUINN and DANHOF, JJ.
Plaintiff alleged that on November 22, 1963, as he was picking up wood at the side of Park Avenue in the city of Lansing a hydraulic stabilizing jack on one of defendant's trucks was lowered onto his left foot by the negligence of defendant's employees. Said employees were engaged in a tree-cutting and trimming operation, and had volunteered to assist plaintiff in loading the logs onto his truck. They were not charging or receiving pecuniary profit.
Chapter 8.9 of the charter of the city of Lansing required a person intending to hold the city liable for damages for alleged negligence of the city's officers or employees to give written notice to the city clerk within 60 days after the injury occurred. It was admitted that no notice was given by or on plaintiff's behalf.
The trial court granted defendant's motion for an accelerated judgment.
In Northrup v. City of Jackson (1935), 273 Mich. 20, defendant-home rule city's charter provided that all claims must be presented to the city commission within 6 months after the cause of action arose. Plaintiffs sued for money damages resulting from city sewage polluting the stream on their farm, but they had not filed a claim therefor with the city commission before commencing the suit. The Supreme Court said:
"A charter provision for presentment of a claim to a municipality as a prerequisite to action against it is in harmony with the long-established policy of our State, as is indicated by similar provisions in old time special statutory charters, in the general village act, 1 Comp. Laws 1929, § 1534, the fourth class cities act, 1 Comp. Laws 1929, § 1921, and the highway law, 1 Comp. Laws 1929, § 4230. Its purpose is to give notice to the whole of the governing body of the municipality and afford all the members an opportunity to investigate and determine to allow, settle or prepare defense to claims. * * * We think the charter should be given force according to its language and purpose and exceptions permitted only upon sound distinctions."
The Supreme Court distinguished the case of Borski v. City of Wakefield (1927), 239 Mich. 656, where the fact that no notice was filed did not bar recovery, as follows:
"In the Borski Case the city was not performing a public function, governmental or proprietary, but was conducting a private business enterprise, operating a passenger bus for profit. In so doing, it was held to the same status as a private person. When population reaches a certain density, sewage systems become necessities. They are public in character and the question of their being governmental or proprietary is largely a matter of legal acrobatics. They have not the transitory character of a private business enterprise, nor afford like reason for exemption. Moreover, the confinement of the provision to strictly governmental functions, out of which few claims arise, would seriously impair the purpose of the charter provision. The exception in the Borski Case is logical and language in the opinion should be confined to the character of the enterprise involved."
However, the Supreme Court did hold the 6 months limitation in conflict with the statute of limitations. The Court said ( 273 Mich. 24, 25):
"The requirement for presentation of claims within six months after the cause of action arises is one of limitations Van Auken v. City of Adrian, 135 Mich. 534; Davidson v. City of Muskegon, 111 Mich. 454. Such limitations have been sustained when provided by statute. But a home rule charter may not conflict with nor contravene provisions of any general law of the State. 1 Comp. Laws 1929, § 2272. The six-months period, therefore, contravenes the general statute of limitations (3 Comp. Laws 1929, § 13976) and, in this respect, the provision must be held void.
* * *
"The charter provision for presentation of claim as a condition of commencement of suit is not expressly authorized in the home rule act, but it is in accord with the long-established public policy of the State and is not prohibited by other law. The six-months limitation clause may be stricken without effect upon the remainder of the provision. The charter requirement, therefore, must stand with the limitation deleted."
On authority of the Northrup Case, supra, and Doyle v. Kammeraad (1945), 310 Mich. 233, this Court holds that the 60-day limitation in chapter 8.9 of defendant city's charter is in conflict with the statute of limitations and must be held void, but that the requirement of notice is valid; and it being admitted by plaintiff that no notice was ever given defendant, the trial court's granting of defendant's motion for accelerated judgment was proper.
Affirmed as to result. No costs to either party, construction of a state statute being involved.
All concurred.