Ross v. Fisher ( 1958 )

Edwards, J.

(dissenting). A Michigan' statute grants an exception from the statute of limitations where a cause of action is fraudulently concealed. (CLS 1956, § 609.20 [Stat Ann 1957 Cum Supp § 27.612].) The question posed by this case is whether or not the term “cause of action” in this statute should be construed to include the identity of the defendants where such is alleged to have been concealed by their affirmative acts.

The writer feels that this Court’s first answer to this question in International Union United Automobile Workers of America, A.F.L., v. Wood, 337 Mich 8, was in error for the reasons set forth by Mr. Justice Adams in his dissenting opinion therein. Justice Adams wrote (pp 15, 16):

“The term ‘cause of action’ means more than a known injury or a violation of a right. It must also include the identity of the person who is responsible for the injury or the violation. Damage or injury cannot constitute a cause of action except as it results from the wrongful or illegal act of another. A cause of action would be an utterly useless thing if there were no party against whom a remedy could be sought. * * *

“A party defendant being an essential component of a cause of action, it follows that the concealment of the existence or identity of such person is a concealment of the cause of action itself.”

The statute, as the Court was then construing it, made no specific reference to the concealment of the identity of any party.

"Writing before the decision in the Wood Case, and commenting on the admittedly difficult problem posed by this type of statute, Dawson said:

“The point at which legitimate tactics of obstruction become ‘fraudulent concealment’ is of course very difficult to define. Eor example, where the existence of a cause of action is known to the plaintiff,! but the identity of the person liable is deliberately' concealed, it is possible to argue that the ‘cause’ of action is not concealed within the meaning of that exception. The assumptions behind this purely conceptual approach are by no means absurd. ' And when the question appears as a problem in the limitation of actions, it can certainly be said that discovery of the injury creates a ‘duty’ to discover who inflicted the injury. ’But fortunately only one court has yet decided that the identity of the wrongdoer is not an element of a cause of action for the purpose of the . ‘fraudulent concealment’ exception. And there is abundant authority for the proposition that direct misrepresentation or other active steps to conceal the identity of the wrongdoer do justify delay and suspend the statute.” Dawson, Fraudulent Concealment and Statutes of Limitation, 31 Mich L Rev (May, 1933), pp 873, 913, 914.

See, also, Brookshire v. Burkhart, 141 Okla 1 (283 P 571, 67 ALR 1059); Kurry v. Frost, 204 Ark 386 (162 SW2d 48); Noel v. Teffeau, 116 NJ Eq 446 (174 A 145); Lightfoot v. Davis, 198 NY 261 (91 NE 582, 29 LRA NS 119, 139 Am St Rep 817); Dodds v. McColgan, 229 App Div 273 (241 NYS 584); Texas & Pacific R. Co. v. Gay, 88 Tex 111 (30 SW 543).

Immediately after this Court’s adoption of the disputed rule in the Wood Case, the next session of the legislature adopted an amendment to the fraudulent concealment statute.

By PA 1954, No 49, the words “or conceal the identity of any party thereto” were added following the term “cause of such action” in the first sentence of the statute. I agree with Mr. Justice Voelker that the draftsmanship of this amendment left much to be desired. But a plainer statement of legislative intent, it would be difficult to find.

The writer views the 1954 amendment as a legislative declaration that this Court in the Wood Case, supra, misinterpreted the meaning and purpose of its enactment. This Court should adopt Justice Adams’ construction of this statute, thereby overruling its interpretation of this statute in Wood, supra, and Vega v. Briggs Manfg. Co., 341 Mich 218. The instant cause of action should be reversed and remanded for trial in accordance with this opinion.

Kavanagh, J., took no part in the decision of this case.