Bejger v. Zawadzki

Plaintiff had, and has, a common-law right of action. After suit, and before judgment, the statute was repealed, yet, notwithstanding, plaintiff was given the benefit of it and relieved from showing that the dog was vicious, to defendant's knowledge, and had damages doubled.

My Brother disposes of the question of double damages, and my disagreement is confined to the effect of the repeal upon the rule by which the case should have been tried.

The repeal was without a saving clause. The repealed act did not supersede common-law right of action, but did eliminate proof essential to have recovery at common law.Wojewoda v. Rybarczyk, 246 Mich. 641, and cases there cited. The declaration alleged that the dog was vicious and defendant knew it, and was sufficient to authorize recovery at common law upon proof of such facts. After repeal of the statute, dispensing with certain proof, such proof was again necessary to recovery. A remedy or rule of evidence, created by the legislature in derogation of the common law, creates no vested right to that remedy and can be taken away by repeal.

We are not here concerned with contract rights or remedies.

In Lewis' Sutherland Statutory Construction (2d Ed.), § 282, it is stated:

"The general rule is that when an act of the legislature is repealed without a saving clause, it is considered, except as to transactions past and closed, as though it had never existed."

And section 283:

"Rights dependent on a statute and still inchoate, not perfected by final judgment or reduced to possession, are lost by repeal or expiration of the statute."

In 25 R. C. L. p. 939, it is stated:

"A repealing statute, so far as it provides for a change in procedure, applies to actions pending. No one can claim to have a vested right in any particular mode of procedure for an enforcement or defense of his rights."

In South Carolina v. Gaillard, 101 U.S. 433, it was held:

"It is well settled that if a statute giving a special remedy is repealed without a saving clause in favor of pending suits, all suits must stop where the repeal finds them. If final relief has not been granted before the repeal went into effect, it cannot be after."

In 26 Am. Eng. Enc. Law (2d Ed.), p. 758, the rule applicable here is stated:

"While rights of action which are expressly given by statute and do not exist outside thereof, are necessarily destroyed by a repeal, rights or causes of action which accrue to a party and indirectly depend on the statute, but which can be enforced independently thereof, are not necessarily destroyed by its repeal. Under such circumstances the right to recover is basedon the common law, not on the statute." (Italics are mine.)

The judgment should be reversed, and a new trial granted, with costs to defendant.

BUTZEL, CLARK, POTTER, and NORTH, JJ., concurred with WIEST, C.J.