Morgan v. McDermott

382 Mich. 333 (1969) 169 N.W.2d 897

MORGAN
v.
McDERMOTT.

Calendar No. 2, Docket No. 51,958.

Supreme Court of Michigan.

Decided September 3, 1969.

Hartman, Beier, Howlett & McConnell, for third-party plaintiff.

Patterson & Patterson, Barrett, Whitfield, Manikoff and White (Robert G. Waddell, of counsel), for third-party defendant.

ADAMS, J.

1. THE FACTS AND PROCEEDINGS.

Plaintiff filed a complaint as administrator of the estate of Sharon Rose Morgan, deceased, who was killed on January 29, 1964, at the age of 12, while a passenger in an automobile owned and driven by Eva L. Balmer. The Balmer car collided with an automobile owned by defendant Andrew J. McDermott, Jr., and driven by defendant James Alan Coak.

On April 20, 1965, defendants moved to join the board of county road commissioners of Oakland county as a third-party defendant. The third-party complaint alleged that the county road on which the accident happened was unsafe; that third-party defendant had knowledge of that fact but failed to take corrective action; and that its failure to do so contributed to cause the accident. Defendants, as third-party plaintiffs, sought judgment against third-party defendant for contribution of one half of any judgment against them. Defendants based their demand on the statute and court rule which permit one tort-feasor to add another tort-feasor as a third-party defendant in order to obtain contribution. CLS 1961, § 600.2925(1) (Stat Ann 1962 Rev § 27A.2925[1]); GCR 1963, 204.1.

On May 24, 1965, third-party defendant filed a motion for accelerated judgment alleging that the first notice to it of any claim of defective highways and of the accident was the statements contained in the third-party complaint and that, as a consequence, the claim was barred because of failure to give notice pursuant to the requirements of CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121). The trial court granted the motion and dismissed the third-party complaint.

The Court of Appeals reversed and disposed of the case by holding that section 224.21 containing the 60-day notice requirement does not apply to an action for contribution between joint tort-feasors arising out of a wrongful death claim. (1967), 8 Mich. App. 260, 263, 265.

2. RIGHT OF CONTRIBUTION AS BETWEEN JOINT TORT-FEASORS.

Prior to the effective date of the revised judicature act (January 1, 1963), the only remedy available to one joint tort-feasor against another was by chancery action for contribution (CL 1948, § 691.564 [Stat Ann 1959 Cum Supp § 27.1683(4)]) taken in pursuance of PA 1941, No 303, being CL 1948, § 691.561 et seq. (Stat Ann 1959 Cum Supp § 27.1683[1] et seq.). See Husted v. Consumers Power Company (1965), 376 Mich. 41, 47. CL 1948, § 691.561, supra, since repealed by RJA, read as follows:

"Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment: Provided, however, That no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment."

In Husted, this further statement appears (p 47):

"The act of 1941 was changed in minor degree (to accommodate the new procedure only and not to change the substance) and reenacted as section 2925 of the revised judicature act of 1961 (CLS 1961, § 600.2925 [Stat Ann 1962 Rev § 27A.2925])."

Section 2925 of RJA is as follows:

"(1) Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share is entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment. Joint tort-feasors who are summoned in as third-party defendants pursuant to court rule may likewise be liable for contribution. No person may be compelled to pay to any other defendant an amount greater than his pro rata share of the entire judgment."

GCR 1963, 204.1(1) provides:

"Subject to the provisions of section 3030 of the insurance code of 1956, before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may thereafter be liable to such third-party plaintiff, by right of contribution or otherwise, for all or part of the plaintiff's claim against him."

The committee comment which follows Rule 204 states:

"The language of this rule differs from the Federal counterpart in another respect. The purpose of the change is to overcome the decision in Buckner v. Foster [ED Mich, 1952], 105 F Supp 279, in which the Michigan contribution among joint tort-feasors act was construed in light of the Federal Rule 14. It was there held that the right of contribution given a joint tort-feasor arises under the Michigan statute only after a several judgment against the defendant in excess of his pro rata share of liability, and thus impleader of the joint tort-feasor was denied. Such a result is not sound. Rule 204 will allow Michigan courts to avoid the decision of the Buckner Case, since impleader is authorized whenever a person not a party ``may thereafter be liable to such third-party plaintiff by right of contribution or otherwise.' This should include also the substantive right of contribution given a joint tort-feasor in libel cases by CL 1948, § 691.571 (Stat Ann § 27.1401)."^[1]

In Husted, supra, Rule 204 was declared not to create substantive rights. (p 47.) The substantive basis for defendant's claim against the third-party defendant must be found elsewhere before the rule becomes operative. (p 47.) The substantive rights and liabilities of parties to an action are determinable according to the law as it stood when the causes alleged by the plaintiff accrued. (p 47.)

The third-party practice introduced to Michigan by the revised judicature act of 1961 and Rule 204 has no bearing on the decisional outcome of this case. The present statute (CLS 1961, § 600.2925 [Stat Ann 1962 Rev § 27A.2925]) governing contribution between joint tort-feasors still requires that a money judgment first be recovered before the right to contribution comes into existence. It makes no attempt to define a joint tort-feasor or what constitutes tortious conduct or who may or may not be liable for the commission of a tortious act. All that Rule 204 does is to permit adjudication of liability — such liability as may be found to exist elsewhere in the law — in one trial if the trial judge so orders. Consequently, in this case, if the third-party plaintiffs are to obtain contribution from the third-party defendant, they must look beyond the provisions of the RJA and the GCR as to contribution and establish a substantive basis for their cause of action by other means.

3. LIABILITY OF COUNTIES FOR DEFECTIVE ROADS.

In 1893, the legislature, by Joint Resolution No 11, proposed an amendment to the State Constitution (1850) to be known as section 49 of article 4. PA 1893, p 433. The amendment authorized the legislature to enact laws for the laying out, construction, and maintenance of county and township roads on the condition that any act passed by the legislature for this purpose shall provide for a county and township system and the county system shall become operative only in such counties as shall adopt it by a majority vote of the electors. The proposed amendment was ratified by the people at the April election of 1893. PA 1893, p 451.

Subsequently, the legislature proposed a system of county and township roads by the passage of PA 1893, No 149, effective May 26, 1893. Section 21 of the act (CL 1897, § 4282) in part provided:

"The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system." (Emphasis added.)

It was in this fashion that the statutory liability of a county that elected to adopt a county road system was created.

To determine that liability, it is necessary to examine the liability of townships, cities, villages, and corporations for damages for injuries resulting from a failure of performance of the duties respecting roads under their control. In 1893, this was prescribed by PA 1887, No 264, set forth as chapter 91, CL 1897, being sections 3441 through 3445. Liability of townships, villages, or cities for damages for bodily injury or injury to property sustained upon any of the public highways, streets, bridges, et cetera, could only be established in accordance with the provisions of the act. By section 5 of the 1887 act, common-law liability was abrogated (CL 1897, § 3445). Chapter 91 of CL 1897 became chapter 22 of the general highway law. See CL 1948, § 242.5 (Stat Ann 1958 Rev § 9.595).

In addition to the above statutory provisions as to liability, in Roberts v. City of Detroit (1894), 102 Mich. 64, the Court said (p 66):

"Municipal corporations, in Michigan, are liable for injuries resulting from their neglect to repair public highways only where made so by statute. That there is no common-law liability was decided in the case of City of Detroit v. Blackeby (1870), 21 Mich. 84, which was a crosswalk case. It was followed by McCutcheon v. Village of Homer (1880), 43 Mich. 483. The earlier case contains an exhaustive discussion of the subject, holding that the duty of cities to repair highways is a public one, and that a private action does not lie for negligence in such cases. Subsequently a statutory liability was created, and it is under this statute that the plaintiff must recover, if at all." (Emphasis added.)

In Rufner v. City of Traverse City (1941), 296 Mich. 204, it was said (p 209):

"The reason that a city was not liable at common law for injuries caused by defective highways was because the duty to repair was a public one, and thus, since the city in the management and control of its highways was acting in a governmental capacity, it was immune from liability. City of Detroit v. Blackeby (1870), 21 Mich. 84 (4 Am Rep 450); Roberts v. City of Detroit (1894), 102 Mich. 64 (27 LRA 572). In effect the above statute [CL 1929, § 4225, CL 1948, § 242.3] removes the exemption from liability and declares that the city must keep its highways reasonably safe for travel."

In Cabana v. City of Hart (1950), 327 Mich. 287, this language appeared at page 300:

"We are here concerned primarily with the interpretation of the provisions of the general highway law, above quoted, which, as pointed out in the Rufner Case, modified to the extent there indicated the doctrine of governmental immunity on the part of municipal corporations of the State."

Liability of a county for damages was continued in the general highway law in section 21 of chapter 4 (CL 1948, § 224.21 [Stat Ann § 9.121]) by the words:

"The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system."

These are the identical words which appeared in the initial act and which have been previously quoted in this opinion. See PA 1893, No 149, § 21. They have been preserved in the last amendment to section 224.21. See PA 1954, No 12 (CLS 1961, § 224.21 [Stat Ann 1969 Cum Supp § 9.121]). This language has appeared in section 21 throughout its legislative history.

Proceeding according to the language quoted from section 224.21 above, to ascertain what is the basis of liability for damages by townships, cities, villages, and corporations, resort must be had to chapter 22 of the general highway law, designated "Recovery of Damages," appearing at CL 1948, § 242.1 et seq. In 1915, by PA 1915, No 301, three new sections were added to this chapter to stand as sections 6, 7, and 8. They appear without change as CL 1948, §§ 242.6, 242.7, and 242.8 (Stat Ann 1958 Rev §§ 9.596, 9.597, 9.598). These three sections relate to notice of defective conditions and claim for injury or damage. The county is not named in any of the three sections — sections 6 and 7 referring to "township, village or city" and section 8 referring to "city or incorporated village."^[2]

Section 8 contained the following language:

"The intent and purpose of the provisions of this chapter are to make the law of liability on the part 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."

The requirements in section 8 for written notice were:

"In the event damages are sustained by any person, either by bodily injuries or to his property, because of the defective condition of any highway, street, bridge, sidewalk, crosswalk or culvert in any city or incorporated village of this state where written notice of such injury and defect is now required by law to be served upon such village or city before recovery can be had, it will be necessary to show that such person did serve written notice upon said city or village within 60 days from the time of the happening of such injury."

Manner of service and contents of the notice were spelled out.

In the same year (1915), the legislature also amended section 21 of chapter 4 (CL 1948, § 224.21) of the general highway law, dealing with county roads, but the amendment related to completion of roads under construction and no 60-day notice requirement of injuries or damages was imposed on behalf of the county as had been done on behalf of cities and incorporated villages by foregoing section 8. See PA 1915, No 75.

In 1919, section 8 was held by this Court not to apply to townships. McIntyre v. Township of Grant (1919), 206 Mich. 223, 227. In that year the legislature clarified the notice requirement to counties by passage of PA 1919, No 388, requiring service of a written notice within 60 days after injury where the county road system was involved. See CL 1948, § 224.21.^[3]

4. THE SCOPE OF THE 60-DAY NOTICE REQUIREMENT.

In construing liability of boards of county road commissioners under section 224.21, consideration must be given to the 1951 amendment to section 1 of chapter 22 by PA 1951, No 19, which added the words "and to any person suffering damages by reason of such injury." (Emphasis added.)^[4] What is the scope of this amendment? Judge Noel Fox held that it did not apply in an action for wrongful death in Kraus v. Board of County Road Commissioners (WD Mich, 1964), 236 F Supp 677. The Michigan Court of Appeals followed his reasoning. 8 Mich. App. 260, 264. The use of the words "any person" appears inappropriate to such a conclusion. In Kraus, in an unreported opinion, Judge Fox later reconsidered his first holding and dismissed the action for lack of the statutorily required notice. He was upheld by the United States court of appeals, Kraus v. Board of County Road Commissioners (CA 6, 1967), 385 F2d 864.

In Kraus, the action was brought by a special administratrix, the widow of a man who had been injured on a highway and who died from such injuries. She sued the boards of county road commissioners of two counties alleging negligence in failing to keep the roads in a condition reasonably safe and convenient for public travel. The widow's suit was brought pursuant to the provisions of the wrongful death statute. If her husband had survived the accident and had brought an action against the counties for damages because of his injuries, he would have been required to give the 60-day notice. Since the widow did not give notice until suit was filed almost two years after the accident and since she was held not to be relieved of the requirements of the statute, she was out of court.^[5]

In this case, defendants stand as third-party plaintiffs in asserting their rights against the third-party defendant. They make no claim against Oakland county because of bodily injuries suffered by them. Their action is for contribution from an alleged joint tort-feasor. There has been no trial on the merits — no adjudication that defendant and third-party defendant are joint tort-feasors. The liability of the third-party defendant has yet to be established.

We have seen that the procedural rule permitting impleader creates no substantive rights of contribution. Due to its governmental immunity, the liability of a county is purely statutory. Common-law liability, if any, was abrogated both by statute and by decision of this Court. The only statute that sets forth any liability of a county relating to the construction or maintenance of county roads is CLS 1961, § 224.21 (Stat Ann 1958 Rev § 9.121). In this case, we need not determine whether section 224.21 will permit an action for contribution or is limited to actions to recover for personal injuries and property damage.

The notice requirement as it appeared in chapter 22 of the general highway law subsequent to enactment of the 1915 act adding sections 6, 7, and 8 (CL 1948, §§ 242.1-242.8 [Stat Ann 1958 Rev §§ 9.591-9.598]) was held by this Court to be mandatory and applicable to claims against cities for injuries allegedly caused by defective conditions of a sidewalk or highway. Sykes v. City of Battle Creek (1939), 288 Mich. 660, involved a suit for damages for personal injuries sustained when stepping off a curb. No notice of claim of injury was served on the city. It was argued that the city charter requirement of notice within 60 days from date of injury conflicted with the general statute of limitations in force at the time the charter was adopted and consequently the requirement was void. The argument was rejected, the Court saying (p 663):

"The intent of the statute [citing section 8, supra] was to make uniform both the procedure for giving notice and the liability of cities throughout the State for highway defects. To that end all inconsistent ``general, local or special' acts were expressly repealed, and the notice requirement of 60 days from the happening of the injury expressly approved. The Battle Creek charter fully complied with the statute."

The action in Boike v. City of Flint (1965), 374 Mich. 462, was for damages resulting from a fall on an icy sidewalk. It was argued that sections 1, 5, 7, and 8 of chapter 22, supra (CL 1948, § 242.1 et seq. [Stat Ann 1958 Rev § 9.591 et seq.]) created a right of action for "bodily injury" based upon negligence but not upon nuisance and consequently the 60-day written notice requirement applies solely to actions based upon negligence and does not apply to actions based upon nuisance. In a per curiam opinion, the Court said (pp 463, 464):

"We are not disposed to enter upon a discussion of the distinctions between a right of action based on negligence and a right of action based on nuisance. * * * It is ruled simply that the requirement of statutory notice applies to any and all actions for ``bodily injury' sustained by reason of neglect to keep streets of a city, or ways of a city under city control, in reasonable repair and in condition reasonably safe and fit for public travel, and that the statute makes for its purposes no distinction between the various theories of recovery that are open to a person claiming damages for such ``bodily injury.'

"The provisions of section 8 are plain. They are lay understandable as well as professionally understood, and are mandatory. Since plaintiff lost his cause for ``bodily injury' under the statute, by reason of failure to comply on time with said section 8, he is now possessed of no right of action — against the defendant city — on account of the conditions which caused the injury and consequences he has pleaded."

A fall on a sidewalk was the basis for complaint in Trbovich v. City of Detroit (1966), 378 Mich. 79. Notice was not given the city within the time limitation of the statute and such failure was sought to be excused on the ground plaintiff became mentally and physically incapacitated as a result of her injury. Dismissal of the action by the trial court was affirmed, six Justices predicating their decision on the proposition that the right of action, being statutory, must fail if shown to be lacking in any of the statutory elements. Notice was an essential element.

In Kowalczyk v. Bailey (1967), 379 Mich. 568, plaintiff was denied relief by summary judgment against her on a cause of action against the city for injuries due to failure to remove an illegally parked automobile as an obstruction in the street after the city had notice of its presence because of plaintiff's noncompliance with the statutory requirement of written notice to the city within 60 days.

In view of the foregoing so-called city cases, it follows that the statutory 60-day notice is applicable to any action that may be maintained against boards of county road commissioners under the statute.^[6] Whether or not an action against the board of county road commissioners for contribution as a joint tort-feasor because of an automobile accident on a county road qualifies as one for bodily injury or property damages within the meaning of CLS 1961, § 224.21, is immaterial to a decision in this case.

Third-party plaintiffs are in this dilemma: either governmental immunity has not been waived as to an action for contribution such as they assert, or, if reliance is placed on the statute, third-party plaintiffs cannot insist on its benefits because the statutory 60-day notice was not given.^[7]

The Court of Appeals is reversed. Trial court is affirmed. Costs to third-party defendant.

ADDENDUM.

Justice BLACK has assumed a "common liability" between third-party plaintiffs and third-party defendant arose at the time the accident happened. In the ordinary case of joint tort-feasor, such an assumption would be entirely warranted. I do not believe it can be made here due to the fact that the board of county road commissioners' tortious act, standing alone, by virtue of the provisions of section 224.21, does not result in liability to anyone unless the 60-day notice requirement is met. In the usual joint tort-feasor case, we do not have to reckon with the doctrine of governmental immunity. We do here.

As pointed out in the body of this opinion, in Michigan, prior to the statute, the construction and maintenance of public roads was for the benefit of the traveling public and no rights as to the condition of the highway existed in the individual user. Consequently, there was no duty of road maintenance owing to an individual which would support an action at the common law in the event of a breach.

A county had governmental immunity and could not be liable for its torts, absent statutory authority. It follows that it cannot be liable as a joint tort-feasor except in so far as the shield of immunity has been statutorily removed and a liability created. The condition of liability is compliance with the 60-day notice requirement. Until it has been fulfilled, there is no liability. The county's immunity cannot be lost simply on the basis of its having been a joint tort-feasor rather than its having been the sole tort-feasor. The public policy behind the 60-day notice requirement is even more compelling in the case of a claim of joint tort-feasance than when the county only is the alleged tort-feasor.

To follow the reasoning of Justice BLACK, a county is immune from liability in the case of its being the sole tort-feasor unless the 60-day notice is given, and yet the county may become liable in contribution years afterward where the claim is of a joint tort without such notice, without being impleaded, and without the opportunity speedily to investigate the claimed tortious conduct.

In Hack Investment Co. v. Concrete Wall Company (1959), 356 Mich. 416, plaintiff sued to obtain contribution from defendant. A judgment had been rendered against both of them and was paid by the plaintiff. This Court held that plaintiff's suit for contribution was properly dismissed because of a statutory requirement that the action must be brought in chancery within 6 months after discharge of the judgment. The suit was not begun within the required statutory period. Justice CARR, writing for a unanimous Court, said (pp 421, 424):

"Prior to the enactment of the statute above cited the rule was well settled that there was no right of contribution or indemnity as between joint tort-feasors guilty of actionable negligence, or in pari delicto. In exceptional cases, in which technical wrongdoing was distinguished from actual negligent conduct, recovery was permitted by a defendant, forced to make payment of the judgment, from a party responsible for the injury and damage resulting in judgment. * * *

"The legislative action was basically in derogation of the common law only as it abrogated the rule that as between tort-feasors generally there was no right of contribution. The statute clearly covers the class of cases formerly recognized as possible exceptions to the general rule, and the intent is manifest from its language that a uniform method of procedure shall be observed.

"Unquestionably one asserting a statutory right of action in derogation of the common law must establish that he is within the terms of such statute. This Court in Yount v. National Bank of Jackson (1950), 327 Mich. 342, 347 (17 ALR2d 685), quoted with approval from Hamilton v. Jones (1890), 125 Ind 176, 178 (25 N.E. 192), as follows:

"``"Statutes in derogation of the common law are to be strictly construed, and one who seeks to maintain an action which was within the prohibition of the common law must be able to point to a statute which in plain and explicit terms authorizes the action to be maintained. A plaintiff who sues on a right of action given by statute must present a case clearly within the statute which creates the right."'"

To reiterate, the common-law liability of a county in this case, if it ever existed, has been abrogated both by statute and by decisions of this Court. Only a statutory liability remains. The terms of the statute must be met.

In the case of White v. Johnson (1965), 272 Minn 363 (137 NW2d 674), cited by the Court of Appeals, a truck collided head on with an automobile which veered from its lane of travel and collided with another automobile. The occupants of the automobile sued the truck driver and he filed complaints against the city of St. Paul on the basis that the city had negligently maintained the highway. The supreme court of Minnesota held that the truck driver could preserve a derivative claim against the city for either contribution or indemnity by his own adequate notice of claim against the city, despite absence of claim against the city by the occupants of the automobiles. In disposing of the city motion for summary judgment, the Court said (pp 366, 367):

"Although there are decisions in other States holding that actions for contribution or indemnity may be maintained against a municipality despite noncompliance with statutory provisions requiring prior notice or presentation of claims against a municipality,[2] we have held that the failure to give timely notice as required by our notice of claim statute, Minn St 1961, § 465.09, precluded an action for indemnity against a municipality. American Automobile Insurance Company v. City of Minneapolis (1961), 259 Minn 294 (107 NW2d 320). In that case the insurance company made a settlement of an action against its insured property owner for damages sustained by a person injured in a fall at a point where a private ramp met a defective city sidewalk. The injured party did not give notice of a claim against the city and neither did the property owner or its insurance company until after the settlement was made, some 3 years after the injury occurred. We held that the action involved a claim for injury based on negligence, not contract, and that the failure to give notice within 30 days of injury as required by section 465.09 ``prevented any liability on the part of the city from existing.' 259 Minn 298 (107 NW2d 323). This result was necessarily based upon our conclusion that the wording of the statute applicable to this case is broad and inclusive and that notice is a prerequisite to maintaining an action for indemnity or contribution against a municipality even though such a claim is contingent at the time notice is required to be served. The opinion left open the question, however, whether the action could have been maintained had timely notice been given."^[8]

"[2] Valstrey Service Corporation v. Board of Elections (1957), 2 N.Y.2d 413 (161 NYS2d 52, 141 NE2d 565); Minneapolis, St. Paul and Sault Sainte Marie R. Company v. City of Fond du Lac (CA7, 1961), 297 F2d 583 (93 ALR2d 1378)." (Minnesota footnote.)

The 60-day notice requirement is a condition "to any liability * * * for damages sustained by any person * * * either to his person or property, by reason of any defective county road, bridge or culdvert." (CLS 1961, § 224.21 [Stat Ann 1958 Rev § 9.121].)

T.E. BRENNAN, C.J., and KELLY and T.M. KAVANAGH, JJ., concurred with ADAMS, J.

BLACK, J. (dissenting).

All requisite facts appear in Justice ADAMS' opinion for reversal and will not be repeated here. This being a simple issue of right of the primary defendants to have their duly served and legally sufficient third-party complaint for contribution proceed to judgment or judgments as in Rule 204 (GCR 1963) provided, rather than a far-afield inquiry into the statutory liability to "any person" (under CLS 1961, § 224.21 [Stat Ann 1958 Rev § 9.121])^[1] of a county road commission, I stand for affirmance and therefore dissent.

That there be no misunderstanding of the ensuing opinion, note is made that this appeal has arrived upon taken-as-true pleadings only, that the status of the primary defendants and the third-party defendant — as alleged joint tort-feasors — has not as yet been tried to finding or verdict and judgment, and that the time for determining whether the primary defendants are possessed of an accrued (distinguished from inchoate) right of contribution against the third-party defendant has not as yet arrived. That right will arise, if at all, when the primary defendants and the third-party defendant have been adjudged joint tort-feasors and the primary defendants have satisfied any judgment which upon the trial has been entered in favor of the plaintiff.

The liability of a county road commission, guilty (when and if proved) of being one of two joint tort-feasors, its negligence consisting of failure to perform the duty charged upon it by section 224.21, may be outlined properly as follows:

(a) The commission may under section 224.21 be held liable to the plaintiff for the whole of the latter's loss, provided such plaintiff gives timely notice under said section 224.21, or

(b) The commission may, under CLS 1961, § 600.2925 and correlative Rule 204 (GCR 1963), be held liable to the other tort-feasor for contribution of its share of the amount such other tort-feasor as primary defendant has been held responsible to pay, and has paid, to the plaintiff person, or

(c) The primary defendant may, by separate action now that section 600.2925 has removed fully the former bar against contribution (initiated in Michigan by Norris v. Hill [1849], 1 Mich. 202, 212), hold the commission liable to him for the commission's share of the amount such primary defendant has been held responsible to pay, and has paid, to the plaintiff. In such instance the primary defendant, omitting (should he choose) motion for leave under Rule 204.1, may await the outcome of the plaintiff's suit against him and then, should he be held responsible for the plaintiff's damages and should he satisfy the same, he as possessor of a matured right to contribution may sue the commission for recovery thereof. As to this paragraph (c) see Sattelberger v. Telep (1954), 14 NJ 353 (102 A2d 577) and quotation thereof, post; also the first sentence of the Court-approved "committee comment" which was appended below section 2925 of the revised judicature act (MCLA § 600.2925, p 738, Stat Ann 1962 Rev § 27A.2925, p 171). That sentence appears in the margin.^[2]

The foregoing strips our inquiry to desirable simplicity. It is whether failure or omission of the notice required by CLS 1961, § 224.21 provides a lawful reason for entitlement of this third-party defendant to an accelerated judgment as against the third-party complaint these primary defendants have served and filed under Rule 204. Division 2 ruled it did not (Morgan v. McDermott, 8 Mich. App. 260). I agree.

Two statutes should be scrutinized together. One is CLS 1961, § 224.21. The other is new and presently controlling CLS 1961, § 600.2925, the third-party defendant having been duly served and brought in upon grant of motion made by the primary defendants under GCR 1963, 204.1. Section 600.2925 provides without reservation that "Joint tort-feasors who are summoned in as third-party defendants pursuant to court rule may likewise be liable for contribution."

Now when these joint torts as alleged were committed in January of 1964, both the primary defendants and the third-party defendant were suable and liable alike, under the wrongful death statute, to the plaintiff for the death of the plaintiff administrator's 12-year-old daughter. Yet the plaintiff administrator chose to sue the primary defendants only. Does either the neglectful failure or the purposeful omission of notice, under section 224.21, bar the right of those chosen by the plaintiff as defendants to protect their currently inchoate right to contribution?^[3] It seems to me that, by considering the exact nature of the right of contribution, and especially the purpose of these widely enacted new provisions for contribution among tort-feasors (see annotation 34 ALR2d 1107, § 1), the answer becomes evident.

"It has often been stated by the courts that contribution is founded on principles of equity and natural justice. The doctrine rests on the principle that when parties stand in aequali jure, the law requires equality, which is equity, and one of the parties will not be obliged to bear more than his just share of a common burden or obligation to the advantage of his co-obligors. 13 CJ p 821. It is applied in those cases where one or more of several parties equally obligated have done more than their share in performing a common obligation." Lorimer v. Julius Knack Coal Co. (1929), 246 Mich. 214, 217 (64 A.L.R. 210).

For an identical statement of the rule, see Sattelberger v. Telep, supra. There the equitable principle applied to a direct suit by one joint tort-feasor against the other, after the former had satisfied the original plaintiff's judgment. The court held:

"Under our law, the failure of the defendant in the principal action to invoke the third-party procedure does not defeat the statutory right of contribution. Impleader may be had for the protection of the right of contribution, but it is not under the statute a sine qua non to the enforcement of contribution against the nonparty tort-feasor."

An excellent summation of the right of contribution, starting with the inchoate event of common liability and proceeding on to the ripening of that event into the status of an actionable cause, appears in the recent text of section 46, 18 Am Jur 2d, Contribution, pp 65, 66. The section is headed "Generally; inchoate right to contribution." The complete second paragraph thereof reads:

"It is important to note, however, the distinction between the accrual of the right to recover contribution and the inchoate right to contribution before payment or discharge of the common liability. Even though a cause of action for contribution does not become complete until the claimant's act of payment or discharge of more than his equitable share of the common liability, generally a right to be protected against an unfair exaction — an incidental or inchoate right to compel contribution — comes into being and becomes the property right or interest of a tort-feasor the instant the joint or concurring acts of himself and other tort-feasors give to the injured person a cause of action against them — in other words, when the common liability arises. Such right is in a sense an incident which follows the principal event out of which the injured person's cause of action arises, and once in being, although contingent, subordinate, or inchoate, it is nonetheless real and subsisting, and has an existence in contemplation of law until it is no longer needed as a resource to which the joint tort-feasor may look for relief from an imposition upon him of an inequitable share of the burden on account of the joint tort, provided he does not in the meantime waive or give up such right. This inchoate right arises as soon as the acts of the joint wrongdoers raise the injured person's cause of action against them; it does not depend upon an action against them being commenced. It is held that even death of a joint tort-feasor after the negligent act has fixed the right of contribution upon the common liability does not destroy such right nor interfere with its legal growth into an accrued cause of action." (Emphasis of "recover" is that of the text-writer.)

Today's question, carried from the foregoing general principles to the specific, has been settled by reasoned cases which seem to be opposed by no recognized authority. See Tarkington v. Rock Hill Printing & Finishing Co. (1949), 230 NC 354 (53 SE2d 269, 11 ALR2d 221) and cases gathered under section 8 of the appended ALR annotation. The lead paragraph of section 8 lays down the applicable rule with precision (p 242):

"A defendant in an action for personal injury or death arising out of a joint tort may exercise his statutory right to have another joint tort-feasor brought in and made a party defendant for the purpose of asserting a right to contribution, notwithstanding that the plaintiff's right of action against such other tort-feasor, originally subsisting, has been lost by the lapse of time."

The following additional authorities are directly in point: Wnek v. Boyle (1953), 374 Pa 27 (96 A2d 857); Schott v. Colonial Baking Co. (US DC Ark, 1953), 111 F Supp 13; Godfrey v. Tidewater Power Co. (1943), 223 NC 647 (27 SE2d 736, 149 A.L.R. 1183), and Cooper v. Philadelphia Dairy Products Co. (1955), 34 NJ Super 301 (112 A2d 308). The latter italicizes its major term — "The continued subsistence of the common liability is not a sine qua non to enforcement of contribution under the statute."

The Schott Case, above, exhibits a thoroughly considered opinion. The court concluded (p 24):

"The cases referred to by the court herein point unerringly to the conclusion that the common liability need only exist at the time plaintiff's cause of action accrues and need not exist at the time one of the joint tort-feasors seeks contribution. This principle is expressed in the commissioner's note to section 1 of the uniform contribution among tort-feasors act where it is said:

"``The common obligation contemplated by this act is the common liability of the tort-feasors to suffer adverse judgment at the instance of the injured person, whether or not the injured person elects to impose it.'"

From these basic principles turn to the present situation. Here the primary defendants and the third-party defendant are, by instant pleading, joint tort-feasors. The third-party defendant is a county road commission seeking to deny, not any right against it of the plaintiff, but the right of its fellow tort-feasors to protect or enforce their inchoate right of contribution. In such a case, for reasons made manifest by the difference between the right of action provided by section 224.21 and the right of contribution provided by section 600.2925, it is not surprising that the authorities thus far reported adhere to this reasoning (Minneapolis, St. P. & S.S.M.R. Co. v. City of Fond du Lac (CA 7, 1961), 297 F2d 583 [93 ALR2d 1378]):

"The question presented is whether noncompliance with the above statute bars a claim for contribution in a third-party proceeding. We agree with the trial court that noncompliance with the statute is not a bar under the circumstances of this case.

"The right of contribution between joint tort-feasors arises at the time of the concurring negligent acts. Until one of the joint tort-feasors pays more than his proportionate share of the underlying claim, the right remains contingent, subordinate and inchoate. When a tort-feasor pays more than his proportionate share, the right ripens into a cause of action. [citing cases]"

This decision, either as to fact, principle, or reasoned sense, cannot be distinguished from the case at bar. It is the annotated case which precedes an annotator's brief headed "Claim for contribution or indemnification from another tort-feasor as within provisions of statute or ordinance requiring notice of claim against municipality" (p 1385), and was followed in Royal Car Wash, Inc., v. Mayor and Council of Wilmington (Del Super, 1968), 240 A2d 144. These excerpts appearing in Royal make the point of this dissent:

"This Court has held that the personal injury statute of limitations was not a bar to a defendant's third-party complaint for contribution because the third-party claim is not for recovery of personal injuries but for contribution. Goldsberry v. Frank Clendaniel, Inc. (1954), 49 Del (10 Terry) 69 (109 A2d 405). * * *

"The Court held the statute inapplicable to contribution because it was inconceivable that the legislature should purport to grant the valuable right of contribution among joint tort-feasors but, for all practical purposes, place it within the power of the original plaintiff to decide whether or not it could be exercised.

"The above reasoning is equally applicable here because the contribution claim is not an action for ``damages on account of physical injuries, death or injury to property' and the evil of permitting the plaintiff to determine whether or not the right to contribution should be exercised is present. These factors preclude the applicability of the notice statute to a third-party claim for contribution. This result has been reached by courts of other jurisdictions. Geiger v. Calumet County (1962), 18 Wis 2d 151 (118 NW2d 197); Minneapolis, St. P. & S.S.M.R. Co. v. City of Fond du Lac (CA 7, 1961), 297 F2d 583 (93 ALR2d 1378). * * *

"The court stated that the right of contribution between joint tort-feasors arises at the time of the concurring negligent acts. But, until one of the joint tort-feasors pays more than his proportionate share of the underlying claim, the right remains contingent, subordinate and inchoate.

"The court further noted that the notice statute was concerned with the necessity for presentation of a direct claim against the city as a condition precedent to maintaining an action thereon. The contribution claim was contingent and had not ripened into a cause of action against the city at the time the third-party complaint was filed. Failure of the railroad to present such a contingent claim to the council could not bar its recovery in the third-party action."

To summarize:

1. The Court's present error may be due to insufficient study of the nature of third-party practice and the specific purpose of section 600.2925 where, as here, the pleaded setting is that of a tort action brought by the plaintiff against primary defendants with the latter seeking an adjudication by third-party procedure of an ultimate right to contribution, as against another tort-feasor, should they be compelled to pay damages to the plaintiff. Now that section 600.2925 has lifted the former bar against contribution among joint tort-feasors, the right of contribution in Michigan rests as in any case of contractual relations upon an equitably implied promise arising out of a legally recognized duty to share liability. I think our majority would understand this had the primary defendants been able to plead as against this third-party defendant a formal contract to contribute or, if such be the case, a formal contract of full indemnity.

2. What Justice ADAMS and his indorsers are telling the profession is that, a right of action for wrongful death having arisen against two joint tort-feasors, one being a road commission derelict under CLS 1961, § 224.21, the other tort-feasor has no way to protect his inchoate right of contribution as against the road commission excepting when he is able to persuade anyone authorized so to do to give, on time, a section 224.21 notice.

The idea is at war with the very purpose of CLS 1961, § 600.2925 in that it permits the plaintiff to choose his defendant and thereby prevent contribution. Too, it points up another unanswered question in wrongful death cases. Consider this:

Suppose the fatally injured victim should linger, unconscious for more than 60 days "after such injury shall have occurred," with no notice given meanwhile. Since we have held that the right of action for wrongful death does not accrue until the date of death (Coury v. General Motors Corporation [1965], 376 Mich. 248), would not the statutory right of action for wrongful death be thereby forestalled, before it accrued, and would not the supposedly assured right of another joint tort-feasor, to contribution as against the road commission, likewise come to total defeat?

3. CLS 1961, § 600.2925 is Michigan's enactment in substance of the uniform contribution among tort-feasors act, an informative discussion of which appears in 18 Am Jur 2d, Contribution, "c. Effect of Statutes," sections 41-43, pages 60-64; also in Sattelberger v. Telep, supra. The effect of such statutes is to create rights which did not exist before, and to destroy a valid defense to certain actions for contribution which were available before the enactment thereof. By implying a promise to contribute they have taken away a substantive right from one joint tort-feasor and have created a right in the other tort-feasor who has paid the plaintiff. As said in Zarrella v. Miller (1966), 100 RI 545 (217 A2d 673, 676), following and quoting Puller v. Puller (1955), 380 Pa 219 (110 A2d 175, 177):

"The theory is that as between the two tort-feasors the contribution is not a recovery for the tort but the enforcement of an equitable duty to share liability for the wrong done."

4. I refrain purposely from discussion of the question which seems to have absorbed other thinking here. It is whether a statutory action for wrongful death, otherwise rightful in all respects, is subject to defeat by failure of timely notice under CLS 1961, § 224.21. As for that point I prefer to wait until we have decided Grubaugh v. City of St. Johns, No. 52,309 (leave to bypass granted March 25, 1969). In that case the question we have accepted for review is whether a standard requirement of notice to a municipal corporation, as in section 224.21 provided, is unconstitutional in the application thereof to a person or other claimant who is under legal or actual disability.

I vote to affirm the judgment of the Court of Appeals. All costs should abide the final result.

SUPPLEMENT (July 16, 1969).

Since the foregoing dissent was written Justice ADAMS has delivered to other members of the Court an addendum to the Court's opinion for reversal. In it we behold continued insistence that county boards of road commissioners are somehow immune^[4] from third-party actions for contribution when the plaintiff in the case has neglected or omitted the giving of a CLS 1961, § 224.21 notice. Again, no authority for ignoring the distinction between the right of action provided in favor of "any person injured" by section 224.21, and such a third-party action, is offered. We are simply asked to read (a) Hack Investment Co. v. Concrete Wall Company (1959), 356 Mich. 416 (an opinion which dealt exclusively with the 1961-repealed contribution statute (Act 303) of 1941 [CL 1948, §§ 691.561-691.564]; an opinion which was handed down in 1959 of a cause commenced in 1955, years before present CLS 1961, § 600.2925 and present GCR 1963, 204 were conceived; an opinion which arose out of claim that the defendant, not a public agency or municipal corporation, had negligently damaged certain property to plaintiffs' injury in the sum of $17,058.12), and (b) excerpts taken from the Minnesota case of White v. Johnson (1965), 272 Minn 363 (137 NW2d 674), of which more later.

Comment:

A. The act of 1941 did of course permit the plaintiff to nominate the defendant or defendants of his choice and thus prevent them from obtaining contribution. Such was the evil which no one, including any Brother seated here, has undertaken to deny was the primary reason for repeal of the act of 1941 and replacement thereof with section 2925.

Now it may be, perchance, that the primary purpose of section 2925, enacted as it was some 2 years prior to our approval of the General Court Rules of 1963, has not yet fully penetrated the comprehension of all present members of the Court. Yet 5 of us, still seated here, should recall right well the 1962-prepared and 1962-discussed "Committee Comment" which appeared then — and yet appears in all of our annotated statute books — below section 2925. That particular comment was approved by this Court, with the rest of the committee's corresponding commentaries, for submission to the profession as part of the indoctrination meetings of 1962.^[5] Whatever one's memory, perhaps a little refreshment, sipped from material utilized during those meetings, will sharpen the judicial understanding.

Attend first the uniform contribution among tort-feasors act which, in 1939, had been promulgated and published by the National Conference of Commissioners on Uniform State Laws (9 ULA pp 230-252), also the strengthening revision thereof which the commissioners introduced in 1955 (9 ULA 1968 Cum Supp pp 125-133). In their prefatory note the commissioners pointed up the need for more uniform laws providing contribution among joint tort-feasors and drew a purposeful bead on the fact that a plaintiff in tort is, absent corrective legislation, "lord of his action." (9 ULA at p 231):

"As an original proposition, all might agree that courts should not lend their aid to rascals in adjusting differences among them. But all tort-feasors are not rascals, in spite of the literal translation of the term as wrongdoers. Most joint and several tort liability results from inadvertently caused damage, although it is almost impossible to draw a practical line between torts of inadvertence and others. It is, then, somewhat ironic to note that at common law contribution is denied among all tort-feasors and is allowed as a matter of course to one who has deliberately chosen to violate a contractual obligation undertaken with others. And this situation is aggravated by the common-law view that the injured person is ``lord of his action' and, when injured by the joint and several tort of two or more, may place the loss where and how he sees fit.

"This item of private, rather than judicial, control of the distribution of loss arising from a common burden of liability has no doubt been largely responsible for the recent trend toward legislative and judicial repeal or modification of the common-law rule. Unfortunately, however, the legislatures in 6 States have confined contribution among tort-feasors to those subjected to joint and several judgment liability, thus virtually leaving to the injured person control of the distribution of loss through contribution. He cannot be compelled to take judgment against tort-feasors whom he does not wish to sue. By refusing to sue or take judgment against one or more of several tort-feasors commonly liable to suffer judgment, even though trial would have proven them equally responsible with him against whom judgment was taken, the injured person may confer immunity from contribution and at the same time secure complete compensation from the luckless tort-feasor whom he wishes to hold liable."

Next, review a part of the July 9, 1963 bulletin issued by the negligence law section of the State Bar of Michigan. In it Professor Joiner^[6] presented what is probably the best extant compendium of the aforesaid indoctrinal discussions so far as same pertained to section 2925 and Rule 204. Under heading "3. Contribution," Professor Joiner wrote (pp 13 and 14 of bulletin):

"This RJA section 2925 gives a person against whom a joint judgment has been taken who has paid more than his share the right of contribution against other joint tort-feasors for what he has paid. The following sentence, ``joint tort-feasors who are summoned in as third-party defendants pursuant to court rules may likewise be liable for contribution,' was added when the judicature act was revised and Court Rule 204 was adopted. The obvious intention of this addition was to make joint tort-feasors liable for contribution through the third-party practice procedure. Two provisions in the rule point this out. The rule says: ``by right of contribution or otherwise,' and it provides ``who is or may be liable.' These two situations make it clear that it was intended to cover the contribution situation.

"The rule grants no substantive right. The statute gives substantive right to contribution. The rule provides however the procedure. The procedure provided in the rule is through the use of the third-party practice which is a different procedure than was in effect prior to the time the rule was adopted where a joint judgment procedure was required. ``Who is or may be liable' is specifically intended to permit the acceleration of claims for indemnity or contribution. Jeub v. B G Foods, Inc. (1942), 2 FRD 238."

Lastly, consider the latest descriptive summary Messrs. Honigman and Hawkins have provided (1 Honigman & Hawkins, Mich Court Rules Annotated [2d Ed], 1969 pocket supp at p 83):

"(a) The effect of RJA § 2925. Before the contribution among joint tort-feasors' statute was amended in RJA § 2925, contribution depended upon whether plaintiff's action had been brought against all joint tort-feasors, and had obtained a joint judgment against them. The amendment establishes an additional situation in which contribution can be sought. By the amendment, joint tort-feasors summoned in as third-party defendants are also made liable for contribution. The committee comment, under final report, joint committee on Michigan procedural revision, part II, section 22.25, makes clear the intended effect of this change: ``The next to the last sentence in (1) is inserted to accomplish the result intended in Rule 204.1, that the right of contribution should not depend on whether or not the plaintiff saw fit to sue both joint tort-feasors.'"

B. The only other authority called to attention in the aforesaid addendum is White v. Johnson, supra. As to that case I agree with Division 2 that it is factually inapplicable here,^[7] the Minnesota court having ruled in the ultimate that the timely notice, which had been given to third-party defendant city of St. Paul by primary defendant Johnson, was sufficient to sustain Johnson's third-party complaint as against the city's motion for summary judgment. But there is language in the opinion which, surely, gives no comfort to Justice ADAMS and those voting with him. Contemplate these contextually continuant passages (White v. Johnson, pp 367, 368, 370, 371 [NW2d 677, 679, 680]):

"2. Before reaching the ultimate question, whether the notice statute permits a defendant in an action to preserve his third-party claims by giving notice himself, the nature of those claims must be examined. Under his third-party complaint, Johnson would be entitled to prove that the city owed him recovery for either contribution or indemnity. Upon the record before us, the facts are not sufficiently revealed to determine whether either claim in fact exists; thus, we can only determine whether a claim for contribution or indemnity or both might possibly be proved upon trial and, if so, whether either claim or both can be preserved against the city by the notice given.

"Indemnity and contribution are both remedies based on equitable principles to secure restitution to one who has paid more than his just share of a liability. They contemplate different measures of recovery, for indemnity secures entire reimbursement and contribution requires equal sharing. Disregarding those situations where a right to indemnity stems from contract, or because one party is only vicariously liable, or because one party followed the directions of another, whether indemnity or contribution possibly lies in this case depends on the conduct of the two wrongdoers and the relative culpability of their actions. * * *

"Conceptually, the giving of notice is an essential element of the cause of action, but realistically, because of the pre-existing right and duty, liability is created at the instant the tort is committed. The city is then subject to a liability, and it is no more unexpected that a city might settle a claim before the giving of notice than that private parties might settle before commencement of suit. We have held that a covenant not to sue secured by one wrongdoer does not destroy the common liability necessary for contribution. And the majority of the courts hold that running of the statute of limitations against one defendant on the plaintiff's claim does not bar a suit for contribution against him. The reasoning underlying these decisions is that joint liability arises the moment the tort is committed and these defenses come into being after the conduct which creates that liability. Moreover, since the right to recover contribution is based on equitable principles and has the objective of compelling joint wrongdoers to share responsibility for damages inflicted by their tortious acts, the conduct of the person from whom contribution is sought ought to control the right to maintain the action. The objective of contribution has equal validity where one of the tort-feasors is a municipal corporation. To permit a personal defense against the injured plaintiff to destroy the right to contribution from a municipality under the circumstances disclosed in this case would not only frustrate the basic aim of permitting recovery between participating tort-feasors but would deny third-party rights against a municipality where the statute creating it neither expressly nor by fair implication so intends.

"We are of the opinion that these reasons are applicable to a statute making notice a condition precedent to bringing suit. Accordingly, we hold that the right to recover contribution is not defeated by the failure of the plaintiffs to give notice to the city." (Emphasis that of present writer.)

One specific should bar all thought that White v. Johnson decides for us, either way, the extent of present application of sections 224.21 and 2925. It lies within White's characterization of the Minnesota statute as "making notice a condition precedent to bringing suit", which indeed is true. The Minnesota statute includes this mandate of significance:

"No action therefor shall be maintained unless such notice has been given; and unless the action is commenced within one year after such notice",

whereas section 224.21 has never, throughout its legislative history, exhibited any limitation of the liability ordained thereby, or of the right to sue upon that liability, between breach of the statutory duty and expiration of the 60-day period.^[8] The fact is that our statute, providing liability as well as right of suit, sets forth a short — very short — time limitation against the liability which accrues when the duty imposed thereby is breached.

C. The choice the Court must make here, as it mulls and then ruminates two statutes, one of which (section 224.21) was conceived and written when liability for contribution among joint tort-feasors was unheard of in Michigan, and the other (section 2925) being a recent joint determination of the legislature and this Supreme Court to join a nationally developing movement to provide generally the right of contribution between and among joint tort-feasors, is bound to spill over and affect every right and every cause, arising in part under PA 1964, No 170 (effective July 1, 1965), where that right or cause is not only against a municipal corporation, a political subdivision, or the State, but also has arisen against some other or others constituting joint tort-feasors with such corporation, subdivision, or sovereign. The choice accordingly had better be right, these days of multi-car collisions and multi-parties litigant considered.

D. Where finally does Morgan v. McDermott leave the trial bench and bar? The majority answers — at dire risk of communicating straddler's itch — only this way:

"Third-party plaintiffs are in this dilemma: either governmental immunity has not been waived as to an action for contribution such as they assert, or, if reliance is placed on the statute, third-party plaintiffs cannot insist on its benefits because the statutory 60-day notice was not given."

I vote again to affirm.

DETHMERS, J., concurred with BLACK, J.

T.G. KAVANAGH, J., did not sit.

NOTES

[1] See, currently, CLS 1961, § 600.2911 (Stat Ann 1962 Rev § 27A.2911). — REPORTER.

[2] All of chapter 22, which included section 6, 7, and 8, was repealed by PA 1964, No 170, effective July 1, 1965 (MCLA §§ 691.1401-691.1415, Stat Ann 1969 Cum Supp §§ 3.996[101]-3.996[115]). Since the accident in this case occurred on January 29, 1964 and the complaint was filed on March 17, 1965, with leave granted on April 20, 1965 to join the third-party defendant, the repeal is inapplicable to this case. Even if third-party plaintiffs were factually in a position to bring their cross-action under the 1965 act, they would not benefit thereby because of the following language quoted from PA 1964, No 170, § 2:

"The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948."

[3] This section was amended by PA 1951, No 234, to require actions thereunder to be brought against the board of county road commissioners. It was last amended in 1954 by PA 1954, No 12, relating to the service of notice. At the time of this action the controlling provisions were as follows:

"It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system. Actions arising thereunder shall be brought against the board of county road commissioners of the county and service shall be made upon the clerk and upon the chairman of the board made defendant therein, which shall be named in the process as the ``board of county road commissioners of the county of ______'"

[4] As amended, the pertinent features of section 1 were:

"Any person * * * sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, * * * in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway * * * and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person * * * so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction."

[5] In an application for rehearing filed in the Michigan Court of Appeals, it was pointed out that United States District Court Judge Fox subsequently reversed his position reported in 236 F Supp 677 and later held the notice provisions of the statute (CL 1948, § 224.21) were applicable in an action brought under the wrongful death act, which conclusion was upheld by the United States court of appeals for the 6th circuit in an opinion issued November 30, 1967, with copy attached to the application for rehearing. Nonetheless, the application for rehearing was denied on January 23, 1968.

[6] As bearing on the basis of liability of the board of county road commissioners, see Moore v. County of Ingham (1961), 363 Mich. 533.

[7] In Grand Trunk Western Railroad Co. v. City of Detroit (1955), 342 Mich. 537, plaintiff's employee was injured by a sign the city had attached to a pole. The railroad, after settling its employee's claim, sought indemnification or contribution from the city. It was held that the action could not be maintained because plaintiff had failed to comply with statutory and charter prerequisites necessary to make defendant subject to suit. Justice BUTZEL stated (p 541): "Under either of plaintiff's theories the requirements of the charter are mandatory and were not complied with." While the case does not further discuss the reason for such a holding where the action is one for contribution, the holding is squarely in point here.

[8] As to Justice BLACK'S comments under point 2 of his summary, since there was no notice given in this case, we do not have a question of right of notice by a third-party plaintiff before us. That he has come to a correct assumption, however, is not necessarily so. In White, supra, the Minnesota court reasoned to a contrary result. The Court said (pp 370, 371):

"Our statute requiring notice does two things. It compels notice to a municipality, but it also destroys the municipality's common-law immunity from liability for negligence in the maintenance of its streets and public grounds. Thus the statute concurrently creates a duty upon the municipality to use due care and a right against the municipality on the part of any person damaged because of a breach of that duty. We have here, then, a right and a duty pre-existing the injury. * * *

"The more precise characterization of the notice requirement is that it is a condition precedent to bringing suit for the practical purpose of quickly informing a municipality of injuries for which it might be liable. Conceptually, the giving of notice is an essential element of the cause of action, but realistically, because of the preexisting right and duty, liability is created at the instant the tort is committed. The city is then subject to a liability, and it is no more unexpected that a city might settle a claim before the giving of notice than that private parties might settle before commencement of suit. We have held that a covenant not to sue secured by one wrongdoer does not destroy the common liability necessary for contribution. And the majority of the courts hold that running of the statute of limitations against one defendant on the plaintiff's claim does not bar a suit for contribution against him. The reasoning underlying these decisions is that joint liability arises the moment the tort is committed and these defenses come into being after the conduct which creates that liability. Moreover, since the right to recover contribution is based on equitable principles and has the objective of compelling joint wrongdoers to share responsibility for damages inflicted by their tortious acts, the conduct of the person from whom contribution is sought ought to control the right to maintain the action. The objective of contribution has equal validity where one of the tort-feasors is a municipal corporation. To permit a personal defense against the injured plaintiff to destroy the right to contribution from a municipality under the circumstances disclosed in this case would not only frustrate the basic aim of permitting recovery between participating tort-feasors but would deny third-party rights against a municipality where the statute creating it neither expressly nor by fair implication so intends.

"We are of the opinion that these reasons are applicable to a statute making notice a condition precedent to bringing suit. Accordingly, we hold that the right to recover contribution is not defeated by the failure of the plaintiffs to give notice to the city." (Emphasis added.)

The Minnesota court held that a notice by the third-party plaintiff, even though only as to his own claim against the city, was sufficient to permit impleading the city as a third-party defendant for purposes of contribution.

[1] The noun "person" is stressed purposely as reference to section 224.21 proceeds. The ensuing text will explain fully.

[2] "The next to last sentence in (1) is inserted to accomplish the result intended in Rule 204.1, that the right of contribution should not depend on whether or not the plaintiff saw fit to sue both joint tort-feasors."

[3] To ascertain precisely that these primary defendants could not have given the statutory notice, let us read the specific requirement of section 224.21:

"Provided, however, That no board of county road commissioners, subject to any liability under this section, shall be liable for damages sustained by any person upon any county road, either to his person or property, by reason of any defective county road, bridge or culvert under the jurisdiction of the board of county road commissioners, unless such person shall serve or cause to be served within 60 days after such injury shall have occurred, a notice in writing upon the clerk and upon the chairman of the board of county road commissioners of such board, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injuries as far as the same has become known, the names of the witnesses to said accident, if any, and that the person receiving such injury intends to hold such county liable for such damages as may have been sustained by him." (Emphasis supplied by present writer.)

[4] See the this-or-that penultimate paragraph of the Court's opinion, quoted post with comment.

[5] The section 2925 comment is quoted by footnote, ante at p 362. With respect to it Professor Hawkins has recently written, in his practice commentary below 33 MCLA, § 600.2925 (p 782):

"Why should the right to contribution turn on whether the plaintiffs elect to sue separately or join together? That is the kind of abuse RJA § 2925 was revised to avoid. See committee comment."

[6] Co-chairman of the GCR authoring committee and discussion leader of the 1961-1962 statewide meetings of lawyers and judges concerned with prospective effect of the RJA and GCR.

[7] Division 2 pointed out (8 Mich App at 263):

"The supreme court of Minnesota held that the right to recover contribution was not defeated by failure of the plaintiff to give notice where the third-party defendant gave notice to the city of his claim for injury."

[8] The language of the notice requirement set forth in section 224.21 goes back to the amendment of the same section (21) by the act of 1919, No 388, pp 687, 688. It has always included the "subject to any liability under this section" enlightener of legislative purpose.