Summary
In Davis the Court noted that an action is commenced when legal process is placed in the hands of a person authorized to make service.
Summary of this case from Shepard v. KaylerOpinion
No. 5 April Term 1971, Docket No. 52,909.
Decided May 3, 1971.
Appeal from Court of Appeals, Division 2, J.H. Gillis, P.J., and Danhof and O'Hara, JJ., affirming Oakland, Arthur E. Moore, J. Submitted April 6, 1971. (No. 5 April Term 1971, Docket No. 52,909.) Decided May 3, 1971.
24 Mich. App. 130 affirmed.
Complaint by Grant Davis and Hazel Davis against Julius Beres under the dramshop act for damages for personal injuries. Defendant appealed to the Court of Appeals. Affirmed. Defendant appeals. Affirmed.
Smith, Magnusson Anderson, for plaintiffs.
Bell, Hertler Hopkins, for defendant.
In 1958, by amendatory Act No 152, the Legislature declared a specific time limitation against the institution of actions provided by our dramshop statute (MCLA § 436.22 [Stat Ann 1971 Rev § 18.993]). The limitation read then and reads now:
"Any action shall be instituted within 2 years after the happening of the event."
On appeal granted ( 383 Mich. 814) to review the decision of Division 2 ( Davis v. Beres, 24 Mich. App. 130), the appellant-defendant avers upon appellee-accepted facts that the instant dramshop action was not instituted or — synonymously — commenced within the time allowed by the quoted limitation.
We agree with Division 2's conclusion that "instituted" and "commenced" mean the same in today's context. See 24 Mich App at 132; also Black's view of "institute" (Black's Law Dictionary [4th ed] p 940), citing cases and defining the verb as "To inaugurate or commence; as to institute an action."
November 20, 1968 plaintiffs filed their complaint. It alleges that on November 26, 1966, one Dale Owen, then and there intoxicated in the defendant's bar, was furnished more intoxicating liquor by defendant and, shortly thereafter, that he drove his motor vehicle negligently and while yet intoxicated to the personal injury of each plaintiff.
The complaint and summons were delivered promptly to the county sheriff. It is not questioned that the papers were in good faith placed in his hands for immediate service. Service was made December 2, 1968.
Defendant moved for accelerated judgment alleging that the action was barred for failure of service prior to expiration of the quoted two-year period. Plaintiffs responded and now respond much as Division 2 did by testing applicability of the quoted limitation, not as one of interpretation and application of the amendatory section but, rather, by interpreting and applying to it specific provisions of the RJA and GCR 1963. For details of this approach, see 24 Mich App at pp 132-135.
Was this action "instituted" within two years after the date of the "happening of the event" which gave rise to plaintiffs' statutory cause? The question depends upon what the Legislature intended, in 1958, by "instituted." It is not answerable by what took place later, in 1963, when the RJA and GCR became effective. Our rightful answer is found by looking at the legal situation, and the professional parlance of 1958 and decades prior thereto, for the legislative purpose.
In 1940 our Court adopted and applied this rule of statutory construction, the then adoptive parent being Ruling Case Law (25 RCL, § 215, p 959):
"`There is always a tendency, it has been said, to construe statutes in the light in which they appear when the construction is given. It is easy to be wise after one sees the results of experience. The true rule is that statutes are to be construed as they were intended to be understood when they were passed. Statutes are to be read in the light of attendant conditions and the state of the law existent at the time of their enactment. The words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted.'" (Quotation taken from Wayne County Board of Road Commissioners v. Wayne County Clerk, 293 Mich. 229, 235, 236).
We applied it again in Husted v. Consumers Power Company (1965), 376 Mich. 41, 54. The rule originated when Platt v. Union Pacific R. Co. (1878), 99 U.S. 48, 63, 64 ( 25 L Ed 424) was handed down. It appears textually now in 50 Am Jur, Statutes, § 236, p 224. The concluding sentence of § 236 reads:
"Since, in determining the meaning of the terms of a statute, the aim is to discover the connotation which the legislature attached to the words, phrases, and clauses employed, the words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted, and the statute must be construed as it was intended to be understood when it was passed."
When the amendment of 1958 was conceived and considered, a law action was commonly spoken of and regarded as having been instituted in bar of limitation where, within the statutorily allowed period, the plaintiff's praecipe for summons was filed, the summons was issued, and that summons was placed in the hands of an authorized person with the bona fide intention of having it served.
If under former practice the plaintiff chose to file his declaration with notice to plead, then he was required correspondingly and as promptly to place a copy of the declaration and a copy of the notice to plead in the hands of an authorized person for service, in order to have his action commenced on time. See CL 1948, § 613.4 (Stat Ann § 27.734) as then citable.
Cases uniformly attesting the above are Howell v. Shepard (1882), 48 Mich. 472; Peck v. German Fire Insurance Company (1894), 102 Mich. 52; Harvey v. Detroit Fire Marine Insurance Co. (1899), 120 Mich. 601; Dedenbach v. Detroit (1906), 146 Mich. 710; Taylor v. Mathews (1923), 224 Mich. 133; People's Mortgage Corporation v. Wilton (1926), 234 Mich. 252; Home Savings Bank v. Young (1940), 295 Mich. 725; Nathan v. Rupcic (1942), 303 Mich. 201 and Korby v. Sosnowski (1954), 339 Mich. 705. Such was the law in 1958, and such is the presumptive sense in which the words employed in the quoted amendment were understood when Act 152 was considered and enacted.
Our ruling is that this suit was "instituted" prior to expiration of the two-year period, six days prior to such expiration. It follows that defendant's motion for acceleration was properly denied.
To conclude:
Neither Maschmeyer ([1965], 376 Mich. 289), nor Holland ([1964], 373 Mich. 34), have proper application to today's question.
Maschmeyer, inconclusive for want of five endorsers of any opinion, dealt with the specific language of the mechanics' lien law, the requirement of which was and yet is the filing of a "bill in chancery, under oath, and notice of lis pendens recorded in the office of the register of deeds" (MCLA § 570.10 [Stat Ann 1970 Rev § 26.290]).
As for Holland, the causes there arose February 8, 1960. The four suits were instituted by the filing of four declarations on February 14, 1962; six days late by any view of § 436.22. No "savings provisions" of any other statute are here involved, we having found that the instant action was instituted six days ahead of the two year cutoff date.
Affirmed. Costs to plaintiffs.
T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, and WILLIAMS. JJ., concurred.