“We rule it was incumbent upon the defendant in the instant case to properly raise such a defense by pleading both the appropriate statute and the facts which indicated that the statute was applicable as a special defense which prevented recovery against this defendant.”
How later courts described this case
- “We rule it was incumbent upon the defendant in the instant case to properly raise such a defense by pleading both the appropriate statute and the facts which indicated that the statute was applicable as a special defense which prevented recovery against this defendant.”
Written by the judges who cited it.
The opinion
R. B. Burns, P. J.
(dissenting). Regrettably, I *645 must dissent. The majority’s attempt to reach a sympathetic result clearly misapplies too many rules of law.
The majority makes a crucial admission that must be emphasized: "Plaintiff should have brought an action against the state * * * the Legislature has provided that the plaintiff’s remedy is an action against the state. MCLA 250.61; MSA 9.901.” The statute could not be clearer:
"On and after January 1, 1960, the cost of constructing, improving and maintaining trunk line highways shall be met entirely by the state, and the counties, townships and incorporated cities and villages shall thereafter be relieved of all expenses and legal liabilities in connection therewith * * * .”
This Court has construed this statute in the context of a maintenance agreement between the state and a county (or city) in a manner so as to provide defendant herein with an absolute defense from liability. Moyer v Wayne County Road Commission, 52 Mich App 285 ; 217 NW2d 53 (1974), Bennett v City of Lansing, 52 Mich App 289 ; 217 NW2d 54 (1974).
Nevertheless, the majority feels constrained to create an involved and untenable procedural argument in order to defeat the plain intent and letter of the statute. The essence of this argument is that defendant "misled” and prejudiced plaintiff by filing an improper motion which somehow "allowed” the statute of limitations to run.
The truth is that plaintiff allowed the statute to run; defendant would not even be a party to this lawsuit if plaintiff had followed MCLA 250.61; MSA 9.901 and brought her action against the state. Also significant is the majority’s recital of part of the chronology of proceedings below:
*646 "[0]n October 5, 1972 defendant filed another motion for summary judgment, on the basis that plaintiff had failed to state a claim upon which relief can be granted. GCR 1963, 117.1, 117.2(1). The motion indicated that it was based on MCLA 250.61; MSA 9.901. No affidavit was attached indicating precisely what defense was relied on, and accordingly the motion was denied.”
In October, 1972, the statute of limitations had three months to run in this case. Defendant’s motion, whether or not technically proper, certainly put plaintiff on notice as to the requirements of MCLA 250.61; MSA 9.901 well before the running of the statute of limitations. 1
The majority elevates to the critical the difference between the motion for accelerated judgment under GCR 1963, 116 and that for summary judgment under GCR 1963, 117. This Court has repeatedly stated, however, that the "technical impropriety of the form of the order is not reversible error. Bloss v Williams, 15 Mich App 228 ; 166 NW2d 520 (1968), Curry v Detroit, 49 Mich App 240 , 241 fn 1; 211 NW2d 559 , 560 fn 1 (1973)”. Buddy v Department of Natural Resources, 59 Mich App 598 , 599 fn 1; 229 NW2d 865 , 866-867 fn 1 (1975). Similarly, "[a]n incorrectly labeled motion is considered as if correctly labeled, absent prejudice to the other party. Cibor v Oakwood Hospital, 14 Mich App 1 ; 165 NW2d 326 (1968); 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 337”. Birch Run Nursery v Jemal, 52 Mich App 23 , 24 fn 1; 216 NW2d 488 , 489 fn 1 (1974). This defendant bears no responsibility for any prejudice suffered by plaintiff *647 through the running of the statute of limitations. It should also be emphasized that this Court has affirmed the grant of summary judgment in the precise context presented herein. Bennett v City of Lansing, supra.
Finally, and most objectionably, the majority encourages the trial court on remand to consider as a waiver the defendant’s understandable failure to foresee the rigidity of today’s opinion. The majority also admits (as it must) that "ordinarily a court should freely allow amendment of an answer pursuant to GCR 1963, 118, so as to prevent waiver of defenses according to GCR 1963, 111 * * # »
I feel as much sympathy as does the majority for plaintiff’s tragic loss. I cannot, however, ignore the established rules of pleading and ignore a statute of this state. I would affirm.
It is probable that the very denial of this motion on the ground of failure to include a particularized supporting affidavit was itself erroneous. The motion was apparently brought under GCR 1963, 117.2(1), and the court rule only mandates such affidavits for motions brought under GCR 1963, 117.2(3).