(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 (GrCR 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 *361upon 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 per-foi’m 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 *362Rule 204.1, may await the outcome of the plaintiff’s suit against him and then, should he he 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 GrCR 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 defend*363ants 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 cither 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.” Lori*364mer v. Julius Knack Goal Co. (1929), 246 Mich 214, 217 (64 ALR 210).
For an identical statement of the rule, see Saftel-berg er 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 *365is in a sense an incident which follows the principal event ont 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 fi*om 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, gee 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 ALE 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.”
*366The following additional authorities are directly in point: Wnek v. Boyle (1953), 374 Pa 27 (96 A2d 857); Schott v. Colonial Baking Co. (US DC Art, 1953), 111 F Supp 13; Godfrey v. Tidewater Power Co. (1943), 223 NC 647 (27 SE2d 736, 149 ALR 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,’ ”
Prom 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 *367to 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 Boyal 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 *368practical 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 summarise:
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, *369as against another tort-feasor, should they he compelled to pay damages to the plaintiff. Now that section 600.2925 has lifted the former har 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 contribu*370tion as against the road commission, likewise come to total defeat 1
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.
*3711 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 immune4 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 G-CR. 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 *372was 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 *373not 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 Joiner6 presented *374what is probably the best extant coxnpendinm 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 BJA 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 Buie 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 FED 238.”
Lastly, consider the latest descriptive summary Messrs. Honigman and Hawkins have provided (1 Honigman & Hawkins, Mich Court Buies Annotated [2d Ed], 1969 pocket supp at p 83):
“(a) The effect of BJA §2925. Before the contribution among joint tort-feasors’ statute was *375amended in EJA § 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 nest to the last sentence in (1) is inserted to accomplish the result intended in Eule 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 continu-ant 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. *376Under 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 con*377tribution is based on equitable principles and bas 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, *378duty 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 plain*379tiffs cannot insist on its benefits because tbe 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.The noun “person” is stressed purposely as reference to section 224.21 proceeds. The ensuing text will explain fully.
“The next to last sentence in (1) is inserted to accomplish the result intended in Bule 204.1, that the right of contribution should not depend on whether or not the plaintiff saw fit to sue both joint tort-feasors.”
To ascertain precisely that these primary defendants could not have given the statutory notiee, 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 eause to be served within 60 days after sueh injury shall have occurred, a notice in writing upon the elerk and upon the chairman of the board of county road commissioners of such board, which notiee shall set forth substantially the time when and place where such injury took place, the manner in whieh 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 sueh injury intends to hold such county liable for such damages as may have been sustained by him.” (Emphasis supplied by present writer.)
See the this-or-that penultimate paragraph of the Court’s opinion, quoted post with comment.
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 eleet to sue separately or join together? That is the kind of abuse EJA § 2925 was revised to avoid, See committee comment.”
Cochairman 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.
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.”
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 legisla-tiv.e purpose.