T.M. KAVANAGH, J.
The primary issue raised below and saved for appeal in this cause is whether the 60-day notice requirement of § 8 of chapter 22 of the general highway statute is constitutionally infirm when applied to a plaintiff rendered mentally or physically incapacitated by the alleged tortious act of a state or municipal defendant giving rise to the asserted cause of action. This issue has been alluded to previously by this Court but never presented squarely for decision. (See Boike v. City of Flint, 374 Mich. 462, 464; Trbovich v. City of Detroit, 378 Mich. 79, 88, 99.)
CL 1948, § 242.8 (Stat Ann 1958 Rev § 9.598); repealed and superseded by PA 1964, No 170 (MCLA § 691.1401 et seq. [Stat Ann 1969 Rev § 3.996(101) et seq.]).
On March 14, 1961, plaintiff, who was then 19 years of age, was a passenger in an automobile being driven in a northerly direction on Ottawa Street in the City of St. Johns. Ottawa Street ends at Floral Street at a "T" intersection. It is alleged that as plaintiff's driver proceeded towards this intersection, the automobile struck a rut or chuckhole, splashing muddy water across his windshield, thereby obscuring his vision and causing him to lose control of the car and strike a tree located north of Floral Street.
Plaintiff alleges that he, unconscious and in a state of shock, was taken by ambulance to a hospital where he was treated for a fractured jaw and other fractured facial bones, a skull fracture and a brain concussion. It is further alleged that, as a result of this collision, plaintiff was rendered completely and permanently blind in both eyes.
Plaintiff was discharged from the hospital on April 2, 1961, but alleges he continued under the care and treatment of physicians until some time during the latter part of August 1961.
On July 5, 1961, plaintiff filed a nomination of guardian with the Clinton County Probate Court, naming Keith B. Grubaugh as his guardian. Keith Grubaugh, on behalf of plaintiff, filed a notice of claim with defendant city on September 5, 1961.
An amended notice of claim of damages was served upon the defendant on March 5, 1963, and on the eve of the second anniversary of the accident — March 13, 1963 — a civil complaint was filed.
Defendant, appearing specially, moved to dismiss the complaint on the ground that plaintiff had failed to serve written notice of claim within 60 days as required by CL 1948, § 242.8 (Stat Ann 1958 Rev § 9.598) and the city charter.
Plaintiff filed an answer to this motion claiming impossibility of compliance with the 60-day notice requirement and alleged in an amendment to his complaint that defendant city had notice of all the facts and circumstances surrounding the accident, since its police department fully investigated the accident on the evening of its occurrence and the following day. After oral argument on the motion and upon submitted briefs by all parties, the circuit judge denied defendant's motion, holding that plaintiff's claim that he was incapacitated from giving notice within 60 days was a jury question and that if the jury found the plaintiff was incapacitated, he was excused from the requirement to give notice within the specified period of time.
On November 12, 1964, defendant city filed its appearance, and on February 24, 1965, filed an answer to the plaintiff's complaint. On this latter date defendant also filed a motion for rehearing of the motion to dismiss predicated upon Boike v. City of Flint, supra, which had been decided 22 days earlier. Plaintiff filed an answer to this motion for rehearing, contending that the notice provisions relied upon by defendant city were unconstitutional as related to minors and other persons under physical, mental, or other disability as being violative of the due process and equal protection guarantees of our state and Federal Constitutions.
On November 6, 1968, the circuit judge rendered an opinion granting defendant's motion to dismiss on the basis of the Supreme Court decisions in Boike v. City of Flint, supra, and Trbovich v. City of Detroit, supra, as well as the decision in Kowalczyk v. Bailey (1965), 1 Mich. App. 551, affirmed (1967), 379 Mich. 568, but did not discuss the constitutional questions now present on this appeal. Leave to appeal to this Court was granted prior to decision of the Court of Appeals. GCR 1963, 852.
The basic constitutional question considered herein is whether the statutory requirement of written notice, as a condition of holding a governmental unit or agency liable for tort, is violative of the concepts of due process and equal protection of the law contained in our state and Federal Constitutions.
Const 1963, art 1, §§ 2, 17; US Const, Am 14, § 1.
In discussing the due process of law question we must consider the nature of its guarantee. The constitutional guarantee that "no person shall * * * be deprived of * * * property, without due process of law" is, in its most fundamental sense, a limitation upon arbitrary power and a guarantee against arbitrary legislation demanding that the law shall not be unreasonable, arbitrary or capricious and that the means selected shall have a real and substantial relation to the object sought to be attained. See, generally, 2 Cooley, Constitutional Limitations (8th ed), p 733.
Const 1963, art 1, § 17.
It is axiomatic that the constitutional provision of due process extends to protect that "property" construed to be a vested right and that generally an accrued right of action is a vested property right which may not be arbitrarily impinged. See 16 Am Jur 2d, Constitutional Law, § 421 et seq.
In determining whether a vested right had accrued to plaintiff under the remedial statute here involved, we turn to 2 Cooley, supra, where the full dimension of the issue was expressed at p 745:
"Nevertheless, in many cases and many ways remedial legislation may effect the control and disposition of property, and in some cases may change the nature of rights, give remedies where none existed before, and even divest legal titles in favor of substantial equities where the legal and equitable rights do not chance to concur in the same persons.
"The chief restriction upon this class of legislation is, that vested rights must not be disturbed; but in its application as a shield of protection, the term `vested rights' is not used in any narrow or technical sense, or as importing a power of legal control merely, but rather as implying a vested interest which it is right and equitable that the government should recognize and protect, and of which the individual could not be deprived arbitrarily without injustice. The right to private property is a sacred right; not, as has been justly said, `introduced as the result of princes' edicts, concessions, and charters, but it was the old fundamental law, springing from the original frame and constitution of the realm.'" (Emphasis added.)
The precise issue of the accrual of a vested right under a remedial statute has been previously examined by our Court. In Minty v. Board of State Auditors (1953), 336 Mich. 370, Justice DETHMERS posed the issue as follows (pp 375, 376):
"Decision must depend upon analysis of the essence of the State's waiver of sovereign immunity in the 1943 act. Did it impose a liability on the State under certain circumstances and thus create a cause of action, a right, or did it amount merely to a consent to be sued, the affording of a remedy? If the latter, it clearly gave rise to no vested right, but only a privilege which the State could withdraw at any time even though the withdrawal served to destroy the remedy in relation to causes of action which had already accrued and to terminate suits thereon already pending." (Emphasis added.)
Answering the question thus posed, Justice BOYLES, speaking for the majority of the Court, held that the statute was not merely a consent by the state to be sued or a waiver of immunity from the right to sue the state, but rather a waiver of immunity from liability and an express assumption of liability by the state (pp 394, 395):
"Thus the opinion conforms to the conclusion reached by the earlier decisions of the Court, that by consenting to be sued, in section 8 of the court of claims act, the State did not thereby waive the right to rely on its sovereign immunity from liability as a defense in said suit.
"By section 24 of the 1943 act the State assumed liability for damages arising out of the negligence of State officers or employees which the plaintiff claims was the cause of her injury. That act did not merely provide a forum, or procedure to be followed. It gave rise to a cause of action which had not existed prior to its adoption — a right to recover damages from the State which had not existed prior thereto because of the governmental immunity of the State from responding in damages for such cause of action. The 1945 amendment was not an act which merely deprived plaintiff of the right to sue the State. It is not retroactive. It operated in futuro. She still had the right to sue the State in the court of claims, under section 8 of the act. Furthermore, plaintiff has a vested right in a cause of action which arose while section 24 of the 1943 act creating that right was in effect. I do not agree that the 1945 amendment merely operated to deprive plaintiff of the right to bring suit against the State in the court of claims. Insofar as her right to recover damages in such suit as against the defense of governmental immunity, she has a vested right in her cause of action which arose at a time when the State had waived the defense of governmental immunity and expressly assumed such liability."
The Court's conclusion in Minty and its necessary result was predicated upon the firmly established rule expressed in 1 Lewis' Sutherland Statutory Construction (2d ed), § 284, and repeated by the Court at p 391:
"`By the weight of authority, a statutory right of action for damage to person or property, which has accrued, is a vested right and likewise to be protected.'"
The pertinent statute in the instant case has likewise been previously determined by our Court to create an assumption of liability. In Joslyn v. City of Detroit (1889), 74 Mich. 458, the Court stated at p 460:
"This statute was passed in May, 1879. It makes the city not only liable for injuries occurring through neglect to keep the streets in repair, but also for such as occur by reason of the neglect of the city to keep its streets in a condition reasonably safe and fit for travel. The duty is imposed in both cases, and the necessity for it exists in the one case just as much as in the other, and the liability is the same, and it is very manifest that the legislature intended to make it so. It was the object of the Legislature in the passage of this statute to avoid the decisions of this Court, by which, before the passage of the act, the law by construction was made to relieve the municipality from all liability of this kind, and we think the statute should be so construed as to affect the object intended by the Legislature.
"If further evidence of the intention of the Legislature upon this subject is desired, I think it may be found in the act of 1887, pages 345 and 346, when it discarded the narrow limits of the common-law liability entirely, as heretofore held by this Court and some others."
See, also, the more current reaffirmance of this construction by our unanimous Court in Kowalczyk v. Bailey (1967), 379 Mich. 568.
The statute in question, by waiving immunity from liability, puts the state and its municipalities upon the same legal footing and subject to the same substantive rules which are applied to any controversy involving a negligent tortfeasor.
The substantive right to proceed against the governmental tortfeasor, as distinguished from merely procedural requirements, must arise under the same conditions and undiminished by any special exemption as any other comparable cause of action. By way of analogy, the United States Supreme Court, construing the nature and scope of liability created by waiver of immunity under the Federal Tort Claims Act, 28 USCA § 2671 et seq., stated in Indian Towing Co., Inc. v. United States (1955), 350 U.S. 61 ( 76 S Ct 122, 100 L Ed 48):
"The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws. Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it. (Pp 68, 69.)
See, also, United States v. Muniz (1963), 374 U.S. 150 ( 83 S Ct 1850, 10 L Ed 2d 805).
Rejecting "the casuistries of municipal liability for torts" as grounded upon the historical doctrine of sovereign immunity ( Indian Towing Co., Inc., supra, at p 65) and adopting the above construction to our own legislation, we hold that this cause of action is entitled under the due process clause to the same protection against arbitrary interference as any other right.
Under the facts of the instant case, we conclude that the cause of action here pleaded by plaintiff was an accrued vested right and, as such, is pari causa with traditional proprietary rights and is to be equally protected from arbitrary interference.
It is argued in this case that our Court in Moulter v. Grand Rapids (1908), 155 Mich. 165, held (pp 168, 169):
"It being optional with the legislature whether it would confer upon persons injured a right of action therefor or leave them remediless, it could attach to the right conferred any limitations it chose. Whether the limitations imposed are reasonable or unreasonable in such cases are questions for the legislature, and not for the courts."
The logical result of such a rule under that holding, and as advocated by defendant in the instant case, would be to legislatively divest plaintiff, under legal disability as he was during the 60-day period, of a vested right without due process of law.
Under the statute a plaintiff could institute suit on the first or fifty-ninth day after the injury. To take away his cause of action on the sixty-first day because he could not meet the notice provisions of the act would deprive him of a vested right of action without due process of law.
The reasons traditionally advanced for such differential treatment were expressed by our Court in Pearll v. Bay City (1913), 174 Mich. 643, at p 647:
"The purpose of the charter provision is to furnish the municipal authorities promptly with notice that a claim for damages is made, and advise them of the time, place, nature, and result of the alleged accident, and a sufficient statement of the main facts, together with names of witnesses, to direct them to the sources of information that they conveniently may make an investigation."
See, also, Northrup v. City of Jackson (1935), 273 Mich. 20; Rottschafer v. East Grand Rapids (1955), 342 Mich. 43; Harrington v. Battle Creek (1939), 288 Mich. 152; Meredith v. City of Melvindale (1969), 381 Mich. 572.
Even if we assume the above original policy considerations were once valid, today they have lost their validity and ceased to exist due to changed circumstances. In recent years most governmental units and agencies have purchased liability insurance as authorized by statute. MCLA § 691.1409 (Stat Ann 1969 Rev § 3.996[109]). In addition to insurance investigators, they have police departments and full-time attorneys at their disposal to promptly investigate the causes and effects of accidents occurring on streets and highways. As a result these units and agencies are better prepared to investigate and defend negligence suits than are most private tortfeasors to whom no special notice privileges have been granted by the legislature.
We note that a driver involved in an accident resulting in personal injury is legally required to "forthwith report such accident to the nearest or most convenient police station or police officer." MCLA § 257.622 (Stat Ann 1968 Rev § 9.2322).
In view of the above, we reject and overrule the reasoning under the rule in Moulter, supra, and condemn the purely capricious and arbitrary exercise of legislative power whereby a wrongful and highly injurious invasion of rights is sanctioned and the litigant who fails to submit the required notice of claim is stripped of all real remedy.
We hold that the notice provisions of § 8 of chapter 22 of the general highway statute are constitutionally void as depriving claimant of due process of law.
Since we dispose of this case on the basis of this plaintiff's right to due process, we do not discuss the briefed argument that the 60-day notice requirement in every case violates the equal protection clauses of the state and Federal Constitutions. Such question will undoubtedly arise in some new case where a fully competent adult is the victim.
The order of the trial court dismissing plaintiff's cause of action is reversed and the cause remanded for trial. Plaintiff shall have costs.
BLACK and T.G. KAVANAGH, JJ., concurred with T.M. KAVANAGH, J.
DETHMERS and ADAMS, JJ., concurred in the result.